Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

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

1. Referring to its observation, the Committee notes that, according to the Government's report, the Human Rights Act, 1993 does not specify "social origin" as one of the prohibited grounds of discrimination for the reason that the other existing grounds, such as family status and employment status, are considered as providing sufficient protection for persons who believe they have been discriminated against on the grounds of social origin. In addition, the Government indicates that, although the ground of social origin is also omitted as one of the prohibited grounds of discrimination under the Employment Contracts Act, 1990, it is likely that that Act would similarly provide sufficient protection against this form of discrimination. While acknowledging that discrimination on the grounds of social origin will often manifest itself as prejudice which would invoke one or more of the grounds stated in the Human Rights Act (or in the Employment Contracts Act), the Committee requests the Government to indicate the broad lines of any policies and programmes aimed at facilitating social mobility.

2. In its comments, the New Zealand Council of Trade Unions (NZCTU) refers to a recent report by the National Advisory Council on the Employment of Women, which is said to have identified serious concerns about the ability of the present training structure to improve women's access to equality of opportunity in employment. The Committee would be grateful if the Government would furnish a copy of this report and provide information on any measures being taken in pursuance of its findings.

3. The Committee notes the comments of the NZCTU concerning the exceptions in the Human Rights Act relating to discrimination against workers with disabilities, which are said to undermine significantly any scope for the relevant agencies to secure equality of opportunity for such workers and to ensure only minimal compliance obligations. The Committee notes that section 29(1)(a) of the Act provides that differential treatment based on disability is not unlawful where the person could perform the duties of the position satisfactorily only with the aid of special services or facilities and "it is not reasonable to expect the employer to provide those services or facilities". The Committee requests the Government to provide information on the practical effect of section 29 of the Human Rights Act, including any documents designed to guide employers in this respect.

4. The Committee also notes the comments of the NZCTU and of the Government concerning the Disabled Persons Employment Protection Act, 1960. According to the Government, the Act gives incentives to community organizations to provide sheltered work and other vocational services for people with disabilities and enables community funding organizations which operate sheltered workshops to obtain blanket exemptions from various industrial and employment laws applying to disabled employees (e.g. statutes governing minimum wages, holidays and, previously, industrial awards and agreements). The Committee requests the Government to provide more information on the promotion of equality in employment for disabled workers, including an indication of the number of persons so employed, the work undertaken, the prospects for those employees to receive training or employment elsewhere (through the Vocational Opportunities Support Programme or other programmes) and on the supervision of these workshops by the Department of Social Welfare.

5. The Committee notes the information provided by the Government concerning the Parental Leave and Employment Act, 1987, which requires employers to keep open the jobs of employees who have taken up to 52 weeks of unpaid leave to care for young children, except when the position is considered to be a key position that cannot be filled by a temporary employee. The NZCTU states that the procedures of the Act are such that decisions must be made so far in advance that many people are denied the full benefit of their rights. In addition, it states that an employer is able to allege that an employee's position is a "key" one, once the leave has commenced. The Committee notes the Government's statement that section 68 of the Act provides that employees may still have access to the entitlement contained in the Act, even if they do not follow the formal procedures required. Moreover, the Government states that no employer has yet argued successfully before the Employment Tribunal that an employee's position is a "key" one that cannot be kept open for the duration of the parental leave. In this regard, the Committee takes note of a 1993 decision of the Employment Tribunal, furnished by the Government, which found that parental leave could not be declined on the key position basis. The Committee requests the Government to provide a copy of the above-mentioned Act and to continue to provide information on its practical application.

6. The Committee notes with interest the decisions furnished by the Government concerning sexual harassment cases brought under the personal grievance procedures of the Employment Contracts Act. It would be grateful if the Government would continue to provide such information in future reports.