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

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

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 14 (weekly rest) and 47 (40-hour week) together.

The Committee notes the observations of Business New Zealand and the New Zealand Council of Trade Unions (NZCTU) on the application of Conventions Nos 14 and 47, communicated with the Government’s report.

A.Hours of work

Article 1 of Convention No. 47. Forty-hour week. The Committee notes that section 11B(2) of the Minimum Wage Act 1983, as amended up to 2021, prescribes that the maximum number of hours (excluding overtime) to be worked by any worker in any week may be fixed at a number greater than 40 if the parties to the individual agreement agree. The Committee observes that no weekly or daily limits to the working hours seem to be provided for in the above-mentioned Act for the cases contemplated in section 11B(2). Moreover, the Committee notes that, according to the statistics included in the report of the Government, on average: (i) for the year starting in March 2020, 11.70 per cent of people employed worked between 41 and 49 hours per week, 9.9 per cent worked between 50 and 59 hours per week and 6.20 worked more than 60 hours a week; and (ii) for the year starting in March 2021, 11.5 per cent of employed people worked between 41 and 49 hours a week, and 15.1 per cent worked between 50 and 59 hours a week, with no data on workers working more than 60 hours a week. The Committee further notes the observations of the NZCTU, reiterating its concerns that the national legislation does not provide for effective protection of the 40-hour week principle as enshrined in the Convention, and indicating that this situation is exacerbated by the relative weakness of New Zealand’s institutions and mechanisms for collective bargaining. The Committee recalls that provisions such as section 11B(2) of the Minimum Wage Act 1983 authorize practices that may lead to unreasonably long hours of work, in direct contradiction to the principle of progressive reduction of hours of work. Therefore the Committee requests the Government to take the necessary measures as may be judged appropriate, such as the fixing of reasonable limits to the extension by individual agreement of the 40-hour week, to secure the full application, in both law and practice, of the principle of a 40-hour week provided for by the Convention. The Committee also requests the Government to provide information on the progress made in this respect.

B.Weekly rest

Article 2 of Convention No. 14. Right to 24-hour weekly rest. Following its previous comments on the absence of national legislative provisions expressly setting out a weekly rest of 24 hours, the Committee notes the Government’s indication in its report that no legislative measures affecting the application of the Convention have been taken since then. In this respect, the Committee notes the observations of the NZCTU urging the Government to initiate a consultation process with social partners on how to bring laws and regulations into compliance with the Convention. Accordingly, the Committee requests the Government to take the necessary measures without delay to ensure that, in practice as well as in law, all workers employed in any industrial undertaking, public or private, or in any branch thereof, effectively enjoy an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days, as required under the Convention.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 1 of the Convention. Forty-hour week. The Committee notes that, in its observations on the application of the Convention, the New Zealand Council of Trade Unions (NZCTU) mentions that the legislation cited in the Government’s report (for example, Minimum Wage Act 1983, Employment Relations Act 2000, Health and Safety Act 1992, Health and Safety in Employment Amendment Act 2002 and Health and Safety in Employment Regulations 1995) does not provide adequate support for the principle of a forty-hour work week. According to the NZCTU, nearly one third of New Zealand employees works more than 40 hours per week in their main job. The NZCTU also mentions that while this rate has decreased slightly since 2008, 2013 has shown a slight increase (from 29.3 per cent in 2012 to 29.6 per cent in 2013). In particular, the NZCTU expresses its concern by the number of New Zealand employees working more than 50 hours a week, which is 13 per cent of the employees, according to the OECD Better Life Index. The Committee notes the Government’s reply to these observations to the effect that WorkSafe New Zealand has been set up to better align the New Zealand workplace health and safety legislative framework with best practices. It further notes the new approved code of practice, which supports the Ministry of Business, Innovation and Employment’s forestry harm reduction campaign, which aims at addressing, among others, preventing harm arising from excessive hours of work or insufficient rest periods. It also notes that the Government’s commitment to implement the recommendations of the Royal Commission on the Pike River Coal Mine Tragedy and that public consultations have begun concerning, among others, a specific requirement to consider shift work and fatigue issues at mines. While noting this information, the Committee wishes to recall that Paragraph 12 of the Reduction of Hours of Work Recommendation, 1962 (No. 116), indicates that the variable distribution of working hours over a period longer than one week should be permitted only “when special conditions in certain branches of activity or technical needs justify it”. Moreover, 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. In this respect, it recalls, that the New Zealand legislation does not contain provisions on an absolute limit on the daily or weekly hours of work or the methods to calculate the average working time permitted. The Committee requests the Government to transmit any further observations it may wish to make in reply to the observations of the NZCTU and would also be grateful if the Government could indicate whether it is considering taking measures to determine the method for averaging the hours of work and the period over which this method is applied.

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

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.

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

Article 1 of the Convention. Forty-hour week. The Committee notes that, in its observations on the application of the Convention, Business New Zealand (BNZ) confirmed the information contained in the Government’s report with regard to respect for the principle of the 40-hour week, as well as the validity of the statistical methods used. The organization concerned also noted, based on the statistics provided by the Government, that the number of employees working long hours has fallen substantially since 2001.

