Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

1. The Committee notes the extensive information provided by the Government in its report and attached documentation, as well as the comments of Business New Zealand (BNZ) and the New Zealand Council of Trade Unions (NZCTU) and the Government’s brief response to the latter. It also notes receipt of a communication of 8 May 2003 from the International Confederation of Free Trade Unions (ICFTU), concerning the application of the Convention.

2. In its comments, BNZ points out that it has been illegal in New Zealand since 1977 to pay men and women differently for doing the same job in the same circumstances and with the same work experience, and that the differences in earnings rates as between men and women are attributable to factors other than sex. In BNZ’s view, the Convention calls only for equal remuneration as between women and men workers doing the same jobs, in the same circumstances, in the same employment.

3. In contrast, the NZCTU reiterates that compliance with the Convention requires a commitment not only to equal pay in the sense indicated by BNZ, but to pay equity, meaning equal remuneration as between men and women for work of equal value. In this regard, the NZCTU welcomes the appointment of an Equal Employment Opportunities Commissioner within the Human Rights Commission who has some responsibilities with respect to equity in remuneration. It also appreciates the prominence given in the Government’s report to the Ministry of Women’s Affairs’ publication Next steps towards pay equity: A discussion document. The NZCTU in particular notes the opportunity that this document provides for exploration by the Government of pay equity options, although it believes the report could have concentrated more on pay equity as compared to equal pay for equal work.

4. The ICFTU refers to the existing earnings gap between men and women and the lack of a government policy to address equal pay for work of equal value.

5. With regard to national legislation, the Government reiterates that equal remuneration for workers performing the same or similar jobs is required by several Acts, including the Employment Relations Act 2000 (ERA), the Human Rights Act 1993 (HRA), and the Equal Pay Act 1972 (EPA). Referring to its previous comments regarding the scope of the protection against sex-based pay discrimination provided by national legislation, the Committee notes that the ERA retains the "substantially similar" employment requirement reflected in earlier legislation and that its definition of employment discrimination appears to be restricted to cases where employees work for the same employer (see ERA, section 104(1)).

6. The Committee must once again draw the Government’s attention to the requirement in the Convention for equal remuneration to be paid for "work of equal value", a reference that goes beyond the concept of same or similar work, using instead the concept of the value of the work as the point of comparison for equality to be achieved. With respect to the reach of comparison, the Committee recalls that the scope should be as wide as allowed by the level at which wage policies, systems and structures are set. The Committee hopes the Government will consider reviewing its legislation to bring it into conformity with the Convention. It nonetheless must note the most recent efforts undertaken to promote the principle of the Convention though the publication of Next steps towards pay equity: A discussion document ("Next steps") (as well as the follow-up "Report on public submissions"), a report prepared by the Ministry of Women’s Affairs (MWA) as part of its Pay Equity Project. This project, according to the Government, is intended to raise awareness and to initiate and inform public discussion on issues concerning not only the gender pay gap, but pay equity as well. Next steps itself notes that, despite the ratification of the Convention, "no current policies address the longstanding commitment to take action on equal pay for work of equal value for women," and that the Government needs to take active steps to close this policy gap. In this regard the Committee notes with interest that the MWA, the Department of Labour and the State Services Commission are working together to develop policy directions on equal remuneration for work of equal value, including the exploration of occupational patterns by gender (and ethnicity) in recent census data, and the commissioning of research on the implementation of remuneration equity policies in overseas countries. The Committee asks the Government to report on the progress in the development and implementation of the pay equity policy which, in light of the current legislative limitations, would appear an important element for the implementation of the Convention.

7. The Committee refers to its previous comments that, for progress to be made in the promotion of the principle of equal remuneration for work of equal value, it is essential that a comprehensive approach be taken to ensuring and promoting equality of opportunity and treatment in a wider context. In this regard, the Committee notes with interest the range of continuing government initiatives promoting the principle of equal remuneration, including: (1) the promotion of positive attitudes and practices among employers; (2) research efforts by the State Service Commission such as the collection and annual publication of Public Service-wide Equal Employment Opportunities (EEO) statistics, as well as work on the pay gap in the public service, and the publication of the 2001 Human resource guidance - EEO data in the public service, which encourages public service departments to promote, develop and monitor equal employment opportunities; (3) work by the Equal Employment Opportunities Trust and the Contestable Fund (including funding by the latter of a project on equal remuneration systems and retention strategies); and (4) the development of work programmes and services by MSD/work and income, providing assistance to women to enter and remain in the workforce. The Committee would be grateful if the Government would continue to provide information on such initiatives and the results they have achieved.

8. Complaint procedures and enforcement mechanisms. Referring to its previous comments on the low number of equal pay complaints brought in New Zealand during the last reporting period, the Committee notes that, in the current reporting period, no cases of sex discrimination in pay (under the ERA) were heard by the Employment Relations Authority, that only four complaints of gender-based discrimination were received by the Human Rights Commission and no cases relating to equal pay were heard by the Human Rights Review Tribunal (under the HRA), and that no EPA cases were brought. The Committee notes in this regard the NZCTU’s reiterated assertion that this pattern shows the limitations of the current legislative approach, which requires individual claims, in a context in which information about actual rates of pay and remuneration is limited. The Committee is concerned by the lack of complaints and urges the Government to take measures to ensure the effective enforcement of relevant laws on equal pay through both complaint-based structures, labour inspection or other means. The Committee has raised other points on this matter in its direct request.

9. The male-female earnings differential. The Government acknowledges that, according to the EEO Trust Diversity Index 2001, the gender pay gap had increased. However, it asserts that, according to the analysis by the Department of Labour, which used a larger data set (including the firm-based Quarterly Employment Survey (QES) and the Household Labour Force Survey Income Supplement (HFLSIS)), the remuneration gap had in fact decreased. For example, the QES shows an increase in the percentage hourly wage earned by women as compared to men, from 84.3 per cent in June 1999 to 84.4 per cent in June 2001, while the HLFSIS medians measure, the measure the Government believes is the most reliable, shows an increase over that same period, from 85.0 per cent to 87.2 per cent. The Government considers that a further narrowing of the gap will continue to occur gradually. The Committee notes that the NZCTU cautions against the use of medians as a measure of hourly earnings for male and female earners, as they may hide many other inequities either side of the median. BNZ, by contrast, asserts that the median is the "preferred measure" for analysing the gender pay gap. Regardless of which measure is the most accurate, all are agreed that a gap in remuneration as between men and women continues to exist and has not changed significantly. The Committee accordingly trusts that the Government will continue to act, in coordination with the social partners, to reduce this gap.

The Committee has made a direct request to the Government on other points.