Protection against Accidents (Dockers) Convention (Revised), 1932 (No. 32) - New Zealand (Ratification: 1938)

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

The Committee notes the observations of the Business New Zealand (BusinessNZ) and the New Zealand Council of Trade Unions (NZCTU) relating to the application of the Convention in practice, received with the Government’s report, and the Government’s reply thereto.

Article 12 of the Convention. Precautions deemed necessary to ensure the proper protection of workers. The Committee had previously noted observations from the NZCTU concerning the use of methyl bromide in timber fumigation operations at some ports, and in particular its association with an increased risk of motor neuron disease (MND) and had requested the Government to provide further information on how national laws or regulations ensure the proper protection of workers in relation to the observations from the NZCTU. In its latest observations, while acknowledging the significant steps taken by the Government on the use of methyl bromide, the NZCTU regretted the significant delay in taking the decision to implement the measures, as well as the time that will elapse before they are fully implemented. The Committee notes the Government’s indication that: (i) methyl bromide is used as a fumigant to treat goods, including timber, before export to key trade partner countries which require its use as part of quarantine. It is also a risk protection requirement of the Ministry for Primary Industries for many imported goods; (ii) the Hazardous Substances Regulations adopted in 2017 under the Health and Safety at Work Act, 2015, includes specific provisions on the use of methyl bromide, including explicit restrictions on fumigation, annual monitoring reports and prohibitions on its use in excess of a tolerable exposure limit (Part 14, subpart 6); (iii) under the Health and Safety at Work Act, companies that fail to ensure the proper protection of their workers are severely fined, such as a company fined 250,000 New Zealand dollars in December 2021 by the Auckland District Court for exposing workers to toxic fumigants, including methyl bromide; (iv) the New Zealand Environmental Protection Authority (EPA) conducted a modified reassessment of methyl bromide that focused on recapture requirements which led to the adoption of new rules, in particular the ban of methyl bromide in ship holds from 1 January 2023 and stepped increases to be applied to the recapture of methyl bromide from containers and covered log stacks (80 per cent of the methyl bromide from the fumigation of each container is required to be recaptured from January 2023, increasing to 99 per cent recapture in January 2031); and (v) the EPA approved in April 2022 the application of ethanedinitrile (EDN) to fumigate logs and timber for export, as an alternative to methyl bromide. However, the fumigant cannot be imported or used immediately, as additional worksafe rules still require ministerial approval and gazetting. The Committee requests the Government to continue providing information on measures taken to ensure the proper protection of workers, and in this case, to mitigate risks linked to exposure to hazardous substances in the workplace. The Government is invited to inform on the progress made to ban the use of methyl bromide in ship holds and to recapture it from containers and covered log stacks, as well as on developments relating to the approval of the substance of ethanedinitrile to fumigate export logs and timber, as an alternative to methyl bromide.

Article 17 and Part V of the report form. Application in practice and an efficient system of inspection. The Committee takes note of the detailed information provided by the Government in relation to measures taken in recent years to ensure the enforcement of regulations prescribed for the protection of workers engaged in dock work. The Committee notes in particular that the Port and Harbour Marine Safety Code, a voluntary national standard that supports national and local laws on issues including labour inspection in ports, was revised in 2016. This Code aims at supporting continuous improvement of safety systems in a collaborative approach and is supported by a tripartite Memorandum of Understanding and accompanied by a governance structure and dedicated Secretariat. The Committee further notes the detailed information on the investigation functions of Maritime New Zealand, WorkSafe and the labour inspectorate, respectively, in ports, as well as examples of prosecutions by Maritime New Zealand and WorkSafe against companies that failed to take safety precautions for the protection of workers, including stevedoring related accidents. Finally, the Committee notes the information on the website of the Transport Accident Investigation Commission (TAIC) that in April 2022 the Ministry of Transport directed the Commission to inquire into the circumstances and causes of fatal accidents which occurred in two ports, and to provide an independent safety-focused investigation to determine any potential system-wide lessons. The Committee requests the Government to continue providing updated information on the enforcement by Maritime New Zealand and SafeWork of the legislation and standards for the protection of workers engaged in dock work against accidents, as well as to provide any available statistics on the number of workers covered by the legislation, the number of contraventions reported and the number, nature and causes of accidents reported.It also invites the Government to provide information on the outcome of the investigation of the TAIC as well as on other safety assessments of port initiatives and to indicate any follow-up measures taken as a result to improve the protection of dockers against accidents, and to ensure an efficient system of inspection.

