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

Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

A Government representative stated that her Government was somewhat surprised that the request for further information on the application of Convention No. 100 was raised as a matter of consideration by this Committee. The observation made by the Committee of Experts raised no issues, legal or otherwise, over New Zealand's compliance with the Convention and, therefore, there was no basis for any substantive discussion. Her Government would, of course, respond to the request for further information in the same way as it consistently complied with all of its reporting obligations. Given the nature of the information sought, this would necessarily take some time. However, this information would be included in the next report on the application of this Convention which, according to the established practice and to Convention No. 144, would also be the subject of consultation with the employers' and workers' organizations.

The Workers' members that this case on Convention No. 100 raised important problems in respect of the principles and interests which were involved. They wished to have more information on the question of whether the new approach to the functioning of the labour market promoted by the Government by virtue of the law of 1991, that favoured individual contracts at the expense of collective agreements, did not require the adoption of additional measures to guarantee equality of remuneration between men and women. As a result of this law, an increasing proportion of workers was not covered by collective agreements, and female employees who were concentrated in the services sector and in small and medium-sized enterprises were particularly affected by this approach. In 1972 and 1977 New Zealand had introduced a system of fixing wages by collective agreements inspired by the principles of the ILO. This legislation had been completed in 1990 by introducing the notion of equal pay for work of equal value and by the introduction of action plans to promote effective equality of treatment between men and women. However, this legislation was repealed by the new law of 1991 which favoured wage-fixing on an individual basis and necessarily affected the machinery for implementing equality of treatment. This affected access to the information on the level of wages, because wages paid on an individual basis could not be sufficiently made known; the effective application of the principle of equal pay for work of equal value and the complaints procedure against discrimination; and also had implications concerning the protection of women against acts of discrimination or intimidation when they sought to defend their rights before the competent tribunals or other bodies. As noted by the Committee of Experts' report, the Labour Inspectorate had received only one complaint under the Equal Pay Act during the period 1990-93. The Workers' members considered that it was an important case because equality of remuneration should be applied equitably under any labour market system, and it was for this reason that they had proposed to discuss the case. They would like the Government to provide more information on recent developments with respect to the effective implementation of equality of remuneration, including remuneration stipulated in individual contracts, in the services sector and in other sectors employing a large number of women. The Workers' members insisted that the Government should, in conformity with the requirements of the Convention, ensure that legislation and implementing machinery corresponded to the specific needs of a deregulated labour market, so as to guarantee and promote the principle of equality of remuneration.

The Employers' members noted that the comments made by the Committee of Experts were very general in nature. However, they raised concern over the possible impact of the new legislation on the question of equal treatment and equal remuneration for men and women, taking into account the increased emphasis placed by the Government on individual contracts and the reduced importance attached to collective agreements. The Employers' members fully understood that such a development was a source of preoccupation with workers, though they believed that workers could also defend their interests on the basis of individual contracts, in particular, in countries where citizens were well aware of their rights and how to implement them. They pointed out that there was no criticism levelled by the Committee of Experts with regard to the legislation and measures adopted by the Government, but that there was only a request for further information to be supplied in the next report. The Employers' members felt sure that the Government would in fact follow up this request.

The Workers' member of New Zealand stated that, after having been the first country in the world to give women the right to vote, a hundred years ago, extremist free market policies combined with an attack on the role of the State, as well as privatization, reductions in social welfare provisions and a deregulated labour market introduced by the Employment Contracts Act, had put New Zealand in serious breach of its legal obligations under this fundamental Convention. The latest statistics showed a steady trend to widening the gap between men's and women's wages since the introduction of this Act, which also rendered obsolete and totally ineffective the Equal Pay Act and its state sector equivalent. The only option left open in this situation was the use of the personal grievance provisions of the Employment Contracts Act or a complaint to the Human Rights Commission. In practice, these were totally ineffective in the environment created by the new Act, which was characterized by the following: (i) individual contracts were becoming much more common and remuneration was likely to be more varied by region, industry, firm and other factors which made it more difficult to establish discrimination in individual cases; (ii) fewer people were in a position to know what others were paid and thus whether there was any discrimination; (iii) merit and performance pay were becoming more common and there was evidence that they provided a great potential for unintended discrimination; (iv) support from a union was less likely to be available because of low levels of union coverage. Every indicator on what was happening to women in the labour force in New Zealand was showing a negative effect. The most disadvantaged were women in the clerical administration, retail and service sectors, who were low paid and increasingly casualized, and were being denied the opportunity to acquire skills and training to improve their position in the labour market. While this was a complex problem, the fundamental question for this Committee was whether the existence of a deregulated labour market was an acceptable excuse for the Government to do nothing to provide for equal pay for work of equal value. It must ask the Government what it intended to do to provide for equality of remuneration between men and women under the Employment Contracts Act and what changes were needed to this Act to meet the requirements of the Convention. She stated that the Government had not replied substantively to the Committee of Experts for the last three years and must be asked now to supply the full report for next year.

