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

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

Other comments on C081

Observation

Direct Request

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

Article 2 of the Convention. Scope of application of labour inspection. In reply to the Committee’s previous comment, the Government indicates that New Zealand employment law applies to people employed under New Zealand employment agreements, but generally not to workers whose employment agreements are with overseas employers and subject to another country’s employment laws. The Government refers to such workers as entering on “Special Purpose Visas” which are temporary and granted for generally short periods, on conditions including that the workers will be sufficiently paid for maintenance and accommodation. The Committee notes that the Chinese workers employed in New Zealand under China–New Zealand free trade agreement were carrying out repairs or removing asbestos from locomotives that their employer in China previously supplied. The Committee requests the Government to indicate how it ensures that the system of labour inspection applies to all workplaces in respect of which legal provisions relating to conditions of work and the protection of workers while engaged in their work are enforceable by labour inspectors, including for workers that are deployed to work in New Zealand under special purpose visa arrangements. The Committee also requests the Government to provide information on the number of individuals deployed to work in New Zealand under special purpose visa arrangements, the length of their temporary arrangements, and the steps taken to ensure that these individuals receive adequate pay and accommodation.

Article 3(1) and (2). Additional duties entrusted to labour inspectors. In response to the Committee’s previous comments on this issue, the Committee notes the indication in the report of the Government that the labour inspectorate investigates and enforces laws and regulations where potential breaches of employment standards are detected, regardless of workers’ immigration status. The Government also indicates that the labour inspectorate does not capture or report data on instances where it has engaged with the immigration authority regarding visa arrangements for witnesses and complainants. The Committee further notes the observations of Business New Zealand, which indicate that, previously, work visas of migrant workers were tied to employment with a specific employer, and that this has now changed, making it easier for migrant workers to bring a complaint if their work conditions are unsatisfactory. The Committee takes note of this information, which addresses its previous request.

Article 3(1)(b). Educational activities conducted by the labour inspectorate. Following its previous comments on the provision by labour inspectors of technical information and advice to employers and workers, the Committee notes the observations of Business New Zealand, which take the view that greater emphasis should be placed on the labour inspectorate’s guidance function since, though there might be information available, not every employer will know where or how to access it. The Committee notes that, according to the Government, labour inspectors at the Ministry of Business, Innovation and Employment (MBIE) no longer have the function to provide information and education to employers or employees, and this function has been delegated to specialized teams within the MBIE. The Committee recalls that under Article 3(1)(b) of the Convention, supplying technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions is part of the functions of the labour inspection system. Accordingly, the Committee requests the Government to indicate the measures taken or envisaged to ensure that labour inspectors supply technical information and advice to employers and workers concerning the most effective means of complying with legal provisions, in accordance with Article 3(1)(b) of the Convention.

Article 4. Coordination and cooperation among the different structures of labour inspection. Following its previous comments, the Committee notes the statistics provided by the Government on joint investigations in the period 2016-2021, between WorkSafe New Zealand, which is responsible for labour inspection on occupational safety and health (OSH), and the labour inspectorate at the MBIE, responsible for labour inspection on employment matters. The Committee observes that the number of such joint investigations has fallen from 90 in 2016/2017 to 13 in 2019/20 and notes the Government’s indication that labour inspectors forward a report to WorkSafe New Zealand on any OSH-related breaches they come across in the field. The Committee requests the Government to continue to provide information on the actions taken for collaboration and cooperation between WorkSafe New Zealand and the labour inspectorate at the MBIE, including statistics of the joint inspections undertaken and an explanation for the substantial decrease in joint investigations since 2016/17.

Articles 10 and 16. Number of labour inspectors. Inspection visits. Following its previous comment on the recruitment of additional inspectors in employment matters, the Committee welcomes that, according to the Government, there are 202 health and safety inspectors as of June 2020 (an increase from the 177 noted in 2018) and 78 labour inspectors at the MBIE as of April 2021 (an increase from the 60 noted in 2018). The Committee nevertheless notes the NZCTU’s reiterated observations that the labour inspectorate remains significantly under-resourced, which prevents it from fully meeting its mandate, and limits its ability to expand operations to cover more than the most serious breaches of minimum standards. The Committee requests the Government to continue to provide information on any plan to recruit additional inspectors at the MBIE in the future. In addition, the Committee requests the Government to provide statistical information on the number of inspection visits conducted by labour inspectors.

Articles 17 and 18. Effective enforcement of legal provisions. Following its previous comments on this matter, the Committee notes the statistics provided by the Government on the penalties imposed and collected following the implementation of the revised Employment Relations Act, and on the fines awarded under the Health and Safety at Work Act 2015 (HSWA). Regarding the Employment Relations Act, the Committee observes that the amounts of fines collected annually are significantly lower than those imposed (for 2019/20, 106,900 collected, or 11 per cent of the 942,862 imposed in New Zealand dollars, following collection of between 15 per cent and 21 per cent of amounts imposed for the three preceding years). The Committee also notes that, according to Business New Zealand, there is evidence that higher penalties under HSWA have led to more companies pleading financial incapacity at sentencing and that adopting a punitive approach serves merely to cripple businesses, particularly small ones. The Committee observes that, based on statistics from the 2020–21 Annual Report of WorkSafe New Zealand concerning enforcement actions, only a minority of prosecutions have been unsuccessful between 2016 and 2021. The Committee requests the Government to continue to provide statistical information on the numbers of violations detected, and the amounts of fines imposed and collected for them under the Employment Relations Act and the HSWA. The Committee also requests the Government to provide detailed information on any issues encountered by labour inspectors or the courts in collecting the fines imposed.

Articles 20 and 21. Publication and content of the annual report on the work of the labour inspectorate. The Committee takes due note of the 2020–21 Annual Report of WorkSafe New Zealand, which contains information on the subjects listed under Article 21(a), (b), (e), (f) and (g) of the Convention. However, it appears to be missing statistics of workplaces liable to inspection and the number of workers employed therein, and of inspection visits (Article 21(c) and (d)). The Committee also notes the Government’s indication that the Employment Services of the MBIE produce annual statistics called “A Year at a Glance”, including on the labour inspectorate. The Committee duly notes that this document contains statistics on workplaces liable to inspection and the number of workers employed therein (Article 21(c)), statistics of violations and penalties imposed (Article 21(e)), and the total number of interventions completed by the labour inspectorate. The Committee requests the Government to continue to take the necessary measures to ensure that in the future, the annual reports of the authorities responsible for labour inspection are published and communicated to the ILO, containing complete information on all the subjects listed in Article 21(a)–(g).