Prospects for the ratification of the most up-to-date Convention.Recalling the Government’s statements in previous reports that the Code of Practice for Health and Safety in Port Operations and Maritime Rules Part 49 are based on the prescriptions of the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152), the Committee encourages the Government to consider the decision adopted by the Governing Body at its 328th Session (October–November 2016) approving the recommendations of the Standards Review Mechanism Tripartite Working Group, and to consider the possibility of ratifying Convention No. 152, which is the most up-to-date instrument in this area. The Committee requests the Government to provide information on any measures taken in this regard.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the information provided in the Government’s report, including the attached comments by Business New Zealand and the New Zealand Council of Trade Unions (NZCTU) on the application of the Convention in law and in practice. In particular, the Committee notes the response by the Government, which indicates that the Health and Safety in Employment (HSE) Act 1992 requires employers to take all practicable steps to ensure the safety of workers while at work, and that compliance with the HSE Act is consistent with the intent of this Convention. The Committee notes that, in line with Article 1 of the Convention, the HSE Act covers all people working ashore, as well as those working on board ships. The Committee notes however, that the specific provisions of the Convention are reflected in the national Code of Practice for Health and Safety in Port Operations (Revised May 2004), which the Government has indicated is a statement of preferred work practice and provides only a recommended means of compliance with the requirements of the HSE Act. The Committee asks the Government to indicate the measures taken to ensure that the requirements of the Convention are enforced in practice, and penalties imposed for any breaches.

In addition, the Committee notes the comments by the NZCTU concerning health risks associated with the work of crane and forklift operators (CFOs), and in particular concerning the occurrence of musculo-skeletal discomfort (MSD). The Committee notes that this information falls outside the scope of this Convention, but may be relevant in relation to the Occupational Safety and Health Convention, 1981 (No. 155). The Committee will examine these elements of the NZCTU communication, and any reply the Government wishes to make in this regard, along with the Government’s next report concerning Convention No. 155.

Article 10 of the Convention. Sufficiently competent and reliable persons shall be employed. The Committee notes the comments by the NZCTU in relation to the recent move by New Zealand’s port industry to “casualise” the workforce through the use of contractors. The NZCTU alleges that this move has resulted in a decline in training, or the provision of condensed training, and an increase in accidents, some fatal, mainly due to human error. The NZCTU further points to research and informal reports which suggest that there are higher accident and death rates at ports having contracted out stevedoring work. According to the NZCTU, there were three work related fatalities at the Port of Tauranga in 2010 and 2011. Worker error was a factor in all three fatalities and concerned two contractors and a seafarer. The Committee asks the Government to provide information on the measures taken to ensure that only sufficiently competent and reliable persons shall be employed, as required by Article 10 of the Convention, and in particular to respond to the comments by the NZCTU.

Article 12. Precautions deemed necessary to ensure the proper protection of workers. The Committee notes the comments by the NZCTU concerning the use of methyl bromide in timber defumigation operations at some ports, and in particular its association with an increased risk of motor neuron disease (MND). The NZCTU alleges that five former workers from the Port of Nelson are known to have died from MND. The Committee asks the Government to provide further information on how national laws or regulations ensure the proper protection of workers, with respect to the abovementioned comments by the NZCTU.

