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 2013, published 103rd ILC session (2014)

Article 2 of the Convention. Right to 24-hour weekly rest. The Committee notes that the labour legislation does not expressly provide for a weekly rest of at least 24 hours to be granted wherever possible to the whole staff of an undertaking at the same time and on the traditional or customary non-working days. The Committee also notes that despite recent initiatives, such as the Employment Relations Amendment Act 2013 and its 2013 Blueprint for Health & Safety at Work, the Government has taken no steps towards giving specific legislative expression to the workers’ entitlement to 24 consecutive hours of rest every week, as required under Article 2 of the Convention. In this connection, the Committee notes the comments of Business New Zealand according to which the Convention promotes prescription over principle whereas the New Zealand legislation makes provision for any employee who considers he has been working excessive hours to seek redress. In the view of Business New Zealand, imposing specific time limits on hours of work by legislative means provides no greater guarantee that those limits will be observed than making provision, as the New Zealand’s legislation does, for observance of the weekly rest principle. In addition, the Committee notes the comments of the New Zealand Council of Trade Unions (NZCTU), which disagrees with the Government’s position that section 11B of the Minimum Wage Act effectively ensures that a worker should enjoy at least 24 hours’ rest in every period of seven days. According to the NZCTU, the non mandatory language of section 11B allows the parties considerable latitude to compromise these requirements. Furthermore, considering that private sector union membership and collective bargaining coverage are both below 10 per cent, the NZCTU states that the inherent inequality of bargaining power between individual workers and employers means that much negotiation in relation to hours and shifts takes place on a take-it-or-leave-it basis by the employers. In its response, the Government acknowledges the importance of providing clarity through appropriate legislation and indicates that it has initiated reforms that address both the recommendation of the April 2013 report by an Independent Task Force on Workplace Health and Safety to develop regulations addressing fatigue and long hours of work, as well as the recommendation of the Royal Commission to develop a regulatory framework for the mining industry which would include, among others, a specific requirement to consider shift work and fatigue issues. The Government also refers to the new Approved Code of Practice for Safety and Health in Forest Operations, which will support the Ministry of Business, Innovation and Employment’s forestry harm reduction campaign, which aims to reduce the unacceptably high rate of accidents in the forestry sector. However, the Committee observes that with respect to the right to weekly rest, which is the subject matter of this Convention, the Government provides no new information as to whether and how it intends to bring the national legislation into closer conformity with the Convention by explicitly recognizing the workers’ entitlement to a minimum 24-hour rest in every seven-day period. The Committee once again expresses the firm hope that the Government will consider suitable action to fully transpose the basic requirement of the Convention into domestic legislation.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 2 of the Convention. Right to weekly rest. The Committee has been commenting on the lack of legislative provisions guaranteeing the workers’ right to an uninterrupted weekly rest period comprising at least 24 consecutive hours in every period of seven days based on the principles of regularity, continuity and uniformity. In its reply, the Government indicates that measures to give specific legislative expression to the requirements of this Article of the Convention are not thought to be necessary. The Government explains that while the national legislation does not explicitly regulate weekly rest periods, the Convention is still given effect through a combination of existing legislation, mainly the Health and Safety in Employment Act 1992 which obliges employers to take all practical steps to ensure employees are free from harm, including work-related stress or physical or mental fatigue, while at work; the Employment Relations Act 2000 which requires a written agreement for all employees; and the Minimum Wage Act 1983 which provides that if the maximum number of hours in the week is not more than 40, the employer and the employee must endeavour to fix the daily working hours so that they are not worked on more than five days of the week. In this connection, the Committee notes the observations made by Business New Zealand (BNZ) in support of the Government’s position, indicating that New Zealand’s legislative framework is clearly protective of employees’ health and safety while recognizing at the same time the changes in the nature of work and work practices since the adoption of the Convention, which makes compliance with its rigid requirements not always possible.