The Workers' member of Singapore considered that in evaluating the measures undertaken by the Government, one had to determine whether they were sufficient to ensure that women received equal pay for work of equal value. If the statistics showed that women's wages continued to lag significantly behind that of men, the adequacy of these measures had to be re-examined. The common difficulty with laws dealing with individual grievances was that the process of enforcing them was often arduous, time-consuming, expensive and thus generally prohibitive, especially for women who were already disadvantaged in their position in society and in the resources available to them. This was supported by the fact that between 1990 and 1993 the Labour Inspectorate in New Zealand received only one complaint under the Equal Pay Act. Wondering whether the mere publication of a manual issued by the Government was sufficient, she emphasized that a conscious effort had to be made to integrate the policy of equal pay for work of equal value at all strategic levels of decision-making. Access to information was critical in this respect and, from the comments made by the Committee of Experts, it appeared that such information was lacking and should be provided by the Government as soon as possible.

The Workers' member of the United States said that a similar experience in the United States had showed that one should examine whether there was a pattern or practice of inequity that extended beyond the experience of a single isolated individual. As was pointed out, the legislation recently enacted in New Zealand was designed for individual and not for class action complaints. Individual contracts were not an adequate substitute for collective bargaining. An isolated individual was far less likely to have the resources or knowledge of the extent of similar inequality elsewhere in the same firm, much less in the same industry or in the economy at large. In New Zealand there was substantial statistical evidence that in occupations with a large number of women, such as nurses, retail, and hotel workers, the ratio of women's pay to that of men's had declined since the new legislation was enacted. A similar philosophy in the United States - that no government was a good government - resulted in deregulation to serve that ideology, and inequality increased substantially during the decade; sweatshops and child labour, which were presumed to be historical artifacts, returned as facts of working life. For this reason he urged the Government of New Zealand to recognize that a deregulated labour market was an unequal labour market and to adjust its law and practice accordingly, so as to better conform to the Convention.

The Government member of Germany was convinced that if the Committee of Experts asked certain questions, they did so because they had the suspicion at the outset that the Convention was possibly not being implemented in the proper way. The experts were asking for an early report and their comments contained not just questions but also certain points of criticism in connection with the application of this Convention, as well as that of Convention No. 42. The Committee of Experts was asking for further information on particular measures, including arbitration procedures and the results of ongoing research and studies. The collection of such information would require time and should first be submitted to the experts for their evaluation; for that reason he considered that the position of the Government representative of New Zealand was perfectly understandable in that she could not give this Committee completely comprehensive information in respect of these points.

The Workers' member of Pakistan associated himself with the concerns expressed by other Workers' members on this vital issue of the discrimination of women, mostly in the developing countries, but also in the developed countries. The statistics invoked by the Workers' member of New Zealand showed that women were still subject to discrimination, particularly after the introduction of the new legislation. To comply with its obligations under the Convention, the Government should carry out objective appraisals of the jobs on the basis of the work performed, in consultation with the employers' and workers' organizations, in order to enforce equality in the payment of wages. Therefore, he urged the Government to take into account the observation made by the Committee of Experts in carrying out its constitutional obligation to ensure the principle of equality of treatment.

The Government member of the United Kingdom supported the comments made by the Government member of Germany. He stated that most of the information that had been given to this Committee was not included in the Committee of Experts' report. This was not the appropriate way to submit such information, as this Committee had always based its work on the report of the experts. His Government therefore considered it wrong that cases, such as this one, had been selected when there had been no explicit criticism by the experts, but only a number of requests for further information. If it was selected merely to ensure a so-called equitable, reasonable distribution of cases, his Government would suggest that the wrong criteria were being used for the selection of cases and that this could undermine the credibility of this Committee. It would be far more profitable if this Committee were to spend its valuable time either on the more serious cases of human rights abuses, which, it seemed, were being passed by for purely political purposes, or on cases of progress from which lessons could be learned. If the supervisory system was not to fall into disrepute, he hoped that this situation would not be repeated in future years, and suggested that the Committee should perhaps establish stronger criteria in future for the selection of cases.

