CONVENTION 14 NEW ZEALAND

Article 22 of the Constitution of the ILO

Report for the period 1 July 2004 to 31 May 2008
made by the Government of New Zealand on the

WEEKLY REST (INDUSTRY) CONVENTION, 1921 (No. 14)

1. Please give a list of the legislation and administrative regulations, etc., which apply the provisions of the Convention.  Where this has not already been done, please forward copies of the said legislation, etc., to the International Labour Organisation with this report.
   
   Please give any available information concerning the extent to which these laws and regulations have been enacted or modified to permit of, or as a result of, ratification.
   • Employment Relations Act 2000;
   • Health and Safety in Employment Act 1992;
   • Health and Safety in Employment Regulations 1995;
   • Minimum Wage Act 1983; and
   • Minimum Wage (New Entrants) Amendment Act 2007

A copy of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 and the Minimum (New Entrants) Amendment Act 2007 (which updates the Minimum Wage act 1983) are provided through the following links:

Flexible Working Arrangements:
http://legislation.govt.nz/act/public/2007/0105/latest/DLM1034656.html

New Entrants:
http://legislation.govt.nz/act/public/1983/0115/latest/DLM74093.html

2. Please indicate in detail for each of the following articles of the Convention the provisions of the above-mentioned legislation and administrative regulations., etc. or other measures under which each article is applied.

Article 1

1. For the purpose of this Convention, the term "industrial undertaking" includes particularly-
   1. mines, quarries, and other works for the extraction of minerals from the earth;
   2. industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed; including shipbuilding and the generation, transformation and transmission of electricity or motive power of any kind;
   3. construction, reconstruction, maintenance, repair, alteration, or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, telegraphic or telephonic installation, electrical undertaking, gas work, water work, or other work of construction, as well as the preparation for or laying the foundations of any such work or structure;
   4. transport of passengers or goods by road, rail, or inland waterway, including the handling of goods at docks, quays, wharves, and warehouses, but excluding transport by hand.
2. This definition shall be subject to the special national exceptions contained in the Washington Convention limiting the hours of work in industrial undertakings to eight in the day and forty-eight in the week, so far as such exceptions are applicable to the present Convention.
3. Where necessary, in addition to the above enumeration, each Member may define the line of division which separates industry from commerce and agriculture.
   
   Please state what decisions, if any, have been taken in regard to the last paragraph of this Article.
   
   The legislation listed in Section I of this report applies to all employees working in New Zealand.

Article 2

1. The whole of the staff employed in any industrial undertaking, public or private, or in any branch thereof shall, except as otherwise provided for by the following Articles, enjoy in every period of seven days a period of rest comprising at least twenty-four consecutive hours.
2. This period of rest shall, wherever possible, be granted simultaneously to the whole of the staff of each undertaking.
3. It shall, wherever possible, be fixed so as to coincide with the days already established by the traditions or customs of the country or district.

The Health and Safety in Employment Act 1992 promotes the prevention of harm in the workplace.  While hours of work and weekly rest periods are not explicitly regulated, a 2002 amendment changed the definition of harm to explicitly include physical or mental harm caused by work-related stress.  In addition, the definition of hazard was amended to include hazardous behaviour resulting from physical or mental fatigue. 

Employers have a duty under the Health and Safety in Employment Act 1992 to prevent harm occurring to employees while at work, including harm arising from excessive work hours or insufficient rest periods.  The Department of Labour has published an Approved Code of Practice for Safety and Health in Forest Operations which includes rules on hours of work and rest periods for the forestry industry.  The Department of Labour also provides guidance on stress and fatigue in the workplace and the effects of shift-work.  This guidance was revised and re-issued in 2007.

In the transport sector, there are specific controls on the working hours of certain occupations or roles.  These are contained in the respective legislative regimes for air, sea, road, and rail transport.