While noting these explanations, the Committee is still of the view that in the absence of concrete rules and of standards clearly spelled out in national laws and regulations or in collective agreements, the protection of the workers’ right to weekly rest in the manner foreseen by the Convention cannot be attained. The Convention was indeed adopted in 1921, but this fact alone does not render it irrelevant in today’s context. The body of international labour standards has not remained irresponsive to the challenges of globalization and the momentous changes occurring in the world of work. It is worth recalling, in this respect, that a comprehensive review of international labour Conventions and of Recommendations was undertaken between 1995 and 2002 by the ILO Governing Body through its tripartite Working Party on Policy regarding the Revision of Standards. Upon completion, 71 Conventions – including both Conventions Nos 14 and 106 on weekly rest – were designated as being up to date and recommended for active promotion. The Committee therefore considers that the object and purpose of the Convention, as well as its normative content, have not lost any of their relevance and remain as an essential feature of labour legislation as ever before. The Committee accordingly asks the Government to consider all appropriate action in order to bring national law and practice in closer conformity with the letter and the spirit of the Convention.

In addition, the Committee notes the comments made by the New Zealand Council of Trade Unions (NZCTU) in which the NZCTU raises concerns about the impact of fatigue due to excessively long hours of work in the sectors of road transport and mining. According to the NZCTU, driver fatigue is primarily a safety concern but it is linked to an apparent lack of adequate rest. As regards the situation in certain mines, the NZCTU denounces practices of seven days working in a row together with shifts that last for 11 or 12 hours each. Finally, the NZCTU draws attention to draft new legislation which seeks to remove the workers’ right to a meal and rest break by either transferring it to another time or replacing it by a monetary compensation. Even though this last point is not directly related to the application of the Convention but illustrates the utmost importance of regular rest periods for the worker’s health and well-being, the Committee requests the Government to provide any comments it may wish to make in response to the observations of the NZCTU.

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 2 of the Convention. Workers’ right to weekly rest. Further to its previous observation, the Committee notes the Government’s explanations that, under the Health and Safety in Employment Act 1992, as amended, employers have a duty to prevent harm occurring to employees while at work, including the effects arising from excessive work hours or insufficient rest periods, even where hours of work and weekly rest periods are not explicitly regulated. The Government states that, in the absence of prescriptive legislation, New Zealand’s approach to occupational safety and health is a comprehensive, principles-based and performance-based framework which recognizes the diversity and complexity of modern workplaces and work. The Government adds that the Health and Safety in Employment Act is a comprehensive and integrated code which sets out general duties that can be supplemented by regulations, approved codes of practice and guidelines. This framework guarantees that there are strong inducements in place to ensure that workers receive a weekly rest period while employers are required to take all practicable steps to guarantee the safety of employees while at work.

In addition, the Committee notes the comments made by Business New Zealand (BNZ) according to which daily rest periods are specified in collective or individual employment agreements while the requirement for at least 24 hours of weekly rest is implicit in the obligation to specify hours of work. According to the BNZ, these protective standards are likely to prove far more effective than the provision of a statutory 24-hour weekly rest period, which might be more honoured in the breach than the observance.

While taking due note of these explanations, the Committee feels obliged to observe that the provisions of the Health and Safety in Employment Act in relation to weekly rest are general and overly permissive and therefore fail to give effect to specific requirements of the Convention. The Committee wishes to recall that the scope and purpose of Article 2 of the Convention are clear; workers must be granted an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days, and this rest period should, to the extent possible, be the same for all and should coincide with the day already designated by tradition or custom as day of weekly rest. The Convention is thus articulated around three basic principles: regularity (rest to be taken at seven-day intervals); continuity (rest of at least 24 consecutive hours); and uniformity (weekly break to be taken simultaneously by all workers). These are minimum standards, which governments are bound to apply and enforce, either through national laws or regulations, or by ensuring that collective agreements contain at least as favourable provisions. The Convention permits, of course, total or partial exceptions (including suspensions or diminutions) from the general weekly rest standard set out in Article 2, especially when the inherent need to keep certain establishments in operation (e.g. continuous processes, transport, hospitals, hotels, newspapers, etc.) or exceptional conditions (e.g. accidents, force majeure or urgent work to premises or equipment) so require. It seeks to guarantee, however, that total or partial exceptions to the normal weekly rest are authorized on as limited grounds as possible, and in any case only after due consideration having been given to all social and economic implications and needs.

