Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

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

Further to its previous observation, the Committee notes with interest the detailed report and annexed documents provided by the Government on the measures taken to apply the Convention. The Committee has also noted the comments of the New Zealand Employers' Federation (NZEF) and of the New Zealand Council of Trade Unions (NZCTU).

1. Legislation. In its previous comment, the Committee noted that the 1993 Human Rights Act exempts the Government from the prohibition on discrimination on the grounds of disability, age, political opinion, employment status, family status or sexual orientation until 1 January 2000 (sections 151 and 152 of the Act). The Government states that it has embarked upon a coordinated process of consultation with a wide range of government departments and agencies, to address the potential impact of the Act's new grounds of prohibited discrimination in the areas concerned; and that close consultation is being maintained with the Human Rights Commission, which must determine before December 1998 whether legislation, government policies and administrative practices conflict with the Act or infringe its spirit or intention. The Government also sets out the different legislation presently protecting public employees, which contain "good employer" (a personnel policy for fair and proper treatment of employees in all aspects of their employment) provisions, including the obligation to develop and implement equal employment opportunities (EEO) programmes. The NZCTU states that these provisions do not provide for an individual right and remedy, that there is little enforcement of or accountability in respect of these obligations, and that no sanctions are administered for failure to comply. Commenting on the annual report of the State Services Commission on EEO progress up to June 1994, the NZCTU states that there is an overall lack of serious commitment to the implementation of EEO. The Government indicates that the monitoring process is being revised currently to improve various aspects, including the length of the evaluation process. The Committee requests the Government to provide copies of the 1995 annual report and to indicate whether, in addition to the monitoring and reporting functions described in the Government's previous report, the EEO team of the State Services Commission also proposes to government departments any specific action that might be taken to improve the implementation of their EEO strategies. The Committee has noted, in this regard, that the annual reports for 1993 and for 1994, supplied by the Government, disclose a static or deteriorating employment situation for some groups of employees (for example, an increasing gender wage gap; and lower representation of persons with disabilities and to some extent of ethnic groups).

2. In its previous comment, the Committee drew attention to the fact that the exemption under section 151 of the Human Rights Act encompasses the ground of political opinion, which is one of the prohibited grounds of discrimination specified expressly in the Convention, and requested information on the protection and avenues of redress afforded to persons who consider themselves discriminated against on this ground by measures taken by or on behalf of the Government until the year 2000. The Government refers to the 1990 Public Service Code of Conduct, developed under the State Sector Act, 1988, which requires certain standards of behaviour for public servants, of which political neutrality is an integral part. The Government states that, in practice, political neutrality covers public or individual comment which is openly supportive or critical of Government policy, private communications with Ministers and members of Parliament, political participation and the release of official information. The Government further states that the relevant provisions of the Human Rights Act must be balanced by the requirement for political neutrality, in accordance with the above-mentioned Code. Having noted the principles contained in the Code, the Committee requests the Government to indicate whether, in practice, complaints about discrimination on the ground of political opinion have been made either by persons applying for entry into the public service or from established employees.

3. In its previous comments, the NZCTU expressed concern over the fact that a number of the grounds of discrimination proscribed by the Human Rights Act are not contained in the Employment Contracts Act, 1991, although it acknowledged that complaints based on those omitted grounds might succeed under the "unjustified action" head of the personal grievance procedure provided for in the Employment Contracts Act. The NZCTU reiterates its concern over the lack of generally applicable legislation that actively promotes equality of opportunity. The Committee notes that the Employment Tribunal has held subsequently that, while its jurisdiction in relation to complaints of discrimination is confined to the grounds set out in the Employment Contracts Act, it can hear evidence of discrimination on other grounds, in support of a claim of unjustifiable dismissal or of unjustifiable disadvantage (Pooley v. New Zealand Society for the Intellectually Handicapped, AT 102/95). The NZCTU states that it remains concerned over the uncertainty of this situation which may deter many from seeking redress. The Committee hopes that the Government will continue to provide information on the outcome of any cases pertinent to the Convention that might occur in the future.

