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

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

The Committee notes the Government’s report, as well as the comments of the New Zealand Council of Trade Unions (NZCTU), received on 28 August 2009, and the Government’s reply received on 30 August 2009. It also notes the comments of Business New Zealand, received on 30 August 2009.

Articles 5(a) and 21(e) of the Convention. Effective cooperation between the labour inspection services and the justice system. Referring to its 2007 general observation, the Committee notes with interest that, according to the Labour Department’s policy “Keeping Work Safe”, the Department provides guidance to judges on sentencing according to its enforcement principles after a decision is taken to prosecute a case. However, as the Government has not provided any further information on measures aimed at promoting effective cooperation between the labour inspection services and the justice system, the Committee invites the Government to refer to paragraph 158 of its General Survey of 2006 and to its general observation of 2007, to take appropriate measures and to provide relevant information to the ILO.

Articles 10 and 16 of the Convention. Number of labour inspectors and inspections. The Committee notes the NZCTU’s allegations concerning the reduction in the number of inspections of workplaces in general, and particularly of random inspections, in recent years. It refers to reports to the Australasian Workplace Relations Ministers’ Council, which indicate a decrease in the number of active field inspectors in occupational health and safety from 1.2 inspectors per 10,000 employees in 2001 to 0.8 inspectors per 10,000 employees in 2004 and a decrease of inspections by health and safety inspectors from 26,405 in 1995 to less than 5,000 by 2005–06. Despite the slightly increased level of inspections since 2006, the NZCTU still considers them insufficient as an effective deterrent to violations of provisions respecting labour conditions. The Committee notes in this regard the Government’s indication that the number of health and safety inspections has increased from 5,717 in 2005–06 to 8,196 visits in 2008–09 and that the number of safety and health inspectors has increased slightly from 166 in 2004 to 172 in 2008 (156 safety and health inspectors, 12 specialist positions and four professional leadership positions). The Committee also notes that the total number of labour inspectors responsible for the enforcement of general conditions of work is only 33, of whom five are assigned to the Recognized Seasonal Employer (RSE) scheme, which targets the horticulture/viticulture sector. The Committee requests the Government to take appropriate measures in the near future to ensure that the number of labour inspectors (general labour inspectors and safety and health labour inspectors) is sufficient for the effective enforcement of laws and regulations respecting labour conditions in industrial and commercial workplaces liable to inspection.

Articles 3, paragraphs 1 and 2, 5, paragraph 1, 6, 12, 15(c) and 17. Additional duties entrusted to labour inspectors. Mobilization of resources and incompatibility in the light of the objectives pursued. The Government’s reply to a comment by the NZCTU indicates that labour inspectors and immigration officers carry out joint inspections. According to the Government, this is the case in the RSE programme, as well as in so-called crisis situations under the Decent Work Taskforce. The Government indicates that other areas for such cooperation are under consideration. The Committee refers in this regard to paragraphs 75 to 78 and 161 of its General Survey of 2006 on labour inspection in which where it recalls that the principal function of labour inspection is not to enforce immigration law and that, given that the human and other resources available to inspection services are not unlimited, the volume of inspection activities devoted to conditions of work is likely to be diminished in relation to those concerning the legal status of workers under immigration law. It also emphasized that neither Convention No. 81 nor the Labour Inspection (Agriculture) Convention, 1969 (No. 129), contain provisions suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status. The Committee further emphasized that, to be compatible with the objective of labour inspection, the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers. It therefore advocated caution in any collaboration between the labour inspectorate and the immigration authorities, since such objective can only be met if workers are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and protection of workers. To ensure effective and efficient collaboration by all workers with labour inspectors, foreign nationals residing illegally in the country, who are among those who presumably suffer most from abusive conditions of work, should not fear the double penalty of losing their jobs and being expelled. The Committee therefore urges the Government to take measures to ensure that the powers of inspectors to enter workplaces liable to inspection are not misused for the implementation of joint operations to combat illegal immigration. It requests the Government to take measures to promote collaboration by the services responsible for combating illegal immigration with the labour inspection services, in such a manner that these services notify the labour inspectorate of cases of illegal immigrants apprehended outside a workplace who are engaged in a labour relationship covered by the Convention. Labour inspectors should accordingly be in a position to ensure their protection in accordance with the powers conferred upon them under the terms of the Convention and national labour legislation.

Articles 17 and 21(e). Consistency of decision-making by labour inspectors. Development of a coherent prosecution policy and statistics on enforcement actions. The Committee notes with interest that the Labour Department has completed a range of work to improve the consistency and transparency of enforcement (of health and safety legislation in particular). In this regard, it notes that the prosecution panel which was set up as a means of learning about consistency in decision-making and enforcement processes has completed its evaluation and a Labour Department enforcement policy, “Keeping Work Safe” (which can be accessed through the link: http://www.dol.govt.nz/publications/
research/keeping-work-safe/index.asp), has been developed and was officially released in 2009 following public consultation in 2008. The policy explains the various enforcement tools available to the Department and provides specific guidance relating to enforcement. The policy is supported by the development of internal policy guidelines and various improvements in practice to assist staff in its application. The Committee welcomes the fact that the government policy provides for the publishing of details of cases where this is considered appropriate, which might have a dissuasive effect, and it asks the Government to provide details of cases in which the labour inspectorate has made use of this possibility.

Noting that the Labour Department adheres to the principle of the use of the minimum enforcement necessary, it requests the Government to ensure that, with a view to the credibility of the labour inspectorate and as requested by the NZCTU, labour inspectors do not fail to apply sanctions where appropriate with a view to ensuring that the system is dissuasive in practice.

Noting that, based on the evaluation of the prosecution panel, it is envisaged to develop new methods to improve the consistency of decision-making and investigation practice, the Committee asks the Government to keep the ILO informed in this regard and to provide copies of any relevant documents.

Articles 20 and 21. Publication and content of the annual inspection report. The Committee notes that the annual report of the Labour Department (available on the government web site at www.dol.govt.nz) does not contain all the statistics needed by the Committee to make an evaluation of the operation of the labour inspection system. The Government is requested to ensure that an annual inspection report in accordance with the requirements of Article 21 is published and made available to the ILO.