CONTROL OF WORKING CONDITIONS
The first legislative control over working conditions in factories in New Zealand was the Employment of Females Act of 1873 applying to factory employment. This Act dealt with hours of work, holidays, sanitation, and ventilation, but was largely ineffective through lack of enforcement machinery. In 1881 the Employment of Females and Others Act placed further restriction on hours of work and provided for overtime to be paid at penal rates, but this measure also lacked adequate enforcement.
Between 1881 and 1890, economic depression was accompanied by a steady worsening in conditions of employment until, in response to increasing public pressure, the Government set up a Royal Commission in 1890 to inquire into allegations of sweated labour. The Commission recorded a considerable number of cases of exploitation of workers (such as girls working 18 hours a day for 7s. to 8s. a week, a baker working 108 to 112 hours a week for 25s., seven women working in a cellar 12 ft × 8 ft 8 ft), but it did not agree that cases of exploitation were general enough to be described as a “sweating system”.
Following upon the findings of the Royal Commission, the Factories Act 1891 was passed, the first measure to include adequate provision for inspection and enforcement. In the first three months of operation inspectors required improvements and alterations in 913 factories. It was replaced by the Factories Act 1894, which was a more extensive measure. This legislation was last re-enacted in 1946. In 1894 there were 25,851 workers in factories; 1908, 78,625; 1936, 102,275; 1945, 138,600; and 1965, 282,561.
Between 1890 and 1908 there was an extension of legislative control over working conditions (through inspection and enforcement provisions) in shops and offices, mining, shearing, and shipping. Today special legislation also covers other major groups such as agricultural workers, bush workers, and the building and construction industry, while many other classes of workers have special protective provisions in appropriate legislation governing their industries or employment.
The Factories Act of 1946
The Act, which is administered by the Labour Department, defines a factory and requires every factory to be registered with the Department. The Act also provides for the appointment of Inspectors of Factories, who must be qualified by examination and who have rights of entry and authority to take enforcement action. In 1960–64 there were 116 Inspectors of Factories and 20,439 registered factories. The administration of the Act rests on these two bases of registration and inspection. Factories are predominantly small and in 1965 there were only 351 with more than 100 employees. Over 75 per cent of factories employed 10 or less persons.
No boy or girl of under 15 years may be employed in a factory, and no boy or girl of under 16 years may be employed without a certificate of fitness.
On the matter of hours of work, the Factories Act provides that the ordinary hours of work in any factory shall not exceed 40 a week and eight a day (excluding meal times), and that not more than four and one quarter hours may be worked continuously without a break of at least three-quarters of an hour for a meal. There is an exception to this latter provision, the four and one quarter hours being extended to five hours where a worker is allowed a rest period of not less than 10 minutes in every working period of not more than three hours. Time outside the ordinary hours may be worked at penal rates provided that, in the case of female employees, the amount of overtime worked must not exceed a specified amount. Females may not be employed, with some exceptions, particularly in respect of seasonal industries, in a factory between 6 p.m. and 8 a.m., and there are restrictions on the maximum daily and weekly hours they may work. There are no restrictions on overtime work at penal rates by males under the Act, but there may nevertheless be restrictions imposed by the award or industrial agreement. The Act also makes provision for holidays and for payment where work is done on a holiday. Generally, treble time is counted for work done on statutory whole holidays where the worker would be paid ordinary time if not working, and double time is counted for work done on Sundays.
Factory occupiers are prohibited from letting or giving out work of any description to be done by any person elsewhere than in a registered factory unless that person is the holder of an “outworker's licence”. There may not be more than one outworker to every 10 persons employed in the factory. An outworker's licence will only be granted by an Inspector of Factories where he is satisfied that the person to whom the application relates is in necessitous circumstances and for special reasons is unable to work in a factory, and that the working conditions where the work will be done and the remuneration for it are at least equivalent to those prevailing in the factory itself.
The Act lays down extensive general health, welfare, and safety provisions relating to such matters as air space, cleanliness, ventilation, lighting, meal facilities, and canteens, rest rooms, washing and lavatory facilities, provision of first-aid appliances, exits and fire escapes, reporting of accidents, safety requirements, etc. Minimum requirements are stated in the Act, but in most cases there is a discretion vested in the Inspector of Factories to require more than the basic minimum in appropriate circumstances.
For certain industries or processes, special regulations have been made under the Act to deal in greater detail with special conditions or hazards, e.g., The Lead Process Regulations 1950; The Spray Coating Regulations 1962; The Electroplating Regulations 1950; The Abrasive Blasting Regulations 1958; and The Noxious Substances Regulations 1954.