Article 17 and Part V of the report form. Application in practice and an efficient system of inspection. The Committee notes the information provided by the Government concerning a 2007 project by Maritime New Zealand to reduce short and long term injuries in the stevedore workforce, when working on board ships. The Government also indicates that due to a continuing concern about the number of significant failures of lifting appliances during cargo operations on ships while they are in New Zealand ports, Maritime New Zealand conducted a Focused Inspection Campaign (FIC) in this area in 2006 as part of their routine Port State Control inspections. The FIC highlighted that there were a relatively high number of non-compliances, especially with inspection and maintenance procedures, and that these findings were submitted to the International Maritime Organization (IMO). The Committee welcomes the information that a further submission to the IMO, by the Government, with co-sponsorship from the Governments of Chile, Japan, Norway and the Republic of Korea, has been made and proposes the inclusion of a new output aimed at developing requirements for the construction and installation of on board lifting appliances, and thereby mirroring the requirements under this Convention and the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152) within the Safety of Life at Sea Convention (SOLAS). The Committee asks the Government to continue to provide information on the application of the Convention in practice, and in particular on any progress in relation to the work being undertaken by the IMO’s subcommittee on ship design and equipment, currently scheduled for March 2013.

Inspection visits and investigations in ports. The Committee notes that the NZCTU has again raised concerns regarding the lack of common practice concerning random inspections. The NZCTU also alleges that there has not been any marked increase in independent investigations of accidents by Maritime New Zealand or the Department of Labour, other than those initiated following a fatality or severe injury. The Committee further notes the comments by the NZCTU concerning the lack of mandatory requirements to inspect mooring ropes as part of the Port State Control inspections, following the death of a port worker as a result of a snapped mooring rope, and that in at least five other serious accidents between 1999 and 2009, poor mooring rope inspection, maintenance or operation led to serious injury or death. The Committee asks the Government to provide further information in regard to the comments raised by the NZCTU concerning labour inspection in ports.

Inspection service resources. The Committee welcomes the information provided by the Government that in May 2012, an additional NZ$37 million of funding for workplace health and safety was announced for the next four years, and that amongst other things, this funding will be used to increase the number of front-line health and safety inspectors by 20 per cent. The Committee asks the Government to provide more detailed information on labour inspections in ports, including extracts from inspectors’ reports, and, if such statistics are available, information regarding the number of workers covered by the Convention, the number and nature of contraventions, and the number, nature and causes of accidents reported.

Consultation and action on safety and health issues. The Committee notes Part 2A of the HSE Act, attached to the Government’s report, which provides for employee participation in processes relating to health and safety in the place of work. The NZCTU has expressed concern about the reluctance by port management to consult with workers on changes to port operations and facilities that have health and safety implications. The NZCTU notes that the Government has followed up individual complaints concerning inadequate safety compliance at ports, but that more general preventive action is warranted. The Committee asks the Government to indicate any measures taken to ensure that Part 2A of the HSE Act is applied in ports, and whether any general preventive action on safety compliance at ports is being considered.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. The Committee notes the detailed report supplied by the Government. It also notes the information concerning the repeal in 2003 of the Harbours Act and of the General Harbour Regulations and the publication in 2004 of the new code of practice for health and safety in port operations, replacing the Port Safety Guidelines of 1997. The Committee notes with interest the Government’s information that this new code of practice is based on the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152). It also notes that, in its report concerning the application of the Convention, the Government refers almost exclusively to the new 2004 code of practice. The Committee requests the Government to clarify the legal status of the new code of practice for health and safety in port operations of 2004, and to indicate the legislation in force giving effect to the provisions of the Convention.

2. Article 1 of the Convention. Scope of application. The Committee notes that following the legislative developments indicated above, the main legislation applying the Convention appears to be the Health and Safety in Employment Act, 1992 and, as regards ships’ lifting appliances, Maritime Rule No. 49 made under the Maritime Transport Act, 1994. It further notes that the scope of application of the Health and Safety in Employment Act, 1992, is restricted to persons working on board a ship on condition that: (a) the worker has a New Zealand employment agreement; or (b) the ship is: (i) registered in New Zealand; or (ii) a foreign ship on demise charter to a New Zealand operator. With reference to the definitions of “processes” and “worker” in Article 1 of the Convention, the Committee requests the Government to clarify how full effect is given to the Convention in law and practice.

