Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations by the New Zealand Council of Trade Unions (NZCTU) and Business New Zealand (Business NZ), submitted by the Government with its report.

Articles 1(1)(b) and 2 of the Convention. Persons with disabilities. The Committee notes the information provided by the Government on the broad range of measures adopted in favour of persons with disabilities, including support funds directed at assisting persons with disabilities to access training, employment and self-employment by financing job coaching, workplace modifications, equipment, sign language interpreters, support persons, transport costs and wage subsidies. The Committee also notes the new Disability Strategy 2016–26 and the New Zealand Disability Action Plan 2014–18 which maintains a special focus on enhancing education and employment opportunities for women with disabilities. It notes in particular that, under the Disability Action Plan, a Health and Disability Long-term Work Programme (2014–18) was created with the objective of increasing employment and economic opportunities for all people with disabilities and people with a health condition living in New Zealand. The Committee, however, notes the NZCTU’s observation that only 45 per cent of people with disabilities are in the labour force compared to 77 per cent of people without disabilities. The NZCTU also points out that specific statistical information on the labour situation of persons with disabilities is lacking. With regard to the impact of Minimum Wage Exemption Permits (MWEPs) on the protection of the rights of workers with disabilities in relation to minimum wages, the Government indicates that it is exploring alternatives to the use of the MWEPs through a reference group encompassing representatives from across the disability sector. It also notes that the new Disability Strategy sets out to identify better alternatives so that the minimum wage exemption process can be removed. The Committee also notes Business NZ’s observation that the general closing down of sheltered workshops, following the introduction of MWEPs, left many people with disabilities without any acceptable form of alternative activity, and that the priority should not merely be to increase the number of persons with disabilities in paid employment and self-employment, but also to find options for those who are not able to access employment or self-employment. The Committee notes the information provided by the Government in its reply concerning, among other things, community participation services that support disabled people and people with health conditions to participate in and be socially included in their communities. The Committee asks the Government to provide information on the results achieved by the various measures adopted, including under the New Zealand Disability Action Plan 2014–18, to improve the employment situation of men and women with disabilities, and encourages it to collect statistical information on the access of persons with disabilities to education, training, employment and occupation, disaggregated by sex, with a view to monitoring progress over time. It is also requested to provide information on the implementation of the new Disability Strategy 2016–26. The Committee further asks the Government to provide information on the progress made with regard to the identification of alternative options to MWEPs.

Articles 2 and 3. Promoting equality with respect to race, colour and national extraction. The Committee welcomes the information provided by the Government on the measures and programmes adopted with a view to promoting access to employment for migrants. It notes, in particular, that the New Zealand Migrant Settlement and Integration Strategy, adopted in 2014, encompasses employment, education and training as specific outcome areas with dedicated success indicators. The Committee also notes that the baseline study conducted in 2015 found that, in 2014, 84 per cent of the employed principal applicants and 61 per cent of employed secondary applicants reported that their occupation matched their skills and qualifications, and the employment rate for recent migrants was similar to that of the New Zealand-born population. The study, however, also indicated that in 2015, 18 per cent of recent migrants reported that they had experienced discrimination. In this regard, the NZCTU observes that there is a need for additional measures to address the exploitation of migrant workers, including an increase in the number of labour inspectors, particularly in areas where there is a high prevalence of migrant workers. The Committee notes in this regard the adoption of the Migrant Exploitation Prevention Strategy, which is aimed at supporting exploited employees, holding exploitative employers to account, and helping migrant employees and their employers understand and act on their rights and obligations. The Government further indicates that the Human Rights Commission is developing a social media campaign – Tackling Casual Racism – with a view to raising awareness and building acceptance of New Zealand’s increasing diversity, including at the workplace. With reference to the recognition of overseas qualifications, the Committee notes the Government’s indication that, while the issue falls within the responsibilities of the regulator of each occupation, the Government is encouraging regulators to be mindful of the need to facilitate the international flow of people. The Committee asks the Government to provide information on the implementation of the Migrant Settlement and Integration Strategy, as well as the other measures and programmes targeting migrants, and their impact in promoting equality of opportunity and treatment for migrant men and women. The Committee also asks the Government to provide information on any complaints made by migrant workers to, and handled by, the competent authorities relating to discrimination based on the grounds set out in the Convention, and particularly race, colour or national extraction. The Committee further asks the Government to provide information on any developments concerning the recognition of overseas qualifications.