Factories are inspected periodically and also when complaints are received. Where conditions fail to comply with the requirements of the Act or regulations, the Inspector of Factories may serve a requisition on the occupier requiring specified things to be done and setting a time for compliance. Such requisitions may be appealed against in a Magistrate's Court. The Act provides penalties for failure to comply with a requisition and also provides that the registration of a factory may be refused or cancelled if the conditions in that factory do not comply with the Act. There is thus adequate provision for enforcement, but the policy of the Labour Department places main emphasis on education of factory occupiers in the requirements placed upon them and on consultation, advice, and cooperation.
The Machinery Act of 1950
The Machinery Act 1950, which is administered by the Labour Department, replaced the earlier Inspection of Machinery Act 1928, which had been administered by the Marine Department although the latter Department has remained responsible for the inspection of lifts, cranes, boilers, cargo handling gear, winding engines, and steam engines. The 1950 Act brought the inspection of other machinery, wherever it might be and not only in factories, into alignment with the procedures already established under the Factories Act. The separation of statutes was retained because of the much wider scope necessary in the case of machinery.
Inspectors under the Factories Act 1946, Bush Workers Act 1945, Construction Act 1959, Quarries Act 1944, and Coal Mines Act 1925 have all the power of inspectors under the Machinery Act 1950. There is an obligation on manufacturers of machinery to ensure that its dangerous parts are safeguarded, and this obligation is extended to any person who sells it or lets it out on hire. There are restrictions on the employment of women and young persons in working with machinery. Owners of machinery must keep a record of all accidents, and serious accidents must be reported to Inspectors within 48 hours. The Act provides for the making of regulations, and in 1956 the Woodworking Machinery Regulations were made specifying detailed requirements in respect of circular saws, bandsaws, planing machines, shaping machines, sanding machines, power handtools, etc.
Construction Act of 1959
The first legislation governing the safety of workmen engaged on building and construction work was the Scaffolding Inspection Act 1906. It was a short Act, a little over two pages, requiring notification of intention to erect any structure or framework over 16 ft in height, or any swinging stage, for the support of workmen engaged on building work. It provided for the appointment of inspectors with rights of entry and inspection, and enabled regulations to be made specifying minimum safety requirements. This Act was replaced by the Scaffolding and Excavation Act 1922 which reduced the minimum notifiable height of scaffolding to 12 ft and extended coverage to excavations of a depth of 5 ft or more, and to cranes and lifting gear used in construction work. An inspector was empowered to order unsafe work to cease or to brand and destroy unsafe gear; he could also demand that an employer comply with any requirements of regulations made under the Act.
This Act was amended in 1924 and 1948, and in 1951 was extended to engineering construction. At the same time its provisions were widened in respect of health and welfare. Although the obligation rested on the employer to comply with the requirements of the regulations and with directions made by an inspector, the emphasis rested on inspection. The inspector was commonly regarded as the person mainly responsible for seeing that safe conditions existed in the building and construction industry.
This emphasis was greatly changed in the 20-page Construction Act 1959 which replaced the Scaffolding and Excavation Act 1922. The new Act placed responsibility much more clearly upon the employer or his agent – to such an extent that, if the employer is unable to exercise personal supervision on any “notifiable work”, he must appoint a safety supervisor to represent him on the job. A safety supervisor must be a person suitably experienced to carry out the duties and functions specified under the Act, and he must not be overloaded with other duties such as to prevent him from carrying out his functions as safety supervisor. The employer must notify the inspector of the name and address of each safety supervisor he appoints. It is the duty of each safety supervisor to ensure that the safety provisions of the Act and regulations made under it are complied with.
The principal function of safety inspectors under the Construction Act is to provide for the safety and welfare of workmen engaged in construction work, to advise employers and workmen as to the safe practices recommended for the work, to ensure that the provisions of the Act and regulations are complied with, to investigate accidents and generally to take steps to prevent or limit accidents. Inspectors have rights of entry and a wide range of powers.
The range of work covered by the new Act was also further widened to cover virtually every aspect of all work connected with building and construction activities. These activities include such works as road, railway, aerodrome, and harbour works; drainage, irrigation, and river-control works; reticulation of electricity, gas, water, and telephone and telegraph; and earthworks, bridges, dams, tunnels, reclamations, etc.; as well as the erection of buildings and other structures, excavations and site preparation, and the use of any plant, tools, gear, or materials for the purpose of any construction work.
The Construction Regulations 1961 contain extensive detail as to notifiable work, certificates of competency, health and welfare, general safety, scaffolding, excavations, and examinations for inspectors.
In 1964 the estimated total labour force engaged on work covered by the Construction Act was 92,500. The total reported accidents in the construction industry in 1963 was 9,567, of which 32 per cent arose out of the handling of objects, 16 per cent from the use of hand tools, 19 per cent from falls, and 12 per cent out of the use of machinery, leaving 21 per cent unclassified.
