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

Occupational Safety and Health Convention, 1981 (No. 155) - New Zealand (Ratification: 2007)

The Committee notes with interest the comprehensive and detailed information provided by the Government in its first report, and notes that the Health and Safety in Employment Act 1992 (HSE Act), and its accompanying regulations, the Hazardous Substances and New Organisms Act 1996, and the Employment Relations Act 2000, ensure legislative conformity with a majority of the provisions of the Convention. The Committee also notes the observations by the New Zealand Council of Trade Unions (NZCTU) and Business New Zealand, and the responses provided thereto by the Government.

Article 1, paragraph 3; and Article 2, paragraph 3, of the Convention. Scope and definitions. The Committee notes the information provided by the Government indicating that the New Zealand Defence Forces are excluded from the HSE Act’s provisions relating to accident investigation and inspection of high defence areas; and that occupiers of a home do not have duties to people who perform residential work. The Committee asks the Government to indicate the reasons for such exclusions and the measures taken to give adequate protection to workers in excluded branches and towards a wider application of the Convention.

Article 5 and Article 11. Main spheres of action under the national policy and functions progressive to give effect to the national policy. The Committees notes the NZCTU’s comment indicating that the National Occupational Health and Safety Advisory Committee (NOHSAC), established to provide independent advice directly to the Minister of Labour on major occupational health and safety issues, identified significant gaps in guidance materials intended to encourage compliance with the performance-based framework of the HSE Act; a lack of resources; and a need for more support for the occupational safety and health (OSH) regulatory framework. The Committee notes the Government’s response indicating that increased resource was provided in 2007 for a range of health and safety initiatives including proactive support for businesses through standard setting and specialist support; and that a project has been established to review all standard and guidance material either produced or endorsed by the Government since 1992, with a view to developing a framework to inform the development of future material. The NZCTU further states that NOSHAC was disestablished in June 2009 due to funding cuts, and that its roles have not been taken up by another government agency. The Committee notes the information provided by the Government indicating that the decision to disestablish NOHSAC was made in order to redirect resources to address the issues identified by NOHSAC, and that the Government will continue to have the ability to commission research and academic input to help identify and address emerging workplace health and safety issues on an “as needed” basis. The Committee asks the Government to provide further information on the outcome of measures undertaken to address the issues identified by NOHSAC, and information on the research and academic input undertaken to identify and address emerging workplace health and safety issues.

Articles 7 and 9. Enforcement of laws and regulations. The Committees notes the NZCTU’s statement indicating that while one of the roles of the health and safety inspectorate is to provide training and information for employers and employees, there must also be a strong focus on monitoring and enforcement, which requires continued recruiting and employing of an appropriate number and range of skilled field staff to carry out proactive and reactive site inspections across all industry groups. The Committee notes the Government’s response indicating that the tripartite Workplace Health and Safety Council has raised issues at meetings on monitoring and enforcement issues and will continue to do so, and that while the enforcement role of the inspectorate is primarily aimed at promoting excellent health and safety practices in the workplace, monitoring, investigation, and enforcement of health and safety legislation are key components of the Government’s response to any failures of compliance with the HSE Act, especially where non-compliance is of a serious nature. The Committee further refers to its 2007 comments to the Government on the Labour Inspection Convention, 1947 (No. 81), asking the Government to ensure that the prevention and advising activities performed by labour inspectors, and directed at workers and employers, particularly in the field of occupational safety and health, are supplemented, in all cases where this is necessary in order to obtain compliance with the applicable legal provisions and the measures ordered by the labour inspector, by the imposition of penalties or the institution of legal proceedings. The Committee hopes that the Government takes all appropriate measures to ensure a proper balance between preventive and advisory functions on the one hand, and enforcement functions on the other, of the labour inspectorate as discussed in paragraphs 96–102 of the 2009 General Survey concerning occupational safety and health.

Article 12, subparagraph (c). Responsibilities of those who design, manufacture, import, provide or transfer machinery, equipment and substances for occupational use. The Committee notes the information provided by the Government indicating that the Department of Labour undertakes research to keep abreast of scientific and technical knowledge, and is required to provide policy research and advice to the Government on issues of OSH. The Committee asks the Government to provide further information on measures taken with a view to ensuring that those who design, manufacture, import, provide or transfer machinery, equipment and substances for occupational use undertake studies and research or otherwise keep abreast of the scientific and technical knowledge necessary to comply with subparagraphs (a) and (b) of Article 12.