3. Article 17 and Part V of the report form. Application in practice. The Committee notes the Government’s reply to the observations of the New Zealand Council of Trade Unions (NZCTU) of 2001 concerning: (i) delays in obtaining assistance at weekends and at night; (ii) unclear jurisdictions in the field of safety and health in dock work; and (iii) available data for establishing the location of accidents and assessing the incidence and severity of incidents. The Committee also notes that, in its latest report, the Government refers to new observations made by the NZCTU and replies to them. With regard to these observations, the Committee notes that although the NZCTU supports the Government’s efforts to improve the application of the Convention, it considers that the Convention is not fully applied in practice with regard to the following points:

(i)    Inspection visits and investigations in ports. The Committee notes the statement by the NZCTU that the competent authority (Maritime New Zealand – MNZ) did not conduct an official investigation further to a serious port accident in 2006. In order to prevent future accidents, the maritime sector trade unions requested the setting up of random inspections since the NZCTU considers that regular inspections are anticipated and irregularities cannot be detected. The Committee notes that the Government states that the competent authority does not conduct an investigation for every incident reported. Moreover, the Committee notes that the NZCTU asks the MNZ to provide increased surveillance with regard to lifting appliances, particularly after defects in equipment have been observed, especially on vessels flying a foreign flag, random inspections having to be made preventively and not following accidents which necessitate repairs to equipment. The Committee notes the Government’s indication that maritime safety inspectors do not have a duty to undertake random inspections but to inspect vessels before the unloading of cargo. The Government adds that cranes are tested every five years in addition to an annual visual inspection and they must be covered by a certificate of conformity. The Committee requests the Government to continue supplying information concerning the practical application of the Convention and, in particular, to indicate the manner in which it is ensured that health and safety provisions are observed in order to prevent accidents.

(ii)    Inspection service resources. The Committee notes the statement by the NZCTU that the lack of inspection staff and resources and also restructuring make it impossible to establish a comprehensive and effective prevention system. The Committee also notes that the Government states that the budget of the Department of Labour, Health and Safety Services was increased in July 2007, thus enabling the identification of requirements, increase of staff, provision of advice and information, and reinforcement of the services responsible for application of the Convention. The Government adds that the creation of the “Workplace Group” is a restructuring measure designed to make the best use of resources, and new procedures for responding to any incident have now been in operation for five years. Finally, the Committee notes that the Department of Labour has established a new approach, including a policy to ensure more consistent enforcement of health and safety standards in ports and targeting workplaces with poorer performance. The Committee requests the Government to keep it informed of any progress made in this field and to send any available information enabling an evaluation of the effectiveness of the inspection services and also the impact of consistent application of health and safety standards in dock work.

(iii)   Consultation and action on safety and health issues. The Committee notes the statement by the NZCTU that the reluctance of the directors of certain ports to consult the workers concerning operations and equipment connected with safety and health increases the risk of accidents. The NZCTU adds, however, that the MNZ has favoured a tripartite partnership including the establishment of training and safe working methods. The Committee notes the Government’s indication that, in 2003, provisions concerning the participation of workers in the area of safety and health came into force, the employers being obliged to give the workers the opportunity to participate effectively in procedures designed to improve occupational safety and health. The Committee requests the Government to keep it informed of any progress made in this area, and to supply all available information enabling an evaluation of the impact of consultations and the participation of workers concerning industrial accidents and also a copy of the provisions which came into force in 2003 concerning the participation of workers in the area of safety and health.

4. With regard to the invitation made by the Governing Body to the States parties to Convention No. 32 to consider the ratification of the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152) – the ratification of which would automatically entail an immediate denunciation of Convention No. 32 – the Committee notes that the Government does not at present envisage ratifying this instrument. Although the Government and Business New Zealand strongly support the adoption of suitable provisions in safety and health for all workers in all sectors of activity, the Government considers that ILO Conventions covering specific sectors may be less appropriate than universal standards establishing a minimum framework for all sectors. The Committee would be grateful if the Government would keep it informed of all new developments in this respect.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

1. The Committee notes the information provided by the Government in reply to its previous comments regarding the number and causes of all kinds of accidents reported and the number of workers covered by the relevant legislation.