Achieving equality in the public service. The Committee notes the Government’s indication that women’s overall representation in the public service remained stable between 2005 and 2015 at approximately 60 per cent, compared to 47 per cent of women in the total national workforce. The Government also indicates that the number of women chief executives increased from 16.1 per cent in 2010, to 41 per cent in 2015. Data further show that women occupied 44.2 per cent of senior leadership positions in the public service (the top three tiers of management) as of 30 June 2015. However, the NZCTU indicates in this regard that, as roles become more senior, women’s representation falls: eight out of 29 chief executive positions in the public sector were held by women, whereas in the tier below, women held 81 out of 181 positions. Regarding the ethnic composition of the public service, the Government indicates that it broadly reflects that of the New Zealand working-age population, with the European group representing 70.6 per cent of the staff in 2015. On the other hand, according to the 2015 Human Resource Capability report, 11.1 per cent of the senior leadership cohort identifies as Maori, 2.6 per cent identifies as Pacific people, and 2.1 per cent as Asian, which is lower than the groups’ representation across the public service, although the Government indicates that the representation of each of these groups is moving upwards. The Committee notes that no specific information is provided on the implementation in practice of the “Equality and Diversity: New Zealand Public Service Equal Employment Opportunities Policy” issued under section 6 of the State Sector Act 1988 with a view to promoting, developing and monitoring equal employment opportunities within the public service. The Committee asks the Government to provide information on the specific measures adopted or envisaged under the Equality and Diversity Policy with a view to promoting equal opportunities in the public service and their impact, including in reducing vertical occupational segregation based on ethnicity and gender. It is also requested to continue providing information, including statistics, on the progress made in improving equal employment opportunities for women, Maori, Pacific Island people and Asians in the public service.

Equality of opportunity and treatment for men and women. The Committee notes that in 2015 a working group made up of government and union representatives developed a “standard policy for the prevention and response to sexual harassment in the public service” and that, starting from 2016, the Government was expected to collect data on the number of sexual harassment complaints as part of the annual Human Resource Capability Survey. The Committee also notes that, following the adoption of the Parental Leave and Employment Protection Amendment Act, 2016, paid parental leave has been extended to 18 weeks and is now applicable also to seasonal, casual and fixed term workers, and those who have recently changed jobs. The Act also provides for additional weeks of paid parental leave in favour of parents of pre term babies and extends eligibility to entitlements to a wider range of primary carers, not only biological or formal adoptive parents. The Committee notes the NZCTU’s recommendation that an evaluation should be undertaken on whether the Act is being enforced in the case of casual and seasonal workers. In the NZCTU’s view there is still a lack of flexible working arrangements which could effectively support the balancing of work and family caring responsibilities, with repercussions particularly for women. The NZCTU further observes that women remain over-represented in minimum wage occupations, particularly in industries such as service and aged care, and are more likely than men to be in low paid, casual and part-time work, with young Maori and Pacific Island women being particularly marginalized. The Committee asks the Government to provide information on the application of the standard policy for the prevention and response to sexual harassment in the public service and the number and outcome of sexual harassment complaints registered at the workplace, as well as information on any measures adopted or envisaged with a view to preventing and addressing sexual harassment in the private sector. The Committee also asks the Government to provide information on the application in practice of the Parental Leave and Employment Protection Amendment Act 2016, and on any other measures adopted to promote the reconciliation of family and work obligations, including in respect of workers in non-standard forms of employment. It is also requested to provide information on the measures adopted to promote equality of opportunity and treatment in employment and occupation for men and women and the results achieved, particularly with regard to Maori and Pacific Island women, including statistical information.

Collective agreements and workplace initiatives. The Committee notes the Government’s indication that no information is available on the progress made in including equal employment opportunities (EEO) provisions for Maori and other ethnic minorities in workplace policies in the private sector and in collective agreements, or the results achieved. The Committee notes in this regard that, according to the NZCTU, no evaluation has been undertaken to date on whether and how employment agreements or employment practices inhibit or foster equality of opportunity for Maori and other ethnic minorities in employment. The Committee encourages the Government to undertake an assessment of the rates of inclusion of EEO provisions concerning Maori and other ethnic minorities in workplace policies in the private sector and in collective agreements, and the results achieved in improving equality of opportunity and treatment in employment in the private sector, and to provide information in this respect.

Enforcement. The Committee notes the information provided by the Government on several judicial decisions addressing discrimination on various grounds, including gender, age and disability. The Committee also notes the various cases initiated by the labour inspectorate concerning migrant workers. The Government further indicates that in 2015, 37 cases of discrimination were referred to mediation and 16 were submitted for determination by the Employment Relations Authority. The Committee notes that no information is provided on relevant cases dealt with by the Human Rights Review Tribunal, although it notes that overall 72 active cases were pending before the Tribunal in 2015. It notes the Government’s indication that this information will be provided with the next report. Regarding the impact of section 67A of the Employment Relations Act which provides for the possibility of a 90-day probation period for new employees in undertakings with fewer than 20 employees, the Committee notes the NZCTU’s reference to the outcome of recent research, according to which the 90-day trial employment periods have not improved the employment of disadvantaged workers. In Business NZ’s view, however, by allowing employers to test workers’ suitability for the particular job, trial periods serve as a useful anti-discrimination tool. The Committee asks the Government to continue providing information on cases concerning discrimination dealt with by the courts, and particularly cases which are filed by employees on or at the end of a 90-day probation period. It is also requested to provide information on any further research undertaken regarding the use of probation periods and their impact on workers, in particular migrant workers, leading to discrimination on the grounds of race, colour or national extraction.