In other sectors, the Department’s guidance through legislation (listed in section 1), encourages employers and others responsible for organising the work of others to address issues of fatigue systematically, and as they would other hazards.  Guidance is framed around the recognition of fatigue and its causes in the workplace, and then developing appropriate strategies, policies and procedures for a particular setting. The law requires employers to take “all practicable steps” to do this.

Article 7

In order to facilitate the application of the provisions of this Convention, each employer, director, or manager, shall be obliged-

1. where the weekly rest is given to the whole of the staff collectively, to make known such days and hours of collective rest by means of notices posted conspicuously in the establishment or any other convenient place, or in any other manner approved by the Government;
2. where the rest period is not granted to the whole of the staff collectively, to make known, by means of a roster drawn up in accordance with the method approved by the legislation of the country, or by a regulation of the competent authority, the workers or employees subject to a special system of rest, and to indicate that system.

Please forward specimen copies of the notices and rosters specified in virtue of this Article.

As discussed under Article 2, the Health and Safety in Employment Act 1992 promotes the prevention of harm in the workplace.  Employers have a duty under the Health and Safety in Employment Act 1992 to prevent harm occurring to employees while at work, including harm arising from excessive work hours or insufficient rest periods.  There is however no explicit regulation of employers, directors, or managers to keep rosters or notices as discussed in this article.  Instead, hours of work would be dealt with through an employment agreement or collective employment agreement.

3. Please state to what authority or authorities the application of the above-mentioned legislation and administrative regulations, etc., is entrusted and the methods for supervising and enforcing that application.  In particular, supply information on the organisation and working of inspection.

The Labour Inspectorate of the Department of Labour is responsible for enforcement of minimum employment statutes on behalf of employees.  Where a Labour Inspector determines that a breach of the employment agreement has occurred, the primary remedy is compliance.

Unions, individual employees or their representatives can also enforce such rights including through seeking assistance from the state funded mediation services of the Department of Labour.

If neither of these approaches is successful, the employee, union, other representative or the Labour Inspector can take an action for breach of an employment agreement in the Employment Relations Authority.

The Department of Labour, Maritime New Zealand and the Civil Aviation Authority administer the Health and Safety in Employment Act 1992. Health and safety inspectors employed by these organisations are responsible for enforcing the Health and Safety in Employment Act 1992.

4. Please state whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention.  If so, please supply the text of these decisions.

No decisions have been made.

5. Please give a general appreciation of the manner in which the Convention is applied in your country, including, for instance, extracts from official reports and information on any practical difficulties in the application of the Convention.

Please refer to Section II of the Government’s report on the Forty Hour Week Convention, 1935 (No.47) for information on hours of work and days on which these are required to be worked.

In addition, under the Health and Safety in Employment legislation, employers are required to prevent harm from occurring to employees while at work. This includes harm arising from excessive work hours or insufficient rest periods.

6. Please indicate the representative organisations of employers and workers to which copies of this report have been provided.

New Zealand Council of Trade Unions
Business New Zealand

Please indicate whether you have received from the organisations of employers or workers concerned any observations, either of a general kind or in connection with the present or the previous report, regarding the practical application of the provisions of the Convention or the application of the legislation or other measures implementing the Convention. If so, please communicate a summary of the observations received, together with any comments that you consider useful.

Response to comments made by the Committee of Experts on the Application of Conventions and Recommendations in 2008

“The Committee notes the comments made by the New Zealand Council of Trade Unions (NZCTU), as well as the comments made by Business New Zealand on the Government’s report concerning the lack of legislative provisions requiring a minimum 24-hour weekly rest period.

