Observación (CEACR) - Adopción: 1995, Publicación: 83ª reunión CIT (1996)

The Committee notes the Government's detailed report for the period ending June 1995 and the enclosed extensive comments made by the New Zealand Council of Trade Unions (CTU) as well as the Government's reply to these comments. The Committee would be grateful if the Government would provide additional information on the points raised below.

Articles 1, 2 and 3, paragraph 1(a) and (c), of the Convention. The Committee notes the comments of the CTU which indicates that existing legislation that is enforced by the Inspectorate, far from being a comprehensive set of protections is scattered, fragmented, obsolete, poorly drafted and riddled with ambiguities or obscurity and that the effective application of the legislation is undermined. The CTU states that key elements of the legal provisions cited by the Government in its report as enforceable by the labour inspectorate are not enforced in the public sector or not at all. The Committee notes the Government's reply that the issue of the nature of the legislation enforced by the Labour Inspectorate is outside the scope of Convention No. 81, and as its ratification of this Convention extends only to Part I (Industry) it considers the Convention to be not applicable to the public sector.

The Committee acknowledges that New Zealand's ratification of Convention No. 81 excluded Part II on Labour inspection in commerce but that Articles 1 and 2 of the Convention require the maintenance of a system of labour inspection in industrial workplaces. It would therefore be grateful if the Government would indicate whether the Convention is fully applied to existing public sector industrial undertakings, and if not to provide information on the measures taken or envisaged to extend the scope of the system of labour inspection to this sector as provided for by the Convention. The Committee would also be grateful if the Government would provide additional information on whether both the safety and health and the general labour inspectorates still have the function of bringing to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions, and whether they carry out in practice such a function.

Article 3, paragraph 1(b), and Article 5(b). The Committee notes the CTU's comments that the Health and Safety Inspectorate does not produce and widely distribute a coherent and comprehensive body of information on the best means of compliance with the legal provisions. While the CTU acknowledges that there was a degree of informal and somewhat sporadic interaction on health and safety matters, no formal arrangements existed for collaboration between the inspectorates and employers, workers and their organizations. The Government's report indicates that despite the absence of formal arrangements it was government policy to consult the affected parties, workers, employers, or their organizations and that frequent liaison was maintained both at the national and at the local levels with these organizations. In its reply to the CTU 's comments the Government in addition states that the Information Centre currently answers approximately 10,000 to 12,000 telephone inquiries per month, ensuring employees and employers ready access to information about their statutory employment rights and updated and comprehensive information pamphlets are widely made available from various sources.

The Committee would be grateful if the Government would provide further information regarding the balance struck between advisory and supervisory functions of the inspectorates and on the steps taken to promote collaboration with employers and workers or their organizations in respect of priority setting and on the choice of the most effective approaches to these matters.

Article 5(a) and Article 14. The Committee notes that according to the CTU there is a lack of cooperation between the Inspectorate and the Accident Rehabilitation and Compensation Insurance Corporation (ARCIC) in that the ARCIC refuses to share information in its possession resulting in very significant disparity in accident statistics. The CTU considers that employers are clearly under-reporting accidents to the Inspectorate and this lack of cooperation is creating a significant obstacle to the effective enforcement of health and safety legislation.

The Committee hopes the Government will provide full particulars regarding the measures taken or envisaged to promote effective cooperation between the inspection services and other government services and public or private institutions engaged in similar activities. The Committee also hopes the Government will provide full particulars regarding the measures taken to give effect to the requirements of Article 14 of the Convention that the labour inspectorate be notified of industrial accidents and cases of occupational disease.

