Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

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

1. The Committee notes the detailed information provided by the Government in its report and the attached documentation. It also notes the comments submitted by the New Zealand Employers' Federation (NZEF) and the New Zealand Council of Trade Unions (NZCTU) and the Government's reply.

2. The Committee notes with interest the Government's statement that, as of 1 February 1999, section 21(1)(ii) of the Human Rights Act of 1993 came into effect, abolishing compulsory retirement and prohibiting, with some exemptions, discrimination against employees and job applicants on the basis of age. It further notes the adoption of the Human Rights Amendment Act of 1999 (which entered into force on 1 October 1999), and in particular that section 152 defers the expiry date of section 151 (which provided temporary exemption for government compliance with the prohibition of discrimination on a number of grounds, including political opinion) to 31 December 2001. The Act further requires, in consultation with the Human Rights Commission, the submission of six-monthly ministerial reports on the progress made by or on behalf of the Government in remedying significant inconsistencies between any legislation and the Act of 1993. The Committee notes, however, that the 1999 Act exempts section 151 from being subject to such an assessment. The NZCTU expresses its concern about the extension of this expiry date as well as the Government's decision in 1997 to consider conflicts as legislation arose. The Government replies that, due to the extensiveness of the "Consistency 2000 Project" (carried out by the Human Rights Commission, pursuant to section 5(1)(i) to (k) of the Human Rights Act of 1993, to examine inconsistencies between the new grounds of discrimination in Part II of the Act and the existing legislation, and policies and administrative practices of the Government), an extension of the deadline for compliance was necessary to deal with issues arising from inconsistencies found. Further, according to the Government, a number of mechanisms have been put into place to continue the process of review, including consideration of conflicts with the Human Rights Act as legislation comes up for review as well as mechanisms to ensure that existing regulations are assessed for consistency. While noting the mechanisms instituted by the Government, the Committee recalls that it has, for some years, been encouraging the Government to include the ground of political opinion as a proscribed ground of discrimination. It draws the attention of the Government once again to paragraph 60 of the 1988 General Survey on equality of employment and occupation, where it stated that one of the essential traits of this type of discrimination is that it is most likely to be due to measures taken by the State or the public authorities. Noting the exemption of section 151 from the ministerial reports, the Committee requests the Government to provide further information on what protection and avenues are afforded to persons who consider themselves to be subject to discrimination in employment on one or more of the exempted grounds, in particular political opinion, until the end of the year 2001. Further, in this connection, the Committee notes the recommendations made in the "Report to the Minister of Justice pursuant to section 5(1)(k) of the Human Rights Act 1993", produced by the Human Rights Commission in December 1998, and requests the Government to provide information in its next report on the follow-up to these recommendations.

3. The Committee notes the continuing efforts by the Government to promote equality of opportunity and treatment in employment and occupation in the public sector, and encourages the Government to continue to provide such information in future reports. The Committee notes that a Gender Integration Audit of the New Zealand Defence Force in 1997-98 has been carried out and requests the Government to provide a copy of the Audit Report and to provide information on the follow-up taken by the New Zealand Defence Force to implement its recommendations.

4. As regards the promotion of equal opportunity and treatment in the private sector, the Committee notes that the statistics provided by the Government show a significant imbalance in the representation of women in industry training and indicate that, although women are generally well represented in tertiary education, they continue to be over-represented in certain fields of education. The Committee notes with interest that the women's unemployment rate has decreased and is now lower than that of men, and that there is a further increase in women's participation in the legislators, administrators and managers category between March 1997 and March 1999. The Committee also notes that men continue to be over-represented in this category, whereas women only constitute 35 per cent of the higher-level executive and manager posts. Women also continue to be over-represented in professional and clerical occupations as well as in the category of sales and service workers, whereas men continue to be over-represented in the transport, storage and communications industry and in the building and construction industries.