The Workers' member of Germany, referring to the comments made by the Government members of Germany and of the United Kingdom, emphasized the significance of the discussion in this Committee on such important cases. Even if there were difficulties in providing comprehensive information, it would nevertheless have been possible for the Government representative of New Zealand to have shown the political will of the Government to fully implement Convention No. 100. She could have done this explicitly, which would have made this dialogue much more significant and relevant. He therefore considered that such cases concerning possible violations of fundamental rights should be continued to be discussed and dealt with in this Committee in the future in order to give the governments an opportunity to express a positive attitude to the supervisory machinery and to the relevant Conventions.

The Government member of the United States explained her Government's view of what kind of cases should be discussed in this Committee. When the Workers' and Employers' members decided what cases should go on the list, they considered a lot of things: which cases were serious, which cases had been cited in footnotes, which were discussed in this Committee on previous occasions and whether there had been any important new developments in those cases. They tried to develop a list that included a range of countries and a range of Conventions. She believed that this Committee should not limit the list of cases to a certain type of case and discuss only serious, flagrant abuses of human rights Conventions. There were other types of Conventions and other types of problems to be looked at. Her Government believed that when a country was asked to appear before this Committee, it was not tantamount to being on some sort of a black list. If only the most serious cases had to be looked at, then by definition it would not be possible to look at cases of progress which should also be discussed in this Committee. She was glad to note that there were more discussions in this Committee on Convention No. 100 which was an important Convention. However, she hoped that there would be no exaggeration in this Committee of a case so that it appeared that the situation was more serious than the Committee of Experts had indicated it to be. This could threaten the credibility of the supervisory system.

The Government representative of New Zealand reiterated that her Government would comply fully with the Committee of Experts' request for further information in its next report and in consultation with the social partners.

The Workers' members thanked the Government representative of New Zealand for her undertaking to provide the information requested. Concerning the remarks made in relation to the list of cases, they also thanked the Government representative of the United States for having recalled the criteria and the spirit in which the draft list of cases was prepared. The Workers' members judged it necessary to deal with this case in order to draw the attention of the Government of New Zealand to the importance of the questions raised by the experts on this matter, which were also important for a number of other countries as well. As to the content of the discussion, they considered that in fact it was not yet clear whether the new law undermined equality of remuneration between men and women. However, many Workers' members stressed that, having regard to their practical experiences, the danger of this was real and it was important that it should be monitored and that the obligations under the Convention be respected. To do this, it was necessary that effective legal machinery be established and dynamic action be undertaken by the Government. It was therefore appropriate to stress in the conclusions the need to have, as soon as possible, complete information so as to be able to assess the situation in New Zealand.

The Committee took note of the statement made by the Government representative, in particular the indication that her Government would provide further information with its next report due on this Convention. The Committee also took note of the various facts and views expressed in the course of the discussion. The Committee considered that the Government should provide the information requested by the Committee of Experts concerning a survey on bargaining structures, process and outcomes. The Committee also requested the Government to supply statistics on wages earned in sectors with a large number of female employees, such as the services sector. It further requested information on how the current machinery guaranteed, in the absence of collective bargaining, the principle of equal remuneration contained in the Convention. The Committee hoped that, on the basis of this additional information, the Committee of Experts would be in a position to further examine these issues more thoroughly.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government following the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of Business New Zealand and the New Zealand Council of Trade Unions (NZCTU) communicated with the Government’s reports.