Article 13. Protection of workers from undue consequences. The Committee notes that the NZCTU is aware that workers in some industries are discouraged by their employers from reporting accidents and incidents relating to occupational harm, and that there are instances where workers are pressured to continue working even where safety guards and other protections are missing. The NZCTU states that while the Government prosecutes severe incidents where accidents have occurred resulting in loss of life or severe impairment, it seldom takes proactive steps to inspect for safety breaches, and that the NZCTU has made submissions regarding the need to lower the threshold of serious harm in health and safety legislation. The Committee notes the Government’s response indicating that the inspectorate’s approach toward small and medium enterprises is focused on increased provision of information and sector engagement, together with stronger enforcement actions, where required, enabling more effective compliance overall; and that revision of the definition of serious harm is under active consideration by the Government. The Committee asks the Government to provide further information on measures taken to address the abovementioned issues identified by the NZCTU, and on changes to the definition of serious harm.

Article 14. Measures to promote the inclusion of occupational safety and health at all levels of education and training. The Committees notes the NZCTU’s statement that the 2009 government budget reduced funding for a number of areas of tertiary education, including regulatory compliance and health and safety qualifications, and that there have also been substantial cuts in training of workplace health and safety representatives. The Committee notes the Government’s indication that conformity with this Convention is not affected, as the rights and obligations of employers and workers remain unaffected by these shifts, and that the Government will look at future options for the resourcing of health and safety representative training. The Committee asks the Government to provide further information on the effect reduced funding has had on the promotion of OSH at all levels of education and training, and to indicate measures taken to continue to give effect to Article 14.

Article 17. Two or more undertakings engaged in activities simultaneously at one workplace. The Committee notes the information provided by the Government indicating that, being a performance-based piece of legislation, the HSE Act addresses coordination and collaboration on health and safety in workplaces with two or more undertakings through a combination of duties on various parties, as well as the express requirement for employers to take all practicable steps to ensure the safety of employees at work. The Committee also notes with interest the information indicating that the Government is in the process of amending legislation to create a specific duty to collaborate where business undertakings share a workplace at the same time. The Committee asks the Government to provide a copy of the amended legislation once it has been adopted.

Article 19. Arrangements at the level of the undertaking. The Committee notes the NZCTU’s statement that there is no specific provision for health and safety representatives to have adequate work time or resources to carry out their duties under the HSE Act, and that in practice many representatives carry out their health and safety duties in addition to their regular work duties and in their own time. The Committee notes the Government’s response indicating that paid leave for adequate health and safety training is provided for under section 19E of the HSE Act, and that implicit in the employer’s duty is that health and safety representatives should be provided with reasonable opportunities to carry out their health and safety responsibilities. The Committee asks the Government to indicate measures taken to address the issues identified above by the NZCTU, and to provide further information on the application in practice of section 19E of the HSE Act.

Article 20. Cooperation between management and workers. The Committee notes Business New Zealand’s concern that the HSE Act’s requirement to have a health and safety representative, or committee, constitutes a disincentive for workers in general to involve themselves in health and safety matters. The Committee notes the Government’s response indicating that Part 2A of the HSE Act creates a duty for employers to provide reasonable opportunities for workers to participate effectively in ongoing processes for the improvement of health and safety in their place of work. The Committee asks the Government to provide further information on the application of this Article in practice, with reference to Business New Zealand’s concerns regarding the cooperation between management and workers.

Article 21. Expenditure for workers. The Committee notes the information provided by the Government indicating that under section 10(2)(b) of the HSE Act, employers are required to take all practical steps to provide, make accessible to, and ensure the use by the workers, of suitable clothing and equipment to protect them from any harm that may be caused by, or may arise out of, the hazard. The Committees also notes that the NZCTU is aware that many contracted workers are not provided with protective clothing or equipment, and if they supply such items, they are expected to pay for them. The Committee notes the Government’s response indicating that the duty under section 10(2)(b) does not apply to a principal in relation to contracted workers, and that while a principal is still responsible for the safety of contracted workers, this does not include the provision of such clothing and equipment. The Committee asks the Government to provide further information on the cost-free nature of all occupational safety and health measures, not just protective clothing and equipment; and to provide further information on the application of this Article in practice, with particular reference to contracted workers.

Part III and Part V of the report form. Decisions of courts of law; and application in practice. The Committee notes that the Government has not provided information on these Parts of the report form. The Committee asks the Government to include information on whether courts of law, or other tribunals, have given decisions involving questions of principle relating to the application of the Convention; to give a general appreciation of the manner in which the Convention is applied in the country; and to attach extracts from inspection reports and, where such exists, information on the number of workers covered by the legislation; the number and nature of the contraventions reported; and the number, nature and cause of accidents reported.