5. As concerns the promotion of equality of ethnic minorities, in particular the Maori, the Committee notes the report produced in 1998 by the Ministry of Maori Development, according to which disparities in Maori and non-Maori labour force participation have widened due to a number of social and economic gaps, including lower participation in training and tertiary institutions and lower-level qualifications. While noting with interest that the unemployment rate for Maori women has decreased from 19.6 per cent in 1998 to 16.8 per cent in 1999, the Committee also notes that the unemployment rate for Maori men has substantially increased over the past year from 16.9 per cent in 1998 to 20.9 per cent in 1999. Further, the Committee notes that figures provided by the Government for 1998-99 continue to show that the Maori and Pacific Island labour force is disproportionally distributed toward certain categories of low-paid and low-skilled jobs.

6. In its comments, the NZCTU refers to the abovementioned ministerial report and states that, while recognizing the importance of this report, the NZCTU does not consider the establishment of a ministry to document indicators of discrimination to equate with action to eliminate discrimination. The NZCTU further expresses its concern that no comprehensive approach has been created to respond to the continuing disturbing trend of over-representation of women and minority groups in low-paid, part-time or casual jobs. The Government expresses its disagreements with the NZCTU's statement and refers to a number of measures undertaken to promote equality of opportunity and treatment for women and ethnic minorities in employment and occupation. The Government also states that the Ministry of Maori Development has an important role in monitoring the status of the Maori. While noting this information, the Committee observes, nevertheless, that despite the various measures taken, there is no assurance that the gaps between the Maori and non-Maori are closing or that there is a significant change in the educational and employment opportunities for women and ethnic minorities. The Committee, therefore, can only reiterate its hope that the Government, in cooperation with the NZCTU and the NZEF, will remain attached to its commitment to promote greater equality in the labour market by taking a comprehensive approach to the matter, and to take the necessary steps to enhance access of women and ethnic minorities to non-traditional fields of education and to increase their occupational choices and encourage upward mobility.

7. The Committee notes the NZCTU's statements that the Government has made no arrangement to alter the operation of the Equal Employment Opportunities (EEO) Contestable Fund and the joint Equal Employment Opportunity (EEO) Trust which remain bipartite between employers and the Government, and that no unions have been involved in the process of selecting recipients of funding. The Government replies that it does not accept the above claims made by the NZCTU and that any organization is eligible for funding under the EEO Trust and EEO Contestable Fund. It states that a range of organizations have received funding from the EEO Fund, as demonstrated by the initiatives described in the Government's report.

8. In its previous observation, the Committee had requested the Government to provide an assessment concerning the extent to which individual employment contracts in the private sector contain EEO provisions. In this connection, the NZCTU states that no efforts have been made by the Government to collect or submit comprehensive data on the incidence of EEO provisions in the private sector. The NZEF, on the other hand, describes a number of initiatives to increase educational opportunities for women and ethnic minorities and states that the concept of EEO is inherent in any private sector contract entered into, individual or collective. Consequently, according to the NZEF, the presence in an employment contract of EEO provisions would not achieve any more than does equality legislation and their absence is no indication of non-compliance. The Government replies that there is currently little information available as to the extent to which EEO provisions are included in individual employment contracts. Noting that the statistics provided by the Government in its report on EEO and work and family provisions in employment contracts do not distinguish between collective and individual contracts, the Committee hopes that the Government will take the necessary steps to collect data that would provide a more complete picture of the extent to which EEO provisions have been expressly included in individual employment contracts in the private sector. Further, the Committee requests the Government to provide information on the various activities undertaken, in cooperation with the NZEF and the NZCTU, which indicate the progress made in the application of the Convention and of the national legislation on equality in the private sector.

9. In reference to its previous comments concerning avenues for redress based on those grounds of discrimination proscribed by the Human Rights Act of 1993, but which are not contained in section 28 of the Employment Contract Act of 1991, the Committee notes the decisions supplied and requests the Government to continue to supply examples of cases pertinent to the Convention and, in particular, those related to grounds of discrimination not covered by the Employment Contract Act of 1991.