Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

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

Article 1 of the Convention. Forty-hour week. The Committee notes the “Work–life Balance” project launched in November 2004 by the Government, which is concerned in particular with hours of work. In the context of this project, it notes the adoption of the Employment Relations (flexible working arrangements) Amendment Act, 2007, which allows employees who provide care for a person and who have at least six months’ service to ask their employer for a variation of their hours or place of work. The Committee also notes the statistics provided by the Government that, as of 31 March 2008, 85.3 per cent of the 740 collective agreements applicable to 20 workers or more, which cover a total of 79 per cent of workers, provide for a working week of 40 hours. It also notes that, according to a survey carried out by Statistics New Zealand, the average working week remained relatively stable between 2003 and 2007 at between 38 and 39 hours. Furthermore, it notes that, according to the information provided by the Government, in 2007, 66.3 per cent of employees worked an average of 40 hours per week or less.

The Committee notes that section 11B of the Minimum Wage Act of 1983 allows the parties to an employment contract to set the working week at more than 40 hours, and that this Act does not establish an absolute limit on these hours. According to the statistics provided by the Government, 66.3 per cent of employees worked an average of 40 hours or less per week, which means that one third of employees worked more than 40 hours on average. In any case, the reference to an average working week does not give an indication of the maximum hours worked during a given reference period. Furthermore, the Committee notes that, according to the information contained in the ILO’s Key Indicators of the Labour Market (KILM) database, in 2007, nearly 20 per cent of employees were working more than 50 hours per week. It is bound to note that the legislation does not establish an absolute limit on the daily or weekly hours of work and does not contain provisions on the conditions in which the averaging of working time is permitted. In this regard, the Committee draws the Government’s attention to the negative effects that an excessive working day or working week can have on the health of workers and on the balance between their private life and work. Referring to its previous observation, it wishes to recall the provisions of the Reduction of Hours of Work Recommendation, 1962 (No. 116), which is designed to supplement and facilitate the application of the Convention. According to Paragraph 12 of this Recommendation, the calculation of normal hours of work as an average over a period longer than one week should be permitted “when special conditions in certain branches of activity or technical needs justify it”. Furthermore, paragraph 12(2) indicates that the competent national authorities should fix the maximum length of the period over which the hours of work may be averaged. The Committee requests the Government to provide information on the impact that the “Work–life Balance” project and, in particular, the implementation of flexible working arrangements have had on hours of work especially as regards the implementation of the principle of the maximum 40-hour week. The Government is also requested to provide information on the other measures taken to reduce the number of employees working more than 40 hours, or even in some cases more than 50 hours per week. Finally, the Government is requested to provide any information available concerning the use of systems involving the averaging of hours of work (reference period used, limits on the number of hours of work per day and per week, the role of representative organizations of workers, etc.).

Overtime. The Committee understands that the circumstances in which overtime may be worked by an employee, as well as the number of hours and the remuneration applicable, are set out in the individual employment contract and are not covered by legal provisions. In this regard, it refers to Paragraph 14 of Recommendation No. 116, which provides that the national competent authority or body should determine the circumstances and limits in which exceptions to the normal hours of work may be permitted permanently, temporarily or periodically. The Committee also refers to paragraph 79 of its General Survey of 1984 on working time, in which it emphasized that “undue facilitation of overtime, for example, by not limiting the circumstances in which it may be permitted or by allowing relatively high maximums, could in the most egregious cases tend to defeat the Recommendation’s objective of a social standard of a 40-hour week and make irrelevant the provisions as to normal working hours”. With regard to remuneration, Paragraph 19 of Recommendation No. 116 indicates that overtime work should be remunerated at a higher rate than normal hours of work, to be determined by the competent national authorities, and should not be less than 1.25 times the regular rate. The Committee requests the Government to provide any statistics available concerning the performance of overtime. It would also be grateful if the Government would indicate whether it is considering taking measures to regulate the cases in which the performance of overtime is permitted (for example, in case of abnormal pressure of work, force majeure, etc.), limit the maximum number of hours of overtime and determine a rate of pay for overtime.

Records. The Committee notes the Government’s indication that employers are obliged to keep a record of the number of hours worked by their employees for the necessity of calculating their remuneration. It draws the Government’s attention to the importance of keeping a record of hours of work and making it available to labour inspectors to ensure the proper implementation of the relevant legislation, in accordance with Paragraph 21(c) of Recommendation No. 116. The Committee would be grateful if the Government would keep the Office informed of the measures that it could take in order to make it compulsory in all circumstances to keep such records.

Part V of the report form. Application in practice. The Committee requests the Government to provide information in its next report on the application of the Convention in practice, including, for example, extracts from reports of the labour inspection services containing statistics on the number and nature of violations reported with regard to the legal provisions relating to hours of work and information on the follow-up action taken. The Government is also requested to provide copies of recent official reports or studies on issues relating to working time, especially the reduction of hours of work linked to new technologies or as an employment policy tool, in particular in the context of the current global economic crisis.