Articles 1 and 2 of the Convention. Addressing the gender pay gap. Referring to its previous comments, the Committee notes that, from the Labour Market Statistics of Statistics New Zealand (StatsNZ), in the June 2020 quarter, women’s median hourly earnings were 25.57 New Zealand dollars (NZD) compared with NZD 28.26 for men, with a gender pay gap of 9.5 per cent. Since 2017, the gender pay gap has remained relatively static. It further notes, from the 2020 Quarterly Employment Survey of Stats NZ, that, in May 2020, men’s average earnings were 19.8 per cent higher than those of women with a gender earnings gap higher in the public than in the private sector (26.2 per cent and 23.2 per cent respectively). When comparing average weekly earnings by gender and ethnicity, data show that earnings rates are still much lower for ethnic groups other than European and, in particular, that, in 2019, the gender pay gap for Maori and Pacific Island women in relation to European men’s average weekly earnings was 38.8 per cent and 39.4 per cent, respectively. Referring in that regard to its 2020 observation on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Committee notes that in Business New Zealand’s view education is also a factor of the gender pay gap, most probably for Maori and Pacific Island women for whom the earning gap will inevitably persist until they are able and want to engage in higher-paying employment. The Committee also notes that women make up a majority of the workforce of the two lowest paid industries, namely accommodation, cafes and restaurants (60.8 per cent of women) and retail trade (51.1 per cent of women), while they represent a minority in the highest paid industry, namely the electricity, gas and water industry (25.4 per cent of women), where the average earning is twice as high as in the above-mentioned two lowest paid industries. Furthermore, women are still most represented among clerical and administrative workers (73.5 per cent of women), while they represent only 20.4 per cent of the technicians and trade workers. Regarding the causes of the gender pay gap, the Committee notes the Government’s indication, in its report, that, in March 2017, the Ministry for Women released research on «empirical evidence of the gender pay gap in New Zealand » which concludes that 80 per cent of the gender pay gap is now driven by «unexplained» factors. The Government adds that further reduction of the gender pay gap remains a priority. The Committee notes that in Business New Zealand’s view the gender pay gap is a useful measure to understand differences in pay but it is a limited measure as it does not account for men and women doing different jobs or working different hours (e.g. part-time to accommodate family circumstances), nor does it take account of personal characteristics that can influence pay, such as qualifications and age. It notes that, in its observations, the NZCTU expresses concern about the lack of progress in developing pay transparency legislation and requests the Government to urgently assess and undertake measures to address the gender pay gap in the private sector. In that regard, the Government states that relevant ministers have commissioned work to consider a pay transparency regime. Noting that the Parental Leave and Employment Protection Amendment Act 2017 (2017 No. 45) extended the duration of paid parental leave from 18 to 22 weeks on 1 July 2018, with a further extension to 26 weeks on 1 July 2020, the Committee notes that in NZCTU’s view further extension is needed, together with a fairer distribution of family responsibilities between men and women in order to facilitate the reconciliation between family and work obligations. In that regard, the Committee notes, from the 2018 Government’s report under the national-level review of implementation of the Beijing Declaration, that research conducted on parenthood and labour market outcomes found that women who return to work after becoming parents earn hourly wages that are 4.4 per cent lower on average than the wages they would have earned had they not had their children; and that women who are away from work for over a year experience a 8.3 per cent decrease in hourly wages. The study further confirmed that balancing parenthood and paid work in New Zealand is still highly gendered and, over time, this can lead to substantive differences in earnings between mothers and fathers. The Committee notes that, in their concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination Against Women (CEDAW) and the UN Committee on Economic, Social and Cultural Rights (CESCR) both raised concerns about: (1) the persistent gender pay gap, which disproportionately affects women, including Maori and Pacific Island Women; (2) occupational gender segregation; and (3) the concentration of women in part-time, casual and low-paid employment, constituting an obstacle to eliminating the gender wage gap and affecting women’s pension benefits when they retire (CEDAW/C/NZL/CO/8, 25 July 2018, paragraph 33; and E/C.12/NZL/CO/4, 1 May 2018, paragraph 30). The Committee further notes that, in the framework of the Universal Periodic Review (UPR), in 2019, the UN Human Rights Council specifically recommended eliminating the gender pay gap, including by increasing the representation of women in leaderships positions (A/HRC/41/4, 1 April 2019, paragraph 122). The Committee asks the Government to provide information on the measures implemented to address the gender pay gap and its underlying causes, such as vertical and horizontal occupational gender segregation and stereotypes regarding women’s professional aspirations, preferences and capabilities, and their role in the family, by promoting women’s access to a wider range of jobs with career prospects and higher pay. It further asks the Government to provide information on the measures implemented to specifically address the gender pay gaps between, and within, ethnic groups, in particular Maori and Pacific Island People, as well as on any assessment made of their impact. Finally, the Committee asks the Government to continue to provide statistical information on the gender pay gap in the various sectors and occupations, disaggregated by sex and ethnicity.

