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

Equal Remuneration Convention, 1951 (No. 100) - New Zealand (Ratification: 1983)

The Committee notes the information provided by the Government in its report and the comments made by the New Zealand Council of Trade Unions and the New Zealand Employers' Federation.

1. In its previous comments under Conventions Nos. 100 and 111, the Committee noted that a review of existing measures to eliminate discrimination, which focused in particular on the Equal Pay Act, 1972, and the Human Rights Commission Act, 1977, resulted in the enactment of the Employment Equity Act in August, 1990. This legislation had, however, been repealed in December 1990, shortly after coming into force because, as is reiterated in the last report, the present Government rejects its requirements for private sector employers to comply with mandatory equal employment opportunity programmes and opposes the centralised system of wage adjustment that would have been instituted through the pay equity procedures provided for in the legislation.

The Committee notes the enactment of the Employment Contracts Act, 1991 (Act No. 22 of 1991) which, according to the Government, reflects its policy that the determination of rates of remuneration is the sole responsibility of the parties to the employment contract. The Government further states that it is no longer involved in the wage-fixing process, its role with respect to Convention No. 100 being to promote the principle of equal remuneration in both collective and individual employment contracts.

The Committee has taken due note of the provisions of this Act, and of the amendments made to the Equal Pay Act 1972, by the Equal Pay Amendment Act, 1991. This amendment has inserted into the Equal Pay Act the equivalent of section 15(1)(b) of the Human Rights Commission Act, 1977 (under which it is unlawful for employers to refuse or omit to offer or afford any person the same terms of employment, conditions of work, fringe benefits, and opportunities for training, promotion and transfer as are made available for persons of the same or substantially similar qualifications employed in the same or substantially similar circumstances on work of that description by reason of the sex of that person). Thus, the Equal Pay Act applies to employers who employ staff in the same workplace, whether on the basis of individual or collective contracts. An amendment to the Human Rights Commission Act enables individuals to make an equal pay claim either under that Act or the Equal Pay Act.

2. The Committee must clarify the scope of the obligation imposed on a ratifying State either to ensure or to promote the application of the principle of the Convention. The Committee points out that under Article 2.1 of the Convention, a ratifying government's obligation to ensure implementation of the principle is limited to those areas where the government is in a position to exert direct or indirect influence on the wage-fixing process; in all other cases, the government must promote the application of the Convention. While the Convention does not require that legislation be enacted, legislative action does, however, extend the government's competence to intervene in the field of wages and hence widen the scope for ensuring application of the principle, at least to the extent of the intervention. In the present case, the Government is obliged, by virtue of the provisions of the Equal Pay Act, 1972, and of the Human Rights Commission Act, 1977, to ensure that the provisions of those texts are complied with in all employment contracts concluded pursuant to the Employment Contracts Act, 1991. The Committee therefore requests the Government to supply information on the measures being taken to ensure the implementation of these Acts, more particularly in respect of individual employment contracts concluded pursuant to the Employment Contracts Act, 1991.

3. The Committee has also noted the comments of the New Zealand Council of Trade Unions concerning the permissible scope of comparison for the purpose of determining equal pay. The Council states that comparisons can be made only between workers employed by the same employer, whereas before the enactment of the Employment Contracts Act, it was possible, through the registration of agreements, to ensure that wage parity was applicable to all workers within the occupation or industry covered by the agreement. Of greater significance, states the Council, is the complete lack of any mechanism for ensuring that an occupation or skill which is performed largely by women workers is paid at comparable rates to those paid to workers in a comparable occupation or skill performed largely by males.

While acknowledging the difficulty in determining how broadly comparisons between the jobs performed by men and women should be permitted, the Committee observes that adequate possibilities for comparison must be available if the principle of equal pay for work of equal value is to have any application in a sex-segregated labour market. In order to ensure implementation of the principle in an occupation or industry employing mostly women, it is essential that there be a basis of comparison outside the limits of the establishment or enterprise concerned. The Committee requests the Government to provide information in its next report on the measures taken or contemplated to ensure the application of the principle of equal remuneration for work of equal value in respect of those women workers in the private sector who find their possibilities for comparison insufficient in their particular workplaces.

Recalling, moreover, that the Government Service Equal Pay Act, 1960, provides for the possibility of making comparisons with scales of pay in other sections of employment when women government employees perform work of a kind which is exclusively or principally performed by women (section 3(1)(b)), the Committee requests the Government to provide information concerning the use, in practice, of that provision.

4. The Committee has noted with interest the information provided by the Government on the measures taken to promote equal remuneration (outlined in the Government's response to the Recommendations of the Working Party on Equity in Employment, January 1991). Particular note has been taken of the publication and wide distribution of the manual, "Equity at Work; An Approach to Gender Neutral Job Evaluation" (State Services Commission, July 1991) which was developed to overcome gender bias in traditional job evaluation systems. The Committee has also noted that an Equal Employment Opportunities Trust will be established by the Government with private sector employers to promote equality. Significant funding has also been committed by the Government to promoting equality in the private sector.

The Committee hopes that the Government will supply further details on the promotional activities undertaken, including those of the Equal Employment Opportunities Trust, and requests the Government to continue to provide information concerning the impact of all of the above-mentioned initiatives on the application of the Convention.

5. The Committee has noted the statistical data provided by the Government which indicates that women's average hourly earnings are about 80-81 per cent of those of men. In this regard, the Committee notes the comment of the New Zealand Employers' Federation to the effect that the differential between female and male wages is an earnings gap which may be accounted for by many factors other than an alleged disparity in rates of pay, such as age, length of service, education and training, incidence of part-time employment and, in particular, the tendency for women - notably married women or women with partners - to take time out of the paid workforce for family responsibilities. In considering the difficulties experienced by member States in reducing the wage differential, the Committee has stressed that real progress is possible only when action to implement the Convention is taken within the broader context of measures to promote equality between women and men generally. The Committee hopes that some of the constraints to reductions in the wage differential, such as education, training, and women's family responsibilities, will be addressed in the context of the measures being taken to promote equality in general.