Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

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

1. Further to its previous observation, the Committee notes the detailed information provided by the Government in its report. The Committee has also noted the comments of the New Zealand Council of Trade Unions (NZCTU) and of the New Zealand Employers' Federation (NZEF) and the Government's replies thereto. The Committee will consider, at its next session, the information provided in the report and by the NZCTU relating to equal pay between men and women in the context of the Government's application of Convention No. 100.

2. The Committee notes with interest the measures being taken by the Government to promote equality in the public sector, including the recent development of a policy on equal employment opportunity (EEO) in the public service up to the year 2010, which provides a framework for implementing EEO and establishes expected standards and outcomes for departments to achieve. In regard to a concern raised previously by the NZCTU -- the enforcement of the good employer provisions of the State Sector Act, 1988 (personnel policies for fair and proper treatment of public employees) -- the Committee notes that the Employment Tribunal has the power to order compliance with these provisions and that employees may be able to bring an action of breach of contract against the employer, as most public service employment contracts contain provisions which require the employer to be a "good employer" and follow EEO principles. In this regard, the Committee notes that, according to the NZEF, the courts and, in particular, the Court of Appeal, have not hesitated, since at least 1985, to read the good employer principle into the employer/employee relationship, where applicable. The NZEF states that an "implied principle" (that is, one that is applied through court decisions) can carry much weight in a common law system and can result in the provision of an equally appropriate remedy as a principle which is given statutory form.

3. In previous comments, the NZCTU had expressed concern over the fact that, as a number of grounds of discrimination proscribed by the Human Rights Act, 1993, are not contained in section 28 of the Employment Contract Act, 1991, the opportunities for employees to seek redress on those grounds could be limited. The Committee had noted, however, that the Employment Tribunal had held 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 unjustified disadvantage (Pooley v. New Zealand Society for the Intellectually Handicapped, AT 102/95). In order to assess the extent to which claims of discrimination are, in practice, being pursued, the Committee asked the Government to provide information on any further cases pertinent to the Convention. In its report, the Government refers to a decision of 7 May 1997 by the Human Rights Complaints Review Tribunal (Commissioner v. Transportation Auckland Ltd., CRT 14/96), which found there had been discrimination on the ground of political opinion in the case where an employee (a union delegate and member of the Communist Party) had been warned that his distribution of certain leaflets was detrimental to the interests of the company and could lead to dismissal for breach of contract. The Committee asks the Government to continue to provide information of this nature in its future reports.

4. In its present comments, the NZCTU states that the requirement for employers to be equal opportunity employers is exclusive to employment contracts in the public sector: there is no mandatory obligation for private sector employers to include EEO provisions in employment contracts, and very few contracts contain such provisions because many workers on individual contracts lack sufficient bargaining power to negotiate them. The Government indicates that a range of measures are taken to address the complex social factors regarding EEO and that two initiatives -- the EEO Trust and the EEO Contestable Fund (to which the Committee has referred previously) -- aim specifically at changing employer behaviour. The NZEF also describes a number of efforts undertaken to promote the concept of EEO in the private sector. Referring to the EEO Trust and the Contestable Fund, the NZCTU states that these measures are a token response to the promotion of employment equity, that they are more concerned with processes than results and work with employers, rather than in a tripartite manner. The Government states that employee organizations are not excluded from access to funding under these initiatives. While noting that some indication is provided in the report concerning the extent to which EEO provisions are contained in collective employment contracts covering 20 or more employees, the Committee requests the Government to provide an assessment, even in general terms, of the extent to which individual employment contracts in the private sector contain such provisions. The Committee also asks the Government to continue to provide information to demonstrate the extent to which equal opportunity and treatment in employment is being enjoyed by women and ethnic communities (particularly Maori and Pacific Island people) in the labour market.

5. In this connection, the Committee notes from the statistics in the Government's report, some positive indications, including that women's participation in employment increased by 17 per cent between 1991 and 1997 and that females increased their participation rate in the legislators, administrators and managers category by 6.5 per cent in the 12 months to March 1997. However, it also notes the information provided by the NZCTU indicating that women comprise the majority of workers employed in low-paid, part-time or casual jobs. While acknowledging that many complex, interrelated factors beyond the strict scope of the Convention also play a part in determining progress in this area, the Committee recalls the importance of a general context of equality, as highlighted in paragraph 305 of its 1996 Special Survey on equality in employment and occupation. It trusts that the Government, in cooperation with the NZCTU and the NZEF, will remain attached to its avowed commitment to promote greater equality in the labour market by taking a comprehensive approach to the matter.