4. Enforcement and promotion. The Government provides detailed information about the efforts being undertaken to enforce and promote equal employment opportunities. In respect of these, the NZCTU states that, although the Government has referred to some 49 different labour market interventions as promoting equality, most of these programmes are not aimed specifically at improving equality for disadvantaged groups. The NZCTU adds that 16 of these interventions are based on the presumption that the barriers to equal opportunity and participation are due to an individual's lack of skills, experience, training, qualifications, motivation or confidence. The NZCTU also reiterates its previous comments concerning the level of funding for, and the effectiveness of, both the Joint Equal Employment Opportunities Trust and the Equal Employment Opportunities Contestable Fund. The Committee requests the Government to indicate whether it is considering increasing the resources of the Fund to meet the needs.

5. As concerns the NZCTU's previously expressed concern over the lack of success in negotiating EEO provisions into collective employment contracts, the Government states that, as of June 1995, 40.1 per cent of employees on the Department of Labour's database were covered by collective contracts containing EEO provisions and 53 per cent of these contracts were from the private sector. The Committee welcomes this development and hopes that the Government will continue to provide similar information in its future reports.

6. Among the new initiatives reported by the Government, the Committee notes with interest the proposals of the Prime Ministerial Task Force on Employment (which included representatives of the NZCTU and the NZEF), published in November 1994. In June 1995, these proposals were considered by representatives of the major political parties (in the Multi-Party Group). The Committee notes that the proposals include commitments to developing a strategy to eliminate Maori disadvantages in the labour market and to expanding the strategy which tailors assistance measures to the individual requirements of jobseekers, a measure specifically targeted at Maori, Pacific Island peoples, women and persons with disabilities.The Committee hopes that the Government will provide information on the implementation of those proposals which are relevant to the application of the Convention.

7. Further to its previous direct request regarding discrimination against workers with disabilities, the Committee notes that the Disabled Persons Employment Protection Act, 1960, is currently under review. According to the Government, a working group is developing a consultation document which will be discussed with interested organizations, including the NZCTU and the NZEF. The Committee is pleased to note that the NZCTU's concern that measures be taken to integrate disabled persons into mainstream employment appears to be shared by the Government. The Committee asks the Government to indicate the outcome of this consultation. The Committee also notes the information concerning measures to promote employment for persons with disabilities, including the number of placements made by the New Zealand Employment Service. As concerns the NZCTU's previous comment on the lack of statistical data on people with disabilities in employment, the Government states that Statistics New Zealand is currently planning a nationwide survey on people with disabilities. The Government also refers to the Health and Disability Commissioner Act, 1994, and to the Code of Consumer Rights being developed by the Commissioner, which will include services to facilitate and support workers with disabilities in employment. The Committee asks that such information continue to be provided in future reports.

8. The Committee notes from statistics provided by the Government that all groups except Maori women have experienced decreased rates of unemployment since the last reporting period. The Government also notes that males continue to be over-represented in certain industries (for example, agriculture, manufacturing, building and construction) and as legislators, administrators and managers. The NZCTU states that the long-term trend towards equal employment status for women has been frozen and that the level of women's participation in the labour market lags behind that of men by 20 percentage points and has remained static for eight years. On this question, the NZEF states that the term "over-representation" suggests that the difference has a deliberate element, whereas employers often experience a lack both of women applicants and of suitably qualified women applicants for work in non-typical areas of employment. The NZEF adds that women are not so much denied employment in non-typical areas as they choose to work in other areas where they are qualified or prefer to work, a state of affairs which also prevails in very many other countries. The Government acknowledges that women's employment participation continues to be an issue in the country, as elsewhere, and considers that state initiatives are only one part of a complex array of variables which influence the situation. The Government, however, maintains its commitment to implementing policies to promote greater equality in employment for women, Maori, Pacific Island people and other disadvantaged groups in the labour market.

9. As concerns the effectiveness of its programmes to promote equality, the Government states that ongoing monitoring and evaluation are standard features of publicly funded initiatives. While recognizing that particular groups continue to be significantly disadvantaged, the Government states that it continues actively to explore ways of addressing these issues. The Committee appreciates the Government's commitment to promoting equality in employment for disadvantaged groups. It asks the Government to continue to report on the results of its monitoring and evaluation of programmes and hopes that the experience of the social partners will be taken into account in these activities. On this question, the Committee notes from the report that tripartite consultation was emphasized in relation to the Prime Ministerial Task Force on Employment and in some other programmes and projects. This is important in relation to the NZCTU's comments concerning the marginalization of unions in relation to the promotion of equality. The Committee trusts that the social partners will continue to explore ways of enhancing their consultation and collaboration to further the implementation of the Convention.