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

Worst Forms of Child Labour Convention, 1999 (No. 182) - New Zealand (Ratification: 2001)

The Committee notes the Government’s detailed report. It also notes the comments made by Business New Zealand.

Article 3(d) of the Convention. Hazardous work. 1. Minimum age for admission to hazardous work. The Committee previously noted that, by virtue of section 54(d) of the Health and Safety in Employment Regulations of 1995 (HSE Regulations), “every employer shall take all practicable steps to ensure that no employee under the age of 15 works in any area at a place of work under the control of that employer ... at any time when any work is being carried out in that area that is likely to cause harm to the health and safety of a person under the age of 15 years”. It had observed that the prohibition did not extend to children under 18 years of age, as specified under Article 3(d) of the Convention.

The Committee also noted the allegation of the New Zealand Council of Trade Unions (NZCTU) that in 2006, about 300 children under 15 years visited their local doctor for a work-related injury and that accident compensation entitlements and rehabilitation assistance were provided to between 1,000–2,000 children between the ages of 15 and 19. The NZCTU contended that there was widespread under-reporting of accident compensation claims and workplace accidents. In this regard, the Committee noted the Government’s response that while it shared the concerns raised by the NZCTU with regard to the workplace injuries of children and young persons, which in some cases proved fatal, legislative protections existed to protect young persons. The Government also stated that it was aware of the under-reporting of accident claims and workplace injuries. The Committee further noted the information from the Government report on the prosecutions in 2007 and 2008 related to workplace injuries sustained by a 14-year-old child with partial amputation of three fingers on a snip saw; the death of a 12-year-old who fell from a truck; and a 17-year-old who had his fingers and wrist crushed by a pastry machine.

The Committee notes the Government’s statement that the existing legislative protections generally ensure that young people are not exposed to hazardous work and that employers have an obligation to ensure a healthy and safe working environment, as well as duties related to training and supervision. Business New Zealand also states that the existing legislative framework provides effective age thresholds for entry into work, particularly when read together with the obligation on all employers to provide their employees of whatever age, with a safe and healthy working environment. However, the Committee also notes the information in a research paper entitled “School children in Paid Employment – A summary of research findings” produced by the Department of Labour in September 2010 (DoL Report of 2010) according to which employers are not effective in raising schoolchildren’s awareness of hazards, nor their rights, in the workplace as expected under the Health and Safety in Employment Act (1992). The DoL Report of 2010 states that one study found that a third of secondary school students indicated that their employers had not provided them with any information about workplace hazards. Moreover, this DoL Report of 2010 indicates that inadequacies in training and supervision of children in workplaces were also frequently reported. The Committee, therefore, notes with concern the information in the DoL Report of 2010 indicating that the existing legislative protections, which rely on the employer to protect children under the age of 18 from work place hazards, do not appear in practice to be fully and effectively protecting children from hazardous work.

Moreover, the Committee notes the information in the DoL Report of 2010 according to which injuries are a common and occasionally serious occurrence in school children’s workplaces, with one-sixth of secondary school students in part time work reportedly being injured at work in the past year. The DoL Report of 2010 states that while half of these injuries appear to be relatively minor, around a fifth of such injuries were severe enough to warrant a visit to a medical professional or hospital. Moreover, the DoL Report of 2010 indicates that children aged 15–16 were more likely to have had an injury than children aged 13–14, and that 20 per cent of working children of 16 years of age had had an employment injury. The Committee further notes that the Committee on the Rights of the Child, in its concluding observations of 11 April 2011, expressed concern that children between the ages of 15 and 18 are allowed to work in dangerous workplaces (CRC/C/NZL/CO/3-4, paragraph 41).

The Committee must express its serious concern that children between 15 and 18 years of age are allowed, in law and in practice, to perform the types of work which are clearly hazardous, as previously acknowledged by the Government and supported by the Department of Labour’s research. The Committee must, therefore, emphasize that, by virtue of Article 3(d), work which, by its nature and the circumstances in which it is carried out, is likely to harm the health, safety or morals of children under 18, constitutes one of the worst forms of child labour and that, by virtue of Article 1 of the Convention, member States are required to take immediate and effective measures to ensure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee also recalls that Paragraph 4 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190) addresses the possibility of authorizing the employment or work of young persons as from the age of 16 under strict conditions that their health and safety be protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity. The Committee urges the Government to take immediate and effective measures to comply with Article 1 of the Convention, read with Article 3(d), to prohibit children under 18 years of age from engaging in hazardous and dangerous work. However, where such work is performed by young persons between 16 and 18 years of age, the Committee urges the Government to take the necessary measures to ensure that such work is only carried out in accordance with the strict conditions set out in Paragraph 4 of Recommendation No. 190, namely that the health and safety of such young persons be protected and that they receive adequate specific instruction or vocational training in that activity. The Committee requests the Government to provide information on the progress made in this regard.

2. Self-employed children. The Committee previously noted that the HSE Regulations, which contain provisions for the employment of children in hazardous occupations, only apply to a “place of work under the control of that employer” (section 54). However, it noted the Government’s statement that the provisions restricting the employment of children in hazardous work (15 years) and night work (16 years) under the HSE Regulations had been amended, in order to cover self-employed children working as independent contractors. It requested a copy of the Regulations, as amended.