Application of the principle in the public service. Referring to its previous comments, the Committee notes the Government’s statement that several initiatives are being implemented by the Government to address the gender pay gap in the public service, including: (1) the gender pay principles, launched in June 2018, which provide guidelines for State sector agencies to help them create working environments that are free of gender-based inequalities; and (2) the Gender Pay Gap Action Plan for eliminating the gender pay gap in the public service for 2018-2020, which aims at ensuring that by the end of 2020 there are no gender pay gaps within the same or similar roles; 50 per cent of positions in the top three tiers of leadership are held by women; and there is no bias or discrimination in remuneration systems and human resources practices. The Committee notes, from StatsNZ, that, the gender pay gap in the public service was estimated at 10.5 per cent in 2019, while important variations remain between the different departments, ranging from 32.8 per cent in the Ministry of Defence to -2.2per cent in the Oranga Tamariki - Ministry of Children, mainly as a result of occupational gender segregation, occupational structure and seniority. The Committee asks the Government to provide information on the measures implemented to reduce the gender pay gap in the public sector and its underlying causes, such as occupational gender segregation, in particular in the framework of the Gender Pay Gap Action Plan 2018-2020 and the implementation of the gender pay principles. It asks the Government to provide information on any assessment made of their impact and results. The Committee further asks the Government to continue to provide statistical information on the earnings of men and women in the public service, disaggregated by occupational group.

Article 2(2)(c). Collective agreements. The Committee previously noted the Government’s indication that the Employment Relations Amendment Act, 2014, aimed at increasing flexibility in collective bargaining, while according to the NZCTU, such amendments would affect particularly women, and Maori or Pacific Island people. It encouraged the Government to assess the impact of the new amendments on the role of collective agreements in addressing wage inequality. Noting the Government’s statement that no assessment has been made in that regards, the Committee notes that the Employment Relations Amendment Act 2018 (2018 No. 53) now requires pay rates to be included in collective agreements, with an indication of how the rate of wages or salary may increase over the agreement’s term. It observes however that the new amendments do not contain any reference to the need to ensure equality of treatment in the fixing of pay rates in collective agreement. The Committee further notes that the NZCTU, while welcoming the new amendments, expresses concern over the continued efforts of the Government, as employer, to narrowly construe these provisions which is inconsistent with the intention of the provisions. The Committee asks the Government to assess, in cooperation with workers’ and employers’ organizations, the impact that the amendments introduced in the Employment Relations Act in 2018 may have on addressing the gender pay gap in practice, and in particular on the role of collective agreements in addressing wage inequality. Recalling the important role that can be played by collective agreements in the application of the principle of equal remuneration for men and women for work of equal value, the Committee asks the Government to provide information on the number and content of the provisions on wage determination and equal remuneration for men and women for work of equal value that have been included in such collective agreements.

Article 3. Objective job evaluation. The Committee previously requested the Government to provide information on any measures taken to promote the use of objective job evaluation methods to ensure gender equality in the determination of remuneration. The Committee notes the Government’s indication that the Ministry of Business, Innovation and Employment (MBIE) provides pay and employment equity tools, such as a pay and employment equity review analysis tool available online, for both private and public organisations that want to address equity issues in their workforce. It further notes the information provided by Business New Zealand that most larger employing organisations assess their jobs using gender neutral assessment systems such as the factor-based Hay assessment system, while smaller firms are likely to consult a website such as New Zealand on-line wage and salary solution. The Government adds that, as regards job evaluation methods used in the context of a pay equity claim, it recommends the use of a gender-neutral job evaluation tool to assess both the work of the claimant and the comparator occupational group, but does not specify exactly which tool should be used giving the parties the opportunity to discuss and agree on it. Regarding the pay equity claims processes that have been settled so far within the pay equity principles framework in the public sector, the Government indicates that two pay equity claim processes have used the gender-neutral Equitable Job Evaluation Tool and one of the processes also partially used the factor-based Hay assessment system. The Committee asks the Government to provide information on any measures taken or envisaged with a view to promoting the use of objective job evaluation methods that are free from gender bias, including targeted training on the use of existing pay and employment equity analysis tools and resources for workers and employers and their organizations in the private sector. It further asks the Government to continue to provide information on the job evaluation methods used in the context of pay equity settlements.

