Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Social Policy (Non-Metropolitan Territories) Convention, 1947 (No. 82) - Tokelau

The Committee notes the observations of Business New Zealand, as well as the observations of the New Zealand Council of Trade Unions (NZCTU), received on 20 August 2018, together with the Government’s report, as well as the Government’s reply to these observations.

Parts II and III of the Convention. General principles. Improvement of standards of living and other social policy objectives. The Government recalls that, following two self-determination referenda held in 2006 and in 2007, in which Tokelau voters signalled that conditions were not yet right for constitutional change, the leaders of Tokelau and New Zealand decided that there should be an appreciable period of time before Tokelau would undertake any further act of self-determination. It adds that, following this decision, the focus of the relationship between New Zealand and Tokelau since 2008 has been to address the core requirements of the three atoll populations. The Government indicates that much remains to be accomplished by Tokelau to ensure that core services are delivered for the people of each atoll before conditions for any future referendum could be seen to be met. The Committee recalls that the provision of economic support by New Zealand for Tokelau’s economic and social development was agreed in the Joint Statement on the Principles of Partnership between Tokelau and New Zealand signed in 2003, and was reaffirmed in the Joint Commitment for Development in 2011. The Government indicates that this budgetary support is provided according to the priorities of the Tokelau National Strategic Plan and assists the Government of Tokelau to pay for core government services, including health and education. The Committee notes that, from July 2015 to June 2018, New Zealand contributed 35 million New Zealand dollars (NZD) in budgetary support and an additional NZD5 million to strengthen public services in Tokelau. It also recently committed NZD40 million to improving Tokelau’s transport and Internet connectivity. The Committee notes that New Zealand’s assistance has been matched during this period by major increases in Tokelau’s fisheries revenue. In this respect, the New Zealand Government provides support to Tokelau to sustainably manage its fisheries and to maximize its revenue for the Tokelau exclusive economic zone. The Committee takes note of the new Tokelau Employment Commissioner Rules agreed in 2016, which set out the role of the Commissioner in managing public service performance, including in making recommendations for the appointment, promotion, and remuneration of public sector employees. The Committee requests the Government to continue to provide information on the progress made in pursuing the social and economic policies covered by the provisions of the Convention applicable to Tokelau.

Part IV and VI. Migrant workers. Abolition of discrimination. The Government indicates that the provisions related to migrant workers should be seen in the context of Tokelau’s cultural and geopolitical context. As far as the provisions on abolition of discrimination are concerned, the Government indicates that it is bound by the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and refers to its previous reports on that Convention. The NZCTU observes that provisions concerning migrant workers and non-discrimination should receive expression in the Tokelau jurisdiction to the extent possible. The Committee requests the Government to provide updated information on measures taken or envisaged relating to migrant workers (Articles 10–13) and abolition of discrimination (Article 18).

Part VIII. Modifications to the provisions of the Convention. The Committee recalls that, in the declaration of 18 February 1954, appended to its ratification of the Convention, the Government of New Zealand undertook to apply the provisions of the Convention to the Tokelau Islands, subject to the following modifications: that the provisions of Part V of the Convention (Articles 14–17, concerning the remuneration of workers and related questions) and of paragraphs 2 and 3 of Article 19 of the Convention (concerning child labour, the school-leaving age and the minimum age for admission to employment) would not be applied to the Tokelau Islands (ILO, Official Bulletin, 31 December 1954, Vol. XXXVII, No. 7, page 377). The Government recalls that the rationale for its continued reliance on the modifications is that there is an absence of trade unions and of relevant legislation governing the matters arising under article 14(1) and that such articles therefore continue to be inapplicable to Tokelau. The Committee notes the Government’s statement that all other parts and articles under Convention No. 82 apply in Tokelau. The Committee notes that, in May 2014, an external review of Tokelau’s public service framework was completed, which included a review of the public service organization chart and all job descriptions, and the development of a remuneration policy framework and remuneration levels, guidelines and procedures. The review identified a number of inconsistencies, inter alia, with remuneration practices which are being addressed. In its observations, the NZCTU urges the Government to consider ending its reliance on these modifications. It maintains that the New Zealand Government should consider together with the Tokelau Government how freedom of association and the right to collective bargaining are guaranteed in the Tokelau territory. The Committee recalls that, pursuant to Article 22(3) of the Convention, the Government may at any time renounce in whole or in part the right to have recourse to any modification indicated in a declaration by a subsequent one. In accordance with article 35, paragraphs 2 and 3, of the ILO Constitution, such a decision would have to take the form of a formal declaration communicated to the Director-General of the International Labour Office. The Committee therefore reiterates its request that the Government consider the possibility of taking such action in the near future in accordance with Article 22(3) of the Convention and article 35, paragraph 3 of the ILO Constitution.