The Shops and Offices Act of 1955
The first legislation specifically governing working conditions in shops in New Zealand was the Shops and Shop Assistants Act of 1892. Like much other pre-1894 legislation, it was unsatisfactory through being too general in its few brief provisions and through lacking effective enforcement measures. It was replaced by the Shops and Shop Assistants Act 1894 which was more definite in its requirements and which placed enforcement in the hands of factory inspectors. The 1894 Act limited the weekly hours of women of all ages and of boys under 18 years to 52 hours and limited their daily hours to nine and a half hours, with the exception that on one working day in each week 11½ hours might be worked. Overtime for women and boys was restricted to three hours a day on not more than 40 days each year. All shop assistants were to have a half-day off work on one working day in each week and, in cities, boroughs, and town districts' shops (except fruiterers and some other exempt categories) were to close from 1 p.m. onwards on one working day each week. The Act required adequate sanitation to be provided, and contained other health and welfare provisions. Some of its provisions applied to offices as well as shops.
In 1895 an interesting amendment was effected enabling the Minister of Labour to prescribe a closing hour for shops of 9 p.m. or 10 p.m. on Saturdays where three-fifths or more of the shopkeepers in any locality asked for such a limitation. The Act was frequently amended in succeeding years, amendments being mainly related to shops and more particularly to opening and closing hours and to hours of work. Its application to male workers gradually extended. In 1904 it was consolidated and re-enacted as the Shops and Offices Act 1904. It was re-enacted again in 1908, in 1921–22, and in 1955. Legislative interest in recent years has centred mainly on trading hours and Sunday and after-hours trading.
The 1955 Act defines a shop as any building or place in which goods are kept, exposed, or offered for sale, or in which any part of the business of a shop is conducted. Licensed hotels, restaurants, hair-dressing saloons, auction markets, and automatic-vending machines come within the definition. An office is defined as any building in which any person is employed, directly or indirectly, to do any clerical work in connection with any business carried on therein by the occupier. The clerical work of a factory or shop is excluded if done within the factory or shop.
The Act contains general provisions on safety, health, and welfare which relate to both shops and offices – provisions relating to the storage of dangerous goods, limitations on loads to be carried by employees, safety and safe means of access, fire precautions, cleanliness, air space and ventilation, lighting, heating, sanitary conveniences, washing facilities, seating for employees, and various other matters. It also has a number of general provisions which relate to both shops and offices, such as the requirement to keep a wages and time book, inspection powers of inspectors, and enforcement procedure. Both shops and offices are subject to a 40-hour week but restrictions on overtime provided in the case of shops do not apply to offices, nor do the provisions relating to opening and closing hours of shops apply to offices.
For shop assistants the Act provides a 40-hour five-day week with a limit of eight hours a day except on one day in each week when 11 hours may be worked. There are special restrictions on the hours of work of young persons and on the working of extended hours (i.e., beyond 40) in shops. In any award relating to the employment of shop assistants, the Court of Arbitration is empowered to fix the opening and closing hours of shops. Any shopkeeper, except the occupier of a chemist's shop, may apply to a Shops and Offices Exemptions Tribunal for exemption from closing hours so fixed by the Court. Chemists' shops may be exempted by the Minister of Labour.
Although the Act contains a general prohibition against shops opening on Sundays, there are exceptions to this through two main channels – first, by the listing of certain goods which may be sold on Sundays and at other times outside normal hours; and, second, by a grant of exemption to individual shops to permit them to open on Sundays. Where a shop sells exempted goods outside the normal trading hours, the Act requires all non-exempted goods to be locked away and not exposed for sale.
Protection of Wages
Measures providing for enforceable minimum rates of wages have already been described. A worker's wages are also protected in various other ways, the principal protection being provided in the Wages Protection and Contractors Liens Act of 1939 and the Wages Protection Act of 1964. The first legislation of this kind was introduced in 1871 when the Contractors Debts Act gave a worker a means of recovering wages due as a priority claim against the employer. This legislation was replaced in 1884 by the Workmen's Wages Act. In 1891 a Truck Act prohibited the payment of wages in any form except money, with the main object of preventing an employer from paying a worker partly in stores charged at exorbitant prices. The 1964 Act revises earlier legislation whilst retaining its essential principles. Wages must be paid in money unless the worker agrees in writing to accept payment by postal or money order, cheque or bank lodgment. The Crown or local bodies may pay their workers by cheque without need for agreement in writing. Wages must also be paid in full except for deductions (such as income tax) authorised by statute or consented to in writing by the worker. The Wages Protection and Contractors Liens Act of 1939 protects the wages of certain types of workers mostly in construction projects by making various provisions to ensure priority of payment of wages over other claims against principals, contractors, or subcontractors.