Enforcement. The Committee previously noted the NZCTU’s observation that a proactive approach in monitoring pay equity and equal pay claims would be needed. The Government indicated that initiatives to monitor or support pay equity may be considered after the discussion of the Joint Working Group’s recommendations was concluded. The Committee notes the Government’s statement that the Equal Pay Amendment Act 2020 (2020 No. 45) addresses such issues. It also notes that, in its 2018 concluding observations, the CEDAW remained concerned about the persistence of multiple barriers impeding women and girls from obtaining access to justice and effective remedies to claim violations of their rights, in particular for rural, Maori, and Pacific Island women (CEDAW/C/NZL/CO/8, 25 July 2018, paragraph 13). In light of the lack of legislative provisions fully reflecting the principle of the Convention, the Committee asks the Government to provide information on any specific steps taken with a view to promote and enforce the principle of equal remuneration between men and women for work of equal value, including by ensuring access to justice and effective remedies in the case of pay inequality, in particular for rural, Maori, and Pacific Island women. It asks the Government to provide information on the number, nature and outcome of any cases or complaints concerning pay inequality dealt with by the labour inspectors, the Employment Relations Authority, the Employment Court and any other competent authorities.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government following the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of Business New Zealand and the New Zealand Council of Trade Unions (NZCTU) communicated with the Government’s reports.

Article 1(b) of the Convention. Work of equal value. Legislative developments. The Committee previously noted that the Employment Relations Act (ERA) 2000, the Human Rights Act (HRA) 1993, and the Equal Pay Act (EPA) 1972, do not fully reflect the principle of the Convention, since they limit the requirement for equal remuneration for men and women to the same or substantially similar work. It however noted that, following the 2014 landmark decision of the New Zealand Court of Appeal (Terranova Homes & Care Ltd v. Service and Food Workers’ Union Nga Ringa Tota Inc. (CA631/2013[2014]NZCA516) of 28 October 2014), which concluded that the EPA was not limited to providing for equal pay for the same or similar work, a tripartite Joint Working Group (JWG) was established in 2015 to develop pay equity principles. It previously noted that, following the recommendations made by the JWG, an Employment (Pay Equity and Equal Pay) Bill was introduced to Parliament on 26 July 2017, with the purpose of eliminating and preventing discrimination on the basis of gender in remuneration and other terms and conditions of employment. The Committee previously raised a number of concerns regarding the provisions of the Bill and asked the Government to take steps to ensure that any new legislation fully reflected the principle of the Convention.

The Committee notes the Government’s indication, in its report, that the above mentioned Bill subsequently lapsed. The Government indicates that it reconvened the JWG (called the RJWG) in December 2017, which recommended that the pay equity principles be implemented by amending the existing EPA rather than creating a new Act. Following the recommendations made by the RJWG, the Government introduced the Equal Pay Amendment Bill on September 2018. The NZCTU indicates that it raised a number of concerns regarding the amendments but that, in its view, the provisions of the Bill were broad enough to accommodate the concept of “work of equal value”. The Government also states that the Bill seek to accommodate the concept of “work of equal value”. The Committee welcomes the adoption of the Equal Pay Amendment Act 2020 (2020 No. 45) which entered into force on 6 November 2020. It notes more particularly that the Act provides that an employer must ensure that: (1) there is no differentiation, on the basis of sex, between the rates of remuneration offered and afforded by the employer to employees of the employer who perform the same, or substantially similar, work (section 2AAC(a)); and (2) there is no differentiation, on the basis of sex, between the rates of remuneration offered and afforded by the employer for work that is exclusively or predominantly performed by female employees and the rate of remuneration that would be paid to male employees who have the same, or substantially similar, skills, responsibility, and experience; and who work under the same, or substantially similar, conditions, and with the same, or substantially similar, degrees of effort (section 2AAC(b)). The Act defines work that is or was “predominantly performed by females employees” as work that is currently, or that was historically, performed by a workforce of which approximately 60 per cent or more members are female (section 13F(2)).

