Tighten our rules to avoid death by overwork

SUSAN HORNSBY-GELUK
Last updated 05:00 17/12/2013

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OPINION: As we shut down our PCs and head to the beach for the Christmas break, spare a thought for those who might not be so lucky.

Over in Japan, widow Mayuni Iwata is campaigning for new laws to prevent people from literally working themselves to death. She claims that her husband, formerly the manager of a chain of pizza restaurants, had been forced to work up to 14 hours a day for more than 10 years. His death was found to have been the direct result of overwork.

The concept is not foreign to the Japanese. It even has a name - karoshi, or sudden occupational death. The usual causes are stress-related heart attacks and strokes, and, in many cases, excessive and unrelenting work hours appear to be a common factor. Should we be concerned here in New Zealand?

While the 40-hour working week is still standard practice on paper, Kiwi workers in reality are under the pump when it comes to feeling pressured to work longer hours. With the rise of mobile technology, we are potentially always accessible and on the job.

"Home officing", both fulltime and part-time, is also on the increase. Increased flexibility there may be, but the downside is that the opportunity to switch off when you leave the office has become a virtual impossibility.

As a nation we were trail-blazers back in 1840 when Samuel Parnell established the right to an eight-hour day, 40-hour week. That expectation continues to apply today as part of the Minimum Wage Act 1983, and means that no employer can require a working week of more than 40 hours (exclusive of overtime) of any employee. But - and there is a big but here - the maximum number of hours can exceed 40 if the parties agree to it.

Employers tend to dictate business hours according to their business needs. Hospitals and many factories run through the night, requiring staff to be on-call for designated shifts. Shift work has long been recognised as less-than-ideal for those who work it, and a potential health and safety hazard in and of itself. The employment agreements that are negotiated for this type of work typically contain detailed hours-of-work clauses, including desired or absolute work and rest periods in an attempt to minimise the health and safety risks.

Yet the reality is that, inhospitable and potentially harmful work arrangements like broken shifts, long hours, callouts and call-backs are common place in employment agreements, provided the employer is prepared to pay extra to an employee for doing so. While these "penal payments" are intended to deter an employer from using them and incurring the additional cost, the flipside is that the additional amounts on offer also make that work very attractive to staff.

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An OECD report has found that 13 per cent of New Zealanders (20 per cent of men and 7 per cent of women) work more than 50 hours a week compared with an average of 9 per cent for all other countries. The report said "evidence suggests that long work hours may impair personal health, jeopardise safety and increase stress". That proposition is difficult to disagree with.

However, are we doing all that we could or should? While we might be some way off the systemic overwork culture of Japan, that didn't prevent the United Nations' Economic and Social Council from recommending, in May 2012, that New Zealand impose a maximum number of work hours in a bid to reduce health-and-safety risks.

The Government rejected the recommendation, with the Ministry of Business, Innovation and Employment stating that the Government was intent on improving workplace health and safety through the work of the now-completed Independent Taskforce on Workplace Health and Safety.

The taskforce found that our current health and safety system is not fit for purpose. Many submissions to the taskforce recognised maximum working hours was an important issue, and one which should be regulated because long hours contribute to fatigue and distraction (and especially in industries with poor rates of pay). Interestingly, however, the draft health-and-safety legislation that was subsequently developed hasn't yet run with the "maximum working hours" concept.

Given the ability of employers and staff to easily over-ride the basic 40-hour starting point in the Minimum Wage Act, Mr Parnell's hard work is now about as useful as a birthday on Christmas day - it's there but everyone really just ignores it.

Employers are required by law to take all practicable steps to provide a healthy and safe workplace. Conversely, staff are required to take all practicable steps to ensure their own health and safety, and that of others. The increasing number of cases coming before the courts where overwork is cited as a stressor and as having damaged an employee's wellbeing suggests this area needs closer scrutiny.

A balance needs to be struck between productivity and ensuring the safety of employees, but the statistics indicate that tightening up the rules around working hours might go some way to cleaning up New Zealand's less-than-impressive health and safety record. Karoshi has no place in New Zealand workplaces.

Susan Hornsby-Geluk, partner, Dundas Street Employment Lawyers, dundasstreet.co.nz

- © Fairfax NZ News

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