The Committee considers that the workers’ right to a minimum period of weekly rest and leisure as prescribed by the Convention is of such cardinal importance for their health and well-being that needs to be regulated in a well‑circumscribed and thus binding form and cannot be left to the mere persuasion power of codes of practice and guidelines. As for BNZ’s comment referring to the Committee’s apparent inability to recognize that this is a Convention dating from 1921 and that overall industrial relations protections have moved markedly since then, the Committee recalls that the principles and objectives pursued by Convention No. 14 have been reaffirmed and strengthened by another ILO Convention (No. 106) concerning weekly rest in commerce and offices, which was adopted in 1957 and which has received to date 63 ratifications. In the light of the preceding observations, the Committee hopes that the Government will take all necessary steps in order to bring its legislation into conformity with the basic requirements of the Convention by giving specific legislative expression to the workers’ entitlement to 24 consecutive hours of rest every week.

Moreover, the Committee notes the comments made by the New Zealand Council of Trade Unions (NZCTU) concerning the problem of driver fatigue in the road transport sector principally due to existing legislation that allows up to 70 hours of work per week. The NZCTU acknowledges that government agencies work to address the issue, for instance, by developing a strategy to combat the issue of driver fatigue, announced in December 2007, but indicates that cumulative tiredness and stress from excessively long hours may not be resolved by short breaks. The Committee would appreciate receiving any comments the Government may wish to make in response to the observations of the NZCTU.

Finally, the Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that the ratification of up to date Conventions, including the Weekly Rest (Industry) Convention, 1921 (No. 14), and the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106), should be encouraged because these instruments continue to respond to current needs (see GB.283/LILS/WP/PRS/1/2, paragraphs 17–18). The Committee accordingly invites the Government to contemplate ratifying Convention No. 106 and to keep the Office informed of any decisions taken or envisaged in this respect.

[The Government is asked to reply in detail to the present comments in 2010.]

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.

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

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.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report and the information supplied in answer to its previous direct request. It also notes the comments made by the New Zealand Employers Federation (NZEF) and the New Zealand Council of Trade Unions (NZCTU) enclosed with the report.

The Government states that the Employment Relations Act, repealing the Employment Contracts Act, came into effect on 1 August 2000. The new Act improves support for freedom of association and imposes good faith in all collective bargaining, which will have an impact on hours of work and rest periods amongst other things. In this connection the Government states that, according to the figures provided by the Department of Labour, 44 per cent of the collective labour agreements in force involving enterprises with more than 20 workers specify a distribution of working hours over five days, 7 per cent over six days and 20 per cent over seven days. The latter case of seven days applies only to certain activities, which are cited. Lastly, the Government states that few employees work seven days without a weekly rest period.

The NZCTU deplores the possibility of distributing hours of work across seven days, considering it to be an example of the general deterioration in conditions of work in the provisions of work contracts. The NZEF takes the view that implementation of the Employment Relations Act will make the situation of workers in small enterprises, who are excluded de facto from the scope of the Act, even more precarious. The NZEF also regrets that the Government has not always made specific provision for weekly rest, particularly for compensatory rest periods in the event of derogation, despite the Committee’s comments. In its reply the Government acknowledges that no provision is made for compensatory rest. It adds that most collective contracts allow remuneration in lieu of rest.