The Committee notes that the Equal Pay Amendment Act 2020 further: (1) distinguishes between an equal pay claim (in case of alleged violation of section 2AAC(a)), a pay equity claim (in case of alleged violation of section 2AAC(b)) and an unlawful discrimination claim (in case of discrimination based on sex regarding other terms and conditions of employment than remuneration, pursuant to section 2A; (2)> offers the employee who may allege one of these three kinds of claims a choice of proceedings between a claim under the EPA, a complaint under the HRA 1993 or an application to the Authority for resolution of a personal grievance under the ERA 2000 (section 2B); while (3) providing that in case of a pay equity claim, instead of having to go through the courts, employees can use a more simple and accessible pay equity bargaining process which may lead to a pay equity settlement. The Committee notes that pay equity claims can be raised by an individual employee, a union on behalf of one or more employees, or multiple unions acting jointly on behalf of the members of each union, and that union-raised claims can be raised with multiple employers. Copies of pay equity settlements shall be delivered to the Ministry of Business, Innovation and Employment (MBIE) for statistical and analytical purposes (sections 13A to 13ZZG). In that regard, the Committee notes that, in Business New Zealand’s view, this is a better course to take than having the parties follow the litigation path which has too often resulted in a long drawn out process and if, in time, the plaintiffs are successful, damaging consequences for employers.

While acknowledging the efforts made by the Government to introduce in its national legislation new provisions defining “pay equity” and providing for a simplified pay equity bargaining process, the Committee notes that the Government did not seize this opportunity to take into consideration the concerns previously expressed by the Committee. Noting the Government’s statement that the Equal Pay Amendment Act 2020 reflects the principle of the Convention, the Committee wishes to draw the Government’s attention to the fact that the Act continues to restrict equal rates of remuneration to: (1) “the same, or substantially similar, work” (both in the case of an equal pay claim and a pay equity claim, e.g. sections 2AAC(a), 13B, 13E, 13ZE) ; or (2) “the same, or substantially similar, skills, responsibility, and experience” and “work under the same, or substantially similar, conditions, and with the same, or substantially similar, degrees of effort” (e.g. sections 2AAC(b) and 13ZE). It further notes that the provisions of the Act limit the scope of comparison to “the employer of the employee” (for an equal pay claim, section 2AAC(a)) or to “another employee of the same employer” (for a pay equity claim, section 13B), except when a union raises a multi-employer pay equity claim (sections 13B and 13E(3)). While noting the Government’s statement that it will publish guidance for interpreting the meaning of “substantially similar” skills, responsibilities, working conditions and/or degrees of effort, the Committee is bound to repeat that the concept of “work of equal value” that lies at the heart of the Convention permits a broad scope of comparison, including but going beyond equal remuneration for “equal”, “the same” or “similar” work, and also encompasses work that is of an entirely different nature which is nevertheless of equal value. It follows that the jobs to be compared on the basis of objective factors (such as skills, efforts, responsibilities, conditions of work, etc.) may involve different types of skills, responsibilities or conditions of work, that can nevertheless be of equal value in its totality. As such, the principle of the Convention is not equivalent to the concept of “pay equity” as enshrined in the Equal Amendment Act 2020, nor is it reflected fully in the provision relating to “equal pay for the same, or substantially similar work” or for “the same, or substantially similar” skills, responsibilities, working conditions and/or degrees of effort. Furthermore, the Committee recalls that the application of the principle of equal remuneration for men and women for work of equal value should not be limited to comparisons between men and women in the same company, as it allows for a much broader comparison to be made between jobs performed by men and women in different places or enterprises, or between different employers (see General Survey on the fundamental Conventions, 2012, paragraphs 676–679 and 697-698). Finally, the Committee notes that, in Business New Zealand’s view, the aim of the Convention at the time of its adoption was to ensure that women received the same pay as men, and not that they should be paid what was paid to men doing some entirely different job. Business New Zealand adds that rates of pay are far better left to the market to determine. In that regard, the Committee wishes to recall that while “value” is not defined in the Convention, it refers to the worth of a job for the purpose of computing remuneration. “Value” in the context of the Convention indicates that something other than market forces should be used to ensure the application of the principle, as market forces may be inherently gender-based (see the 2012 General Survey, paragraph 674). The Committee therefore asks the Government to provide information on any steps taken or envisaged to give full legislative expression to the principle of the Convention with a view to ensuring that when determining whether two jobs are of equal value: (i) the overall value of the job is considered without limiting the comparison to «the same or substantially similar» work, conditions, skills, responsibility, experience and/or degrees of effort, and the definition allows for jobs of an entirely different nature to be compared free from gender bias; and (ii) the scope of comparison goes beyond the same company. It asks the Government to provide information on the application of the Equal Pay Amendment Act 2020 in practice, including on the number and nature of pay equality settlements agreed on, as well as a copy of the guidance provided by the Government for interpreting the Act. The Committee also asks the Government to provide information on any judicial or administrative decisions relating to the principle of the Convention, as well as on the manner in which it is ensured that when applying the Equal Pay Act, the Employment Relations Act and the Human Rights Act, the broader concept of work of equal value enshrined in the Convention is taken into account.