The Committee also notes the observations made by the New Zealand Council of Trade Unions (NZCTU), in which it repeats its comments made in 2003 concerning the discrepancy between the principle of the 40-hour week established in New Zealand and the reality that a significant proportion of employees regularly work more than 40 hours per week. The NZCTU recalls that section 11B of the Minimum Wage Act 1983, which provides that the hours of work shall not normally exceed 40 hours per week, excluding overtime, also provides that the parties may agree to set the working week at more than 40 hours. It emphasizes that this provision does not prevent employers from setting a working week of more than 40 hours as a condition of accepting a job. The NZCTU also mentions the issue of workload which causes employees to work unpaid overtime and the issue of low wages which oblige them to maintain two jobs at the same time. Furthermore, the NZCTU mentions a study carried out by the Victoria University of Wellington, according to which 33 per cent of collective agreements in the mining sector provide for a working week of more than 40 hours, while no hours of work are set in 64 per cent of collective agreements in the agricultural sector, in 64 per cent of agreements in the education sector, and in 75 per cent of agreements in the food retail sector. According to the NZCTU, since 2000, around 40 per cent of employees have been working Monday to Sunday, in particular those employed in agriculture, retail and hospitality, as well as some service sector employees. With regard to the public sector, the NZCTU refers to the Career Progression and Development Survey carried out in 2005 by the State Services Commission, according to which 68 per cent of public servants surveyed indicated that their actual hours of work were higher than the number of hours provided for in their employment contract, although this rate has dropped since 2000, when it stood at 76 per cent. The NZCTU welcomes a number of positive developments, in particular its collaboration with the Government on several initiatives, such as the “work–life balance” project and the adoption of the Act on flexible working arrangements with a view to easing the financial pressure pushing some employees to work long hours and sometimes maintain two jobs to meet their essential needs. However, the NZCTU maintains that there is still considerable work to be done before the principle of the 40-hour week becomes a reality for all workers. The Committee requests the Government to provide its comments in reply to the observations of the NZCTU.

The Committee is raising other points in a request addressed directly to the Government.

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

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.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and the information provided in reply to its previous direct request. It also notes the observations made by the New Zealand Council of Trade Unions (NZCTU) and the New Zealand Employers' Federation (NZEF).

The NZCTU indicates that in practice effect is not given to the principle of the 40-hour week set out in the Minimum Wage Act of 1983, as amended in 1991, since this Act itself provides that the parties to an employment contract, whether individual or collective, may freely agree on working hours which are greater than 40. In these conditions, the Government is not meeting its obligation under the Convention to promote the general principle of the 40-hour week. In the absence of any protective mechanism, the working hours negotiated have a clear tendency to exceed the limit of 40 hours.

In its reply, the Government states that the allegations of the NZCTU are based on statistics which take into account the hours worked by self-employed persons and persons in managerial positions, who cannot be included in the categories of employment covered by the Convention. Furthermore, the provisions on working hours contained in the above Minimum Wage Act are of a flexible nature in order to permit the creation of part-time jobs in cases where full-time employment could manifestly not be created. Legislation which was too restrictive would result in the creation of a large number of part-time jobs, which would not be compensated by the considerably lesser number of full-time positions created as a consequence.

The Committee wishes to remind the Government that, under the terms of Article 1 of the Convention, a State which ratifies the Convention not only declares itself to be in favour of the principle of the 40-hour week, but also undertakes to take or facilitate such measures as may be judged appropriate to apply this principle to various classes of employment. The Committee therefore requests the Government to indicate the measures which have been adopted or are envisaged to ensure the application of the principle set out in the Convention and to supply general information on the manner in which it is applied, by providing where possible the information required under Point V of the report form.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

1. The Committee notes the information supplied by the Government in its report and the comments made in 1991 and 1992 by the New Zealand Council of Trade Unions (NZCTU). It notes, from the Government's report, that the Employment Contracts Act, 1991, repealed the Labour Relations Act of 1987, which applied the principle of the 40-hour week in collective agreements or awards. The principle of the 40-hour week is still contained in the Minimum Wage Act of 1983, as amended in 1991. It now applies to all workers (with the exception of seafarers), whether their employment contracts are individual or collective. Exceptions can be made with the agreement of the parties. The Government supplies data indicating that the principle of the 40-hour week has remained the standard in most of the contracts examined. It also refers to trends in working time arrangements and changes in the criteria used to define overtime hours and their remuneration rates.

2. For its part, the NZCTU notes that the new Employment Contracts Act has eliminated the mechanisms for protecting the 40-hour week and that as a consequence working hours can be negotiated on an individual basis by workers and employers. According to the NZCTU, the facts show a net tendency for the 40-hour week to be exceeded (for example, in 1992, 30 contracts had ordinary hours of work of 50 or more, in comparison with none under the previous legislation). These trends are moving away from achieving the objectives of the Convention. Furthermore, the NZCTU considers that the situation created by the new legislation is not consistent with the obligation placed upon the Government, in accordance with the Convention, to promote the general principle of the 40-hour week.

3. The Committee requests the Government to supply information indicating the extent to which contracts negotiated under the new legislation authorize the extension of the working week beyond the 40-hour week either permanently, or through overtime hours, and to provide information on the wage rates for overtime hours. It would be grateful if the Government would indicate the measures which have been adopted or are envisaged to continue to give effect to the principle set out in the Convention in the event that it is found that the trends in normal working hours are those outlined in the allegations made by the NZCTU.