The Bankruptcy Act 1908 and the Companies Act 1955 also contain provisions giving priority to wages in the event of bankruptcy or the winding up of a company. There are special provisions, mainly relating to the place of payment, in the Coal Mines Act 1925, the Mining Act 1926, the Shipping and Seamen Act 1952, and the Sale of Liquor Act of 1962.
In 1882 an Employers' Liability Act was passed by the New Zealand Parliament modelled on a British Act made two years earlier. This was the first provision of its kind in New Zealand. It gave the worker a claim against the employer where there was negligence on the part of the latter or his agent and, subject to some modifications, this continued to be the position until 1900. In 1900 a Workers' Compensation Act was enacted which, for the first time in New Zealand, introduced the principle that compensation for industrial accidents should not rest on proof of negligence by the employer or his agent. In 1908 a new Workers' Compensation Act replaced the 1900 Act, and at the same time legislation was introduced to facilitate and control insurance against industrial accidents. The New Zealand Official Yearbook of 1912, summarising the 1908 legislation, said: “It had been found that little practical advantage accrued to injured workers or their families under the Liability Acts, as most industrial accidents have nothing to do with negligence or shortcomings of employers; such accidents are the outcome of risks incidental to every branch of enterprise and manufacture. The Workers' Compensation Act does not imply a fault on the part of any individual…. To meet the difficulty of too great expense falling suddenly on an employer through his being called upon to pay large compensation for accident, provision is made by the Government Accident Insurance Act 1908, and by a State Department which insures employers against risk. There are also several private companies which undertake these risks and are regulated in some degree by the Accident Insurance Companies Act 1908”. (The Government Life Insurance Office had opened an Accident Branch in 1901, transferred in 1925 to the State Fire Insurance Office.)
The 1908 Act was subject to continuing review and amendment, mainly in the direction of improving the machinery of the Act and liberalising the compensation provisions. In 1922 the Act was consolidated and re-enacted. Since then the more important amendments have been: an amendment in 1947 which made it compulsory for an employer to insure against his liability under the Act; an amendment in 1947 which made workers' compensation insurance (with certain exceptions) a monopoly of the State Fire Insurance Office; and an amendment of 1950 which restored the right of private insurance companies to undertake accident insurance and which established a Workers' Compensation Board to make recommendations as to maximum rates of premiums, and to administer a Workers' Compensation Account also set up by the amending legislation. In 1956 the legislation was again consolidated and re-enacted as the Workers' Compensation Act 1956.
Insurance of employees is compulsory on all employers, though the Secretary of Labour may grant exemption in cases where an employer has adequate financial resources to cover claims or has his employees adequately indemnified against injury in some other way. The Workers' Compensation Board acts as the insurer of employers who have neglected to insure their workers so that workers are protected in all cases, the Board being empowered to recover from the delinquent employers any sums it pays out as insurer. If an injury for which compensation is payable by an insurer was caused under circumstances creating a legal liability for damages in some person other than the employer, the insurer is entitled to indemnification by the person so liable.
Maximum rates of premiums for the different categories of workers are prescribed by regulations. One of the functions of the Workers' Compensation Board is to recommend from time to time what these maximum rates should be. The Board receives notification from insurers of accidents notified and payments made, and from this information is able to recommend adjustments to keep premium rates in line with the incidence of claims. To finance the activities of the Board, which include assistance to research and other activities connected with accident prevention, levies are collected from authorised insurers and exempted employers.
Maximum rates of compensation are fixed from time to time by Order in Council. Maximum total payments of compensation for death or incapacity are expressed in the Act in terms of the current maximum weekly payments so that a variation of any weekly rate automatically varies the corresponding total amount. During total incapacity the maximum weekly payments are fixed at 80 per cent of the workers' weekly earnings, but with specified maximum and minimum limits which, by a 1964 amendment of the Workers' Compensation Order 1963, were fixed at £10 17s. 6d. a week and £2 14s. a week respectively at that time. The maximum total sum payable in the case of death or total incapacity was a sum equal to the aggregate of the prescribed maximum weekly payments for 274 weeks. Various allowances and expenses are payable in addition to the ordinary compensation. The worker's weekly earnings are deemed to be his ordinary weekly earnings exclusive of overtime or his average weekly earnings whichever is the greater.
There is a special Compensation Court for the hearing of workers' compensation cases.
by Noel Spencer Woods, M.A., DIP.ED., DIP.SOC.SC., Chief Research Officer, Department of Labour, Wellington.