With reference to its previous comments, the Committee wishes to recall once again that the persons 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. It therefore once again draws the Government’s attention to the need to make specific provision for compensatory periods of rest for any suspensions or diminutions made, pursuant to Article 5. It also asks the Government to continue to provide information on the practical application of the Convention, as required by Part V of the report form.

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 1995, published 82nd ILC session (1995)

The Committee notes the observations made by the New Zealand Council of Trade Unions (NZCTU) concerning the lack of legislative provisions requiring a minimum 24-hour weekly rest, as well as the Government's reply to these comments. The Committee also notes the comments made by the New Zealand Employer's Federation regarding the flexibility in rest period arrangements. In this connection, the Government refers to section 11B of the Minimum Wage Act 1983 (added to the Act by section 10 of the 1991 Minimum Wage Amendment Act). Section 11B provides that where the maximum working hours, exclusive of overtime, fixed by an employment contract are not more than 40 the parties should endeavour to fix daily hours so that they are worked not more than five days of the week. The Government further indicates that employment contracts agreed to by employees and employers provide for compensatory rest periods.

The Committee recalls that persons covered by the Convention are entitled to an uninterrupted weekly rest period of not less than 24 consecutive hours, subject to exceptions allowed under Article 4 of the Convention. The Committee therefore requests the Government to supply a list of exceptions made under Article 4 and to indicate any consultations with the responsible associations of employers and workers which have occurred with regard to these exceptions. Furthermore, it requests the Government to indicate any provisions made in practice for compensatory rest periods in cases where such exceptions have been made, in conformity with Article 4.

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.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

In its previous direct request, the Committee noted the comments of the New Zealand Council of Trade Unions (NZCTU) that the effect of section 172 of the Labour Relations Act of 1987 was that workers' protection was opened to negotiation, when the principle of weekly rest could be traded off for basic standard-of-living provisions. In its latest comments, the NZCTU has reaffirmed its views: it states that under the Employment Contracts Act, 1991, workers and employers may negotiate whatever working hours they wish; and that in a weak economy, where the workers' bargaining position is weak and access to unemployment benefit is limited, workers have to accept the hours offered or remain unemployed, so that the requirements for weekly rest are no more than a hope expressed by the Government and the Convention is not being honoured.

The Government states that the standard working week continues to be 40 hours and five days, generally running from Monday to Friday, and that this exceeds the standards set in Articles 1 and 2 of the Convention. Different arrangements have been negotiated by some employers and employees, however, and this is considered compatible with Article 4. The Government has no evidence of any employment contracts inconsistent with the Convention.

The Committee notes that the 1987 Labour Relations Act (section 172 of which referred specifically to not working on Saturdays or Sundays) has now been repealed and that section 10 of the 1991 Minimum Wage Amendment Act states that, where the maximum working hours (exclusive of overtime) fixed by an employment contract are not more than 40, the parties should endeavour to fix daily hours so that they are worked on not more than five days of the week. It recalls that under Article 2 there should be a minimum 24-hour weekly rest granted wherever possible to the whole staff of an undertaking at the same time and on the traditional or customary days. It would be grateful if the Government would include in future reports the information requested in the report form concerning total and partial exceptions made under Articles 3 and 4 and arrangements made for compensatory rest (see under Articles 5 and 6 and point V of the report form).

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the observation of the New Zealand Council of Trade Unions (NZCTU), that under section 172 of the Labour Relations Act of 1987 the parties to an award or agreement may agree to set a maximum number of hours of work per week in excess of 40, including work on Saturday or Sunday. The NZCTU does not believe that the Convention's obligations are met when workers' protection is open to negotiation and when they are being asked by employers to trade off the principle of weekly rest for basic standard of living provisions.

The Committee would be glad if the Government would communicate its own views on this matter, and in particular indicate the practical effect of section 172(2)(a) and (3), having regard to the requirements of the Convention.

The Government is asked to report in detail for the period ending 30 June 1991.