Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - New Zealand (Ratification: 1983)

1. The Committee notes the detailed information provided by the Government in its report and the attached documentation. It also notes the comments submitted by Business New Zealand and the New Zealand Council of Trade Unions (NZCTU) and the Government’s reply to NZCTU.

2. The Committee notes with interest that the Employment Relations Act (ERA), which entered into force on 2 October 2000, prohibits direct and indirect discrimination against employees by their employers or representatives on the same grounds as those listed in the Human Rights Act (HRA) of 1993 and provides for a personal grievances procedure. The Act also provides protection and remedies in respect to sexual and racial harassment. Employees concerned have the choice of whether to lodge a complaint under the Human Rights Act or to pursue a personal grievance under the ERA. The Committee asks the Government to provide information in its future reports on the practical application of the ERA in respect to non-discrimination and equality, including indications as to the number and nature of personal grievances pursued and their results.

3. With reference to its previous comments encouraging the Government to include the ground of political opinion as a proscribed ground of discrimination, the Committee recalls that the Human Rights Amendment Act 1999 deferred the expiry of section 151 which provided for a temporary exemption for government compliance with the prohibition of discrimination on a number of grounds, including political opinion, to 31 December 2001. It notes with satisfaction that section 151 has now expired and that the prohibition of discrimination in employment on the basis of political opinion and the other grounds listed in section 22 of the HRA, as amended by the Human Rights Amendment Act 2001, now also applies to government employment. Noting from the Government’s report that the State Services Commission and the Ministry of Justice were considering what exemptions, if any, would apply to employment discrimination in the public sector concerning political neutrality of public servants, the Committee asks the Government to provide information on any legislative, administrative or other measures taken in this regard. It also requests the Government to provide information on the practical application of the non-discrimination provisions of the Human Rights Act, in respect to the public and the private sector, including on the number, nature and results of cases brought under the Act.

4. The Committee trusts that the Government will supply the report on the "Compliance 2001" process that specifies the recommendations made by the Human Rights Commission in accordance with section 5(1)(k) of the Human Rights Act 1993. In this regard, the Committee notes the NZCTU’s request to be consulted by the Human Rights Commission in drafting the National Plan of Action that will be developed in the context of the "Compliance 2001" effort, in order to identify and target significant areas of discrimination. It is the NZCTU’s understanding that such a plan is not solely the Commission’s responsibility but is a consultative and collaborative exercise. The Committee asks the Government to indicate if measures have been taken to obtain the cooperation of workers’ and employers’ organizations for such an exercise. Moreover, noting that both NZCTU and Business NZ are represented in the EEO Advisory Group that advises the Government on the strategies to achieve the EEO Vision, the Committee hopes the Government will continue to provide information on the activities undertaken in cooperation with the workers’ and employers’ organizations to promote greater equality in the labour market.

5. The Committee notes that the NZCTU expresses concern for the fact that trade union membership or activity is not a prohibited ground of discrimination under the Human Rights Act 1993 and it is also excluded from the Employment Relations Act 2000. It reports that the Human Rights Commission had supported extending the prohibited grounds to include trade union membership and activity. The Committee also notes the Government’s reply to NZCTU that states that Part 3 of the Employment Relations Act covers discrimination on the ground of trade union membership through the provisions that regulate freedom of association. In particular, section 7(b) prescribes that "no person may, in relation to employment issues, confer any preference or apply any undue influence, directly or indirectly, on another person because the other person is or is not a member of a union".

6. Further to its previous observations, the Committee notes with interest the data provided in the Government’s report on the presence of Equal Employment Opportunities (EEO) provisions in collective employment contracts and agreements. The information collected by the Government covers 21 per cent of the labour force, and shows that 17 per cent of the contracts contain EEO provisions and 2 per cent contain explicit provisions relating to Maori. The Committee also notes the EEO Trust Diversity Survey 2000 showing that in the private sector 76 per cent of the employees on both individual and collective employment agreements in the year 2000 are covered by an EEO Policy, 17 per cent by an EEO Plan, and 21 per cent by both. The Committee asks the Government to continue to supply statistical data on the progress achieved in including EEO provisions in contracts and agreements, both in the public and private sectors, and on the impact this policy has had for those workers covered, in respect of achieving equal treatment in access to jobs and in their terms and conditions of employment.

7. The Committee notes the NZCTU’s comments that underline the importance of establishing an Employment Equity Commissioner within the Human Rights Commission, as also stated in Recommendation No. 14 of the tripartite EEO Advisory Group’s report. The Commissioner would improve coordination of EEO legislation and programmes across both the public and private sectors. It would be charged to develop a EEO minimum code (which brings together all existing EEO-related legislation) and a voluntary EEO code of practice. The Committee requests the Government to indicate the steps it envisages taking in order to give effect to the recommendations of the EEO Advisory Group. Further on EEO policies, the Committee notes the comments of Business NZ that express concern about EEO policies that may prevent employment decisions based on individual merit. It also notes the Government’s report that states that EEO policies are to promote proactive and positive measures to ensure that all employment decisions are made on the basis of individual merit, overcoming barriers and discriminatory attitudes and behaviour. The Committee hopes that the Government and the workers’ and employers’ organizations will continue to work together so that employment decisions will be made on the basis of unbiased assessment of individual merit, overcoming discriminatory direct and indirect practices.

8. The Committee notes with interest tables 4 and 7 in the Government’s report on gender and ethnic pay gaps by occupations, and the comments of both NZTCU and Business NZ on this issue. The Committee notes that there is a substantial agreement that a significant component of the gender and ethnic earnings gap is given by professional segregation, with women and Maori and Pacific Island populations still distributed mainly towards lower paid occupations both in the public service and in the private sector. In this regard, the Committee also notes the CERD’s concluding observations of 23 August 2002 that express concerns on the continuing disadvantages that Maori, Pacific people and other ethnic communities face in the enjoyment of social and economic rights, such as the right to employment and social welfare (paragraph 11). The Committee requests the Government to continue to provide information on the initiatives taken to promote equality in the labour market for these more vulnerable groups, and in particular to supply information on the activities of the National Advisory Council on the employment of women, on the pay equity project of the Ministry of Women’s Affairs, on the project to assist Maori women in self-employment, on the activities of the Ministry of Maori Development and the Ministry of Pacific Island Affairs, and Skill New Zealand.