Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations by the New Zealand Council of Trade Unions (NZCTU) and Business New Zealand (Business NZ), submitted by the Government with its report.

Article 1 of the Convention. Work of equal value. For many years, the Committee has been commenting that the Employment Relations Act (ERA), 2000, the Human Rights Act (HRA), 1993, and the Equal Pay Act (EPA), 1972, limit the requirement for equal remuneration for men and women to the same and substantially similar work. In this regard, the Committee noted the lack of information provided by the Government indicating that the legislation concerning equal remuneration is interpreted to apply the broader concept of “work of equal value” provided for in the Convention. The Committee notes the Judgment of the New Zealand Court of Appeal in Terranova Homes & Care Ltd v. Service and Food Workers Union Nga Ringa Tota Inc. (CA631/2013 [2014] NZCA 516 of 28 October 2014) which upheld a decision of the Employment Court in Service and Food Workers Union Nga Ringa Tota Inc. and Bartlett v. Terranova Homes & Care Ltd [2013] (Bartlett) relating to preliminary questions of law concerning the interpretation of section 3(1)(b) of the EPA (work exclusively or predominantly performed by female employees). The Committee notes that the Court of Appeal, based on the existence of the two categories in section 3(1), the purpose of the EPA and its definition of equal pay, reached the conclusion that the Act is not limited to providing for equal pay for the same or similar work. The Court was of the view that, for comparing work exclusively or predominantly performed by women, it may be relevant to consider evidence of wages paid by other employers and in other sectors. The Court also considered that any evidence of systemic undervaluation of the work in question must be taken into account. The Committee notes that the Employment Court, before hearing the substantive claim in Bartlett, may be asked to state principles under section 9 of the EPA relating to appropriate comparators or guidance on how to put forward evidence of other comparator groups or issues relating to systemic undervaluation. The Committee notes that Business NZ expresses concern at the impact of the substantial hearing of the case in the Employment Court and that the NZCTU and the Government consider that the case may set an important precedent for female-dominant industries. Noting that the case may have potentially far-reaching implications for predominantly female sectors and occupations, the Committee requests the Government to provide information on the outcome of the substantial hearing before the Employment Court in Bartlett and any statement of principles pursuant to section 9 of the EPA. Please continue to provide information on any other judicial or administrative decisions relating to the principle of the Convention. The Committee further requests the Government to provide information on how it is ensured that when applying the Employment Relations Act, 2000, and the Human Rights Act, 1993, the broader concept of work of equal value enshrined in the Convention is taken into account.

Occupational segregation. The Committee notes that the NZCTU draws attention to the need to promote equal pay for work of equal value in those sectors of the economy, such as the aged care sector, within which large numbers of women workers perform intensive and skilled work with poor wages. The Committee notes that the New Zealand Human Rights Commission’s Caring Counts report of May 2012 points to the persistence and extent of the undervaluation and underpayment of thousands of women working in the aged residential care sector due to the fact that care work is seen as women’s work and has traditionally been unpaid. The Government indicates in this regard that the Ministry of Women’s Affairs’ programme for 2013 focused on the economic independence of low-skilled, low-income women, and on increasing the number of women in non-traditional employment to address the female concentration in lower paid occupations and in particular Maori and Pacific Island women, who are more likely to be employed in lower skill and lower paid positions. The Committee notes the observations from Business NZ that personal career choice is a factor which contributes to the gender pay gap. The Committee asks the Government to indicate the measures taken, including by the Ministry of Women’s Affairs, to address the undervaluation of work performed by women in the care sector, including the follow-up action taken in the context of the Caring Counts report, as well as in other sectors which predominantly employ women, including special education support and social work. The Committee further asks the Government to provide information on the results achieved by the measures taken to address the concentration of women in lower paid occupations, in particular Maori and Pacific Island women, and to improve their access to a wider range of job opportunities at all levels.

Article 3. Job evaluation in the private sector. The Committee notes the Government’s statement that it will continue to provide pay and employment equity tools and resources, including the review tools and the Equitable Job Evaluation System, to both the public and private sectors. In this regard, the Government also continues to encourage voluntary participation of public and private sector organizations in pay and employment equity projects and ensures the availability of the resources referred to above. The Committee notes that Business NZ reiterates previous observations that the value to be attributed to a job is a highly subjective concept, and that the value to be attributed to a particular job is likely to vary depending on the biases of the person carrying out the evaluation. The Committee asks the Government to indicate whether any assessment has been undertaken of the use made by employers in the private and public sectors of pay and employment equity tools and resources, and to provide information on any other measures taken to ensure that the value of jobs is determined objectively and free from gender bias. It encourages the Government to undertake awareness-raising activities, with the cooperation of the social partners, concerning the concept of “work of equal value” and the importance of using objective job evaluation free from gender bias, and to provide information on any steps taken in this regard.

The Committee is raising other matters in a request addressed directly to the Government.