Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. The Committee notes the detailed report supplied by the Government. It also notes the information concerning the repeal in 2003 of the Harbours Act and of the General Harbour Regulations and the publication in 2004 of the new code of practice for health and safety in port operations, replacing the Port Safety Guidelines of 1997. The Committee notes with interest the Government’s information that this new code of practice is based on the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152). It also notes that, in its report concerning the application of the Convention, the Government refers almost exclusively to the new 2004 code of practice. The Committee requests the Government to clarify the legal status of the new code of practice for health and safety in port operations of 2004, and to indicate the legislation in force giving effect to the provisions of the Convention.

2. Article 1 of the Convention. Scope of application. The Committee notes that following the legislative developments indicated above, the main legislation applying the Convention appears to be the Health and Safety in Employment Act, 1992 and, as regards ships’ lifting appliances, Maritime Rule No. 49 made under the Maritime Transport Act, 1994. It further notes that the scope of application of the Health and Safety in Employment Act, 1992, is restricted to persons working on board a ship on condition that: (a) the worker has a New Zealand employment agreement; or (b) the ship is: (i) registered in New Zealand; or (ii) a foreign ship on demise charter to a New Zealand operator. With reference to the definitions of “processes” and “worker” in Article 1 of the Convention, the Committee requests the Government to clarify how full effect is given to the Convention in law and practice.

3. Article 17 and Part V of the report form. Application in practice. The Committee notes the Government’s reply to the observations of the New Zealand Council of Trade Unions (NZCTU) of 2001 concerning: (i) delays in obtaining assistance at weekends and at night; (ii) unclear jurisdictions in the field of safety and health in dock work; and (iii) available data for establishing the location of accidents and assessing the incidence and severity of incidents. The Committee also notes that, in its latest report, the Government refers to new observations made by the NZCTU and replies to them. With regard to these observations, the Committee notes that although the NZCTU supports the Government’s efforts to improve the application of the Convention, it considers that the Convention is not fully applied in practice with regard to the following points:

(i)    Inspection visits and investigations in ports. The Committee notes the statement by the NZCTU that the competent authority (Maritime New Zealand – MNZ) did not conduct an official investigation further to a serious port accident in 2006. In order to prevent future accidents, the maritime sector trade unions requested the setting up of random inspections since the NZCTU considers that regular inspections are anticipated and irregularities cannot be detected. The Committee notes that the Government states that the competent authority does not conduct an investigation for every incident reported. Moreover, the Committee notes that the NZCTU asks the MNZ to provide increased surveillance with regard to lifting appliances, particularly after defects in equipment have been observed, especially on vessels flying a foreign flag, random inspections having to be made preventively and not following accidents which necessitate repairs to equipment. The Committee notes the Government’s indication that maritime safety inspectors do not have a duty to undertake random inspections but to inspect vessels before the unloading of cargo. The Government adds that cranes are tested every five years in addition to an annual visual inspection and they must be covered by a certificate of conformity. The Committee requests the Government to continue supplying information concerning the practical application of the Convention and, in particular, to indicate the manner in which it is ensured that health and safety provisions are observed in order to prevent accidents.

(ii)    Inspection service resources. The Committee notes the statement by the NZCTU that the lack of inspection staff and resources and also restructuring make it impossible to establish a comprehensive and effective prevention system. The Committee also notes that the Government states that the budget of the Department of Labour, Health and Safety Services was increased in July 2007, thus enabling the identification of requirements, increase of staff, provision of advice and information, and reinforcement of the services responsible for application of the Convention. The Government adds that the creation of the “Workplace Group” is a restructuring measure designed to make the best use of resources, and new procedures for responding to any incident have now been in operation for five years. Finally, the Committee notes that the Department of Labour has established a new approach, including a policy to ensure more consistent enforcement of health and safety standards in ports and targeting workplaces with poorer performance. The Committee requests the Government to keep it informed of any progress made in this field and to send any available information enabling an evaluation of the effectiveness of the inspection services and also the impact of consistent application of health and safety standards in dock work.

(iii)   Consultation and action on safety and health issues. The Committee notes the statement by the NZCTU that the reluctance of the directors of certain ports to consult the workers concerning operations and equipment connected with safety and health increases the risk of accidents. The NZCTU adds, however, that the MNZ has favoured a tripartite partnership including the establishment of training and safe working methods. The Committee notes the Government’s indication that, in 2003, provisions concerning the participation of workers in the area of safety and health came into force, the employers being obliged to give the workers the opportunity to participate effectively in procedures designed to improve occupational safety and health. The Committee requests the Government to keep it informed of any progress made in this area, and to supply all available information enabling an evaluation of the impact of consultations and the participation of workers concerning industrial accidents and also a copy of the provisions which came into force in 2003 concerning the participation of workers in the area of safety and health.

4. With regard to the invitation made by the Governing Body to the States parties to Convention No. 32 to consider the ratification of the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152) – the ratification of which would automatically entail an immediate denunciation of Convention No. 32 – the Committee notes that the Government does not at present envisage ratifying this instrument. Although the Government and Business New Zealand strongly support the adoption of suitable provisions in safety and health for all workers in all sectors of activity, the Government considers that ILO Conventions covering specific sectors may be less appropriate than universal standards establishing a minimum framework for all sectors. The Committee would be grateful if the Government would keep it informed of all new developments in this respect.