Articles 10 and 16. The CTU considers that 224 operational staff in the Health and Safety Inspectorate for 207,000 worksites was too small to adequately deliver an appropriate degree of oversight. It also considers that the composition of the operational staff was heavily weighted towards the traditional areas of health and safety enforcement such as in factories, construction and forestry and that there are only 19 operational staff in the general inspectorate for the enforcement of the bulk of the legal provisions on general conditions of work. The CTU is of the view that the Inspectorate has adopted a passive, reactive, complaint-based approach to enforcement instead of an active and vigorous one. It further states that the Inspectorate requires a specific complaint to be made by an identified complainant and does not act on anonymous information. Moreover the CTU considers the most rapid reaction time by the Inspectorate to such complaints was one month and that others had to wait up to seven months. The Government replies that it does not refuse to act on anonymous complaints but that it requires a reasonable amount of information in order to begin an investigation. The Government considers the situation for 1995 has considerably improved in that the average waiting time ranged from being immediate to two months.

The Committee considers that, even with the additional support of the newly set up Information Centre, the number of staff of the general labour inspectorate (19) is too low for the number of worksites involved (207,000) and that the Government's inspection policy should not be limited to responding to complaints only. The Committee requests the Government to take appropriate measures to increase the number of the operative staff sufficiently to ensure that workplaces are inspected as often and as thoroughly as is necessary. The Committee requests the Government to furnish additional information on any improvements made in the reaction time of the Inspectorate to complaints.

Article 12, paragraph 1(a). The Committee notes from the Government's report that section 144(1)(a) of the Employment Contracts Act 1991 and sections 31(1) and 35 of the Health and Safety in Employment Act 1992 provide only for inspectors or departmental medical practitioners who act as inspectors, to enter, at any reasonable hour, any premise or place of work (under section 144(1)(a) other than a dwelling-house where any person is employed or where the inspector has a reasonable cause to believe that a person is employed) at any reasonable hour.

The Committee wishes to point out that paragraph 1(a) of Article 12 of this Convention requires that inspectors should be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. The Committee draws the Government's attention to the importance it attaches to the recognition of the power of inspectors to enter establishments that are liable to inspection at any hour of the day or night. The Committee hopes the Government will provide information on how full effect is given to the requirements of the Convention in this regard.

Article 15(c). The Committee notes the CTU's comments that the confidentiality of the source of any complaint is not respected when an inspector only acts on a specific written complaint made by an identified complainant concerning breaches in respect of identified individuals. In most cases the CTU maintains the complainant and the individual are the same person. Except for the health and safety area, employers become immediately aware that the inspector's visit is in response to a complaint and that the identity of the complainant is almost always immediately apparent. The Government replies that the Inspectorate preserves the confidentiality of the complainant where possible, but that it cannot conduct an entire investigation without identifying the client. It gives the example of the impossibility of recovering holiday pay due to an individual without that individual's name being used.

The Committee draws the Government's attention to existing alternative means of investigations by generalizing the inquiry and examination of the undertakings' records to permit dealing with not only the complaint but also to possibly uncovering similar others cases. The Government is requested to furnish full particulars on any improvements made in this respect.

Article 17, paragraph 1. The Committee notes from the CTU's comments and the Government's reply that Crown agencies were not liable to prompt legal proceedings for violations of legal provisions. As mentioned in the Committee's comments under Articles 1, 2 and 3, paragraph 1(a) and (c), above, contrary to the Government's position the Convention applies to the public sector. The Committee requests the Government to take the necessary measures to give effect to this Article of the Convention.

Article 21. The Committee notes from the CTU's comments and the Government's acknowledgement that there was a lack of compliance with the requirements of this Article. The Committee hopes the Government will in the future communicate annual inspection reports containing all the particulars listed by this Article, in particular statistics of workplaces liable to inspection and the number of workers employed therein (Article 21(c)), statistics of violations and penalties imposed (Article 21(e)), statistics of industrial accidents (Article 21(f)), and statistics of occupational diseases (Article 21(g)).

Article 25, paragraph 2. The Committee notes from the comments of the CTU that in New Zealand there is no law or administrative practice that distinguishes between industrial and commercial undertakings for purposes of labour inspection and that it considers it timely for the Government to consider extending the application of the Convention to commercial undertakings as envisaged by this Article of the Convention. The Committee would be grateful if the Government would provide information in this regard.

The Committee points out that various services are available from the Office on labour inspection matters and in particular the provision of advice and information on relevant comparative experiences and solutions regarding questions raised in this observation.