Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

Forty-Hour Week Convention, 1935 (No. 47) - New Zealand (Ratification: 1938)

In reply to the Committee’s previous comments, the Government indicates that it is committed to assisting workers to achieve balance between their work and their life and is therefore currently considering a specific work programme on this topic. The Government further points out that the good faith provisions of the Employment Relations Act require the negotiating parties to communicate with each other openly and honestly and to consider each other’s view, including in the field of weekly rest. Furthermore, the Government refers to the Health and Safety in Employment Act, inasmuch as it requires employers to prevent harm occurring to employees while at work, including harm arising from excessive working hours or insufficient rest periods.

The observations of Business New Zealand, communicated with the Government’s report, support the view taken by the Government that the changes of the employment relations framework to promote the role of collective bargaining and unions are likely to assist the entrenchment of the principle of a 40-hour week.

Referring to the 40-hour week principle, provided for, with the possibility of making exceptions, under section 11 B of the Minimum Wage Act, the New Zealand Council of Trade Unions (NZTU), however, indicates that it is aware of widespread abuse of this principle in practice. Thus, according to the 2001 census, 34 per cent of the workers surveyed were working over 40 hours, 21 per cent more than 50 hours and 9 per cent over 60 hours per week. NZTU further indicates that a trend towards a steady increase in hours worked is apparent. According to NZTU, the problem similarly exists in the public service, for managerial as well as for support staff. In reply to these observations, the Government announces the appointment of a steering group to develop, within the frame of the designated work-life balance programme, policy options aiming at a better access of workers to work-life balance.

The statistical data supplied by the Government, too, show that appeals to the good will of the contracting parties are not sufficient to secure the 40-hour principle. According to these figures, 34 per cent of collective agreements covering 37 per cent of employees have a weekly span of Monday to Sunday. The same number of employees are working an average of more than 40 hours per week. Even though the statistics provided appear not to give a coherent overview on the categories and numbers of workers concerned (an independent research indicates that 77 per cent of collective employment agreements provide for ordinary working time of 40 or less hours per week; and, according to data collected by the Labour Department, out of 2,161 agreements analysed covering 226,021 employees, 84 per cent of these agreements covering 83 per cent of employees provide for the 40-hour week as a standard), the Committee draws the Government’s attention to the fact that averaging implies the possibility of working in excess of 40 hours in the week. In order to ensure compliance with the letter and spirit of the Convention, which aim at safeguarding the health and well-being of workers and protecting them against abuses, provision should be made to set at least reasonable time limits to averaging, for example by restricting it to a certain period within one given month. Where hours of work are calculated as an average, it is evident that the longer the reference period, the greater the risk of abuses.  Moreover, hours worked on a regular basis in excess of the 40-hour week should only be permitted for certain categories of workers or types of work. In principle, such work should be determined and paid as overtime. With reference to Paragraph 12 of Recommendation No. 116 concerning reduction of hours of work and its 1967 General Survey, the Committee recalls that the calculation of normal hours of work as an average over a period longer than a week should be exceptional and limited to certain sectors in which technical needs justify it (paragraph 142).

The Committee requests the Government to continue to indicate in its next report any measures it has taken or contemplated in line with the aforementioned comments to ensure full application of the principle of a 40-hour week embodied in the Convention. Please also indicate to what class of employment this principle is applied and the extent to which hours may be worked in excess of the 40-hour week either on a regular basis, or as overtime and, in this latter case, with particulars of the rate of pay for overtime.