The Committee notes that on 1 April 2009, the HSE Amendment Regulations came into force. In this regard, it notes that section 58A of the HSE Regulations has been amended to state that sections 58B to 58E (prohibiting injurious tasks, the use of machinery and the use of tractors) apply to a principal who engages a person under the age of 15 years as a contractor to do any work (except residential work), and that section 58F (prohibiting night work) applies to a principal who engages a person under the age of 16 years as a contractor to do any work (except residential work). The Committee, accordingly, notes that these amendments restrict young persons under 15 years who are working as independent contractors from working in hazardous workplaces or doing hazardous work, and persons under 16 from engaging in night work. The Committee observes that these revisions do not ensure the protection of persons between the ages of 16 and 18 working as contractors from engaging in hazardous work, but notes the statement from Business New Zealand that when contractors between the ages of 16 and 18 are working on an employer’s premises, they are subject to the same safety and health constraints that apply to the employer’s own employees. The Committee recalls that, pursuant to Article 3(d) of the Convention, all persons under the age of 18, including self-employed workers, are entitled to be protected against types of work, which by their nature or the circumstances in which they are carried out, are likely to harm their health, safety and morals. Accordingly, the Committee urges the Government to take immediate and effective measures to ensure that all self-employed workers and independent contractors under the age of 18 years are protected from hazardous work. It requests the Government to provide information on progress made in this regard.

Article 4(1). Determining the types of hazardous activities prohibited to persons under 18 years of age. The Committee previously noted the Government’s indication that children under 18 years cannot work in any restricted areas of licensed premises, such as bars, licensed restaurants or clubs. However, it also noted the Government’s statement that, pursuant to sections 54–58 of the HSE Regulations, only employees under 15 years of age are prohibited from working in a number of high-hazard workplaces, such as in construction, logging and tree-felling operations, in work where goods are being manufactured and prepared for sale, in work with any machinery, lifting heavy loads or performing other tasks likely to be injurious to the employee’s health, night work and driving or riding any tractor or heavy vehicles.

The Committee notes the information in the Government’s report that research has found that children represent a significant proportion of farm injuries, with nearly one fifth of all injuries on farms occurring in children aged 15 and younger. The Government indicates that the majority of child fatalities occur on farms, most typically with regard to children aged 10–14 years riding in vehicles to shift stock, and that this was being addressed through a safety campaign on the subject of quad bikes. The Committee also notes that the DoL Report of 2010 identifies the construction, agriculture and hospitality industries as posing the most risk to young workers. The DoL Report of 2010 also identifies some types of work which are more dangerous to young persons: by volume, working in shops (including petrol stations and supermarkets) and working in restaurants, takeaway outlets and other eateries. These types of activities are the largest contributors to workplace injuries and account for 60 per cent of injuries to schoolchildren in regular part-time work. Noting that the DoL Report of 2010 identifies the sectors posing the most risk to young workers (construction, agriculture and hospitality), as well as the types of activities which are most injurious, the Committee reminds the Government that, pursuant to Article 4(1) and (3) of the Convention, the types of work which, by their nature or the circumstances in which they are carried out, are likely to harm the health, safety or morals of children, shall be determined by national laws or regulations, and that this list shall be periodically examined and revised as necessary, in consultation with the organizations of employers and workers concerned. Observing that the types of work most hazardous to young persons have been identified by the Government, the Committee urges the Government to take the necessary measures to ensure the determination of a list of types of hazardous work to be prohibited for all persons under 18 years of age, in consultation with the organizations of employers and workers concerned.

Article 5. Monitoring mechanisms. Occupational safety and health service. The Committee previously noted the Government’s statement that the Department of Labour was continuing to investigate workplace practices relating to persons between 16 and 18 years of age engaged in hazardous work. The Committee requested information on the outcome of these investigations.

The Committee notes the Government’s statement that the monitoring of health and safety outcomes is becoming more systematic. The Government states that it is using the “serious injury outcome indicators” developed for the New Zealand Injury Prevention Strategy to monitor the performance in reducing serious injury for the population as a whole and for persons under 14. The Committee also notes the Government’s statement that in May 2010 the Department of Labour launched an online toolkit entitled “My First Job” with a view to improving awareness on children’s employment rights. The Government also indicates that in 2011, the Department of Labour released a new National Action Agenda, which is a strategic approach to reducing work-related injuries and fatalities that focuses on five sectors, including agriculture and construction.

While noting the programmatic measures taken by the Government, the Committee notes an absence of information regarding investigations carried out by the Department of Labour. Observing that children of 15 years and above are allowed to perform hazardous work, the Committee requests the Government to provide information on the results of the investigations carried out by the Department of Labour on workplace practices related to persons between 15 and 18 years engaged in hazardous work.

Parts IV and V of the report form. Application of the Convention in practice. The Committee previously noted the Government’s indication that, during the period 2007–08, there were three prosecutions under the HSE Act and HSE Regulations regarding injuries sustained by young persons under 18 years at the place of employment.

The Committee notes the statement by Business New Zealand that the kind of work (and working conditions) about which the Committee is concerned are not found in New Zealand and that all work undertaken is subject to strict safety and health controls. It states that, until the age of 16, work can only be undertaken on a part-time or casual basis. Business New Zealand states that where serious workplace accidents occur, there has recently been a considerable increase in the penalties imposed on employers by the courts. However, the Committee notes the Government’s statement that there have been no prosecutions in respect of the prohibition contained in the HSE Act or Regulations on engaging a young person under the age of 15 in hazardous work, despite the information in the DoL Report of 2010 that 17 per cent of students in part-time work under the age of 15 reported a work-related injury in the past year, some of which were serious injuries. The Committee requests the Government to provide information on the number of workplace accidents and injuries involving all persons under 18 years of age, as well as the subsequent investigations and prosecutions, with its next report. It also requests the Government to supply statistics on the employment of children and young persons in hazardous work and extracts from the reports of inspection services as soon as this information becomes available. To the extent possible, all information provided should be disaggregated by age and sex.

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