2. The Committee notes with interest the publication in 1997 of the Port Safety Guidelines that give guidance on the application of the Health and Safety in Employment Act in port operations. These guidelines, which are based on the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152), are currently being revised with the intent that they will be issued as an Approved Code of Practice under the Act. It is also intended that, once an Approved Code of Practice is published, the superseded General Harbour Regulations will be revoked. The Committee also notes with interest the information that, in addition to the guidelines, a range of material is published by the Occupational Safety and Health Service, summarizing the requirements and providing guidance to the Act. The Committee further notes with interest the information that in February 1999, New Zealand and Australia signed a memorandum of understanding recognizing each other’s inspections as equivalent. Thus, a vessel inspected in Australia en route to New Zealand will only be inspected in New Zealand if a deficiency was reported in Australia.

3. The Committee notes the comments made by the New Zealand Council of Trade Unions expressing a number of concerns.

(i)  The NZCTU indicates that unions affiliated to it have raised concerns about delays in obtaining assistance from either the Occupational Safety and Health (OSH) service within the Department of Labour or the Maritime Safety Authority (MSA). It indicates that while the waterfront industry is a 24-hour one, there are often delays in obtaining assistance on weekends and at night. It states that these issues are more pronounced in regional ports. The Committee notes the reply given by the Government that OSH has a 24-hour call-out policy in respect of accidents. It adds that an emergency mobile number is usually contained in each OSH branch office’s after-hours message. The NZCTU states that the immediacy of the response depends upon the nature and gravity of the event being reported. If any problems are experienced in particular instances, the unions concerned are able to contact the OSH service manager in the first instance, or the national service manager in the second instance. The Committee would be grateful if the Government would continue to provide information on the workings of the arrangements in place for assistance during weekends and nights.

(ii)  The NZCTU is also concerned about what it calls the unclear jurisdictions between OSH and MSA, which potentially creates instances where neither agency claims responsibility for specific waterfront accidents and hazards. It indicates that one example provided to it involved the malfunctioning of a crane that was being driven by a waterfront worker on a ship. While normally the MSA would assume responsibility for incidents on board ships, the situation supposedly fell outside their jurisdiction because the crane was not being driven by a member of the crew. In its reply, the Government states that if any problems are experienced in a particular instance, the union concerned should contact the OSH service manager or the national service manager. The Committee would be grateful if the Government would continue to provide information on how potential difficulties of jurisdiction are being resolved without prejudice to the workers’ requirements of assistance due to accidents and hazards.

(iii)  The NZCTU also reiterates its previous requests that the Government report on waterfront injury rates, as well as fatalities. This would, in its view, provide a more useful assessment of the incidence and severity of accidents. It indicates that relevant data could include serious harm accidents notified to OSH, and moderate to serious work-related claims recorded by the Accident Insurance Regulator. The Government replies that it does not collect separate figures on waterfront injuries and is not therefore able to supply separate data. It states that the Accident Regulator is able to provide data on claims by occupation only, not by place of accident, which will not necessarily result in accurate data in respect of waterfront injury rates. The Committee would be grateful if the Government would continue to provide all available data that may help identify the particular location of accidents and thus permit a better assessment of the incidence and severity of accidents.

The Committee wishes to recall the invitation formulated by the Governing Body to States parties to Convention No. 32 to contemplate ratifying the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152), the ratification of which, ipso jure, will involve the immediate denunciation of Convention No. 32. The Committee would be grateful if the Government would provide information in this regard.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes with interest the information provided in the Government's report and, in particular, the statistics concerning inspections which had been carried out and the number of fatalities reported having occurred during cargo-working operations.

The Committee notes the comments made by the New Zealand Council of Trade Unions (NZCTU) which points out that not all foreign vessels were inspected on arrival on the New Zealand coast due to time of arrival and insufficient inspection staffing. The NZCTU states that a number of accidents causing serious harm have occurred during the period covered by the Government's report. The Committee takes note of the Government's reply to these comments, where the latter emphasized that all these vessels have been inspected in the past two years; a total of 100 per cent of these vessels were inspected at either their first or second port of arrival, 99.5 per cent were inspected at the first port. As regards the incidents causing serious harm, the Government points out that their number had shown an increase in the earlier part of the reporting cycle and a significant decrease in the latter part.

The Committee would be grateful if the Government would provide information regarding the number and causes of all kinds of accidents reported (not only the fatalities) and the number of workers covered by the relevant legislation (point V of the report form).