The Government explains that, under the Health and Safety in Employment Amendment Act of 2002, every employer has the obligation to prevent harm arising from excessive working hours or insufficient rest periods, thereby implicitly regulating weekly rest periods. The Committee hopes that the Health and Safety in Employment Amendment Act of 2002 will contribute to reinforce weekly rest periods. A consecutive weekly rest period is necessary to avoid workers’ fatigue, but also to grant workers time in which they can develop their personality and take time and care for their families and social activities. This Act, however, does not give a worker the right to claim an uninterrupted rest period of 24 hours. Furthermore, the Employment Relations Act of 2000, with its good faith provisions, fosters individual and collective bargaining, but does not guarantee a weekly rest period. The Committee concurs with the NZCTU’s comments that the "workers’ ability to negotiate hours and rest periods with employers is not, in itself, a strong enough provision to ensure that workers are able to enjoy a good work-life balance with adequate rest breaks".

With reference to its previous direct requests, the Committee wishes to stress once again that the workers to whom this Convention applies are entitled, subject to the exceptions provided for in Article 4 of the Convention, to an uninterrupted weekly rest period of not less than 24 consecutive hours. Weekly rest of workers was already included in the general principles set out in article 427 of the Treaty of Versailles, and, as the Committee pointed out in its General Survey of 1984 on working time, because its origins go so far back, weekly rest is generally speaking one of the aspects of the organization of work which is most scrupulously observed; in many countries, it is looked upon as a fundamental right that is embodied in the Constitution. The Committee trusts that the Government will take in the very near future all steps necessary to ensure that workers in New Zealand are also guaranteed a weekly rest period and requests the Government to keep it informed on all progress achieved.”

In order to address the Committee’s specific comments, the government sets out the legislative and policy approach to weekly rest.  The government considers that the legislation framework set out under Article One and Government policy constitutes compliance with this convention. 

New Zealand’s legislative approach

New Zealand does not have prescriptive legislation in the labour market area. New Zealand’s approach to occupational safety and health is a comprehensive, principles-based and performance-based framework which recognises the diversity and complexity of modern workplaces and work.  In recognising New Zealand’s dynamic and complex labour market, the Government does not consider it is appropriate for Government to assume knowledge of all hazardous situations and prescribe rules for each situation. 

The Health and Safety in Employment Act and the role of Labour Inspectors

New Zealand’s legislative framework, the Health and Safety in Employment Act 1992, is a comprehensive and integrated code which sets out general duties which can be supplemented by regulations, approved codes of practice and guidelines developed by, or in conjunction with, the Government regulators.  Employers are required to take ‘all practicable steps’ to ensure the safety of employees while at work.  This framework ensures that there are strong inducements in place to ensure that workers receive a weekly rest period as outlined in Convention 14.  However, where necessary in some industries, such as the transport sector, there are specific controls on working hours.  This is discussed further under Article 2 of this report.

The Labour Inspectors’ role includes looking into such matters if requested to by an employee in the workplace as noted under section III of this report.

Specific responses to the Committee’s comments

In their comments the Committee notes that, “the Committee hopes that the Health and Safety in Employment Amendment Act of 2002 will contribute to reinforce weekly rest periods” and that “workers’ ability to negotiate hours and rest periods with employers is not, in itself, a strong enough provision to ensure that workers are able to enjoy a good work-life balance with adequate rest breaks”.  The Government consider that the entire legislative framework comprising employment relations, minimum wage, health and safety and labour legislation, as well as policies such as the Work-Life Balance Project, discussed in the government’s report on Convention 47, reinforces the concept of weekly rest periods.  This legislation and policy initiatives combined with enforcement of minimum standards combine to mean that there is compliance with the Convention. 

The Committee in its comments notes that “the Committee trusts that the Government will take in the very near future all steps necessary to ensure that workers in New Zealand are also guaranteed a weekly rest period and requests the Government to keep it informed on all progress achieved.”  The Government considers that the principles and performance based approach to health and safety legislation and the totality of the legislative and policy framework do ensure that New Zealand workers are, and will continue to be, guaranteed a weekly rest period.  New Zealand is a long-standing member of the ILO and remains committed to reporting regularly on all matters in respect of this Convention.