Occupational gender segregation and pay equity settlements in the public sector. The Committee previously noted the need for measures to address the undervaluation of work performed by women in the care sector, as well as in other sectors which predominantly employ women, including special education support and social work. The Committee takes note of the adoption of the Public Service Act 2020 (2020 No. 40), and notes more particularly that sections 80 to 84 of the Act, as amended by the Equal Pay Amendment Act 2020, regulate pay equity claims and the pay equity bargaining process in the public service. In that regard, it notes the NZCTU’s indication that it supports the introduction of pay equity claims in the public sector and is involved in tripartite arrangements to oversee and assist in resolving these claims. As regards pay equity settlements in the public sector, the Committee previously noted that the Care and Support Workers (Pay Equity) Settlement Act 2017 specifies minimum hourly wage rates payable by employers with a view to redress past undervaluation of care and support work, which is mainly carried out by women. It notes the Government’s statement that, as a result of the settlement which applies to more than 55,000 workers, home care and disability sector workers received pay rises of between 15 and 50 per cent depending on their qualifications and experience. It further notes that, while mental health and addiction support workers were excluded from the settlement, the Government together with trade unions and employers agreed in July 2018 to extend the settlement to those workers, who are predominantly women. In that regard, the Committee notes that the Support Workers (Pay Equity) Settlements Amendment Act 2020 came into force on 7 August 2020, now covering mental health and addiction support workers. Regarding pay equity claims lodged by the education support workers employed by the Ministry of Education, and by the statutory social workers employed by the Ministry of Children, the Committee notes the Government’s statement that both pay equity claims were settled in 2018 for these workers who have been subject to historic gender-based undervaluation, thus agreeing on an increase of their minimum hourly rate. The Committee welcomes the pay equity settlements reached in public sector occupations which predominantly employ women. It notes that the Government adds that seven pay equity claims from three unions are ongoing, covering approximately 62,000 employees in four occupational groups in the public health sector (District Health Boards – DHB) where women are predominantly employed, namely nursing, midwifery, clerical and allied health and technical roles. It notes that according to the DHB Employed Workforce Quarterly Review, at the end of 2018, women represented about 89 per cent of DHB nurses; 78 per cent of corporate, clerical and other staff; and 81 per cent of DHB allied and scientific staff. The Committee notes that Business New Zealand again highlights that most women seeking pay equity settlements work in the public sector, among others as nurses or teachers, where the issue does not relate to discrimination but funding availability. Business New Zealand adds that some jobs are less well-paid than others but that this will always be the case and often reflects the nature of the industry, and that arbitrary increases, through pay equity settlements with no increase in productivity, have inevitable adverse effects: some employees lose their jobs and some businesses shut, because the increase is unaffordable. The Committee notes that the Government disagrees with the suggestion that pay equity settlements represent general wage claims, rather than pay equity claims. With regard to measures to address occupational gender segregation and its impact on the gender pay gap, the Committee refers to its comments under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). In light of the absence of legislation fully reflecting the principle of the Convention, the Committee asks the Government to provide information on the measures taken to ensure that pay equity settlements address the issue of undervaluation of work performed by women in line with the principle of equal remuneration between men and women for work of equal value. It further asks the Government to provide information on the pending pay equity claims in the public sector, in particular in the health sector. The Committee also asks the Government to indicate any other measures taken to address the undervaluation of work performed by women in sectors in which they are predominantly employed.

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

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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.

Articles 1 and 2 of the Convention. Gender pay gap. The Committee notes from the statistical information provided by the Government with its report that, in the June 2015 quarter, women’s median hourly earnings were 21.23 New Zealand dollars (NZD) compared with NZD24.07 for men, with a pay gap of 11.8 per cent. The Quarterly Employment Survey for the same quarter further indicates that women’s earnings in the public sector represented 81 per cent of men’s earnings, while in the private sector they accounted for 84 per cent. When comparing average weekly earnings by gender and ethnicity, data show that earnings rates are much lower for ethnic groups other than European and, in particular, that the gender pay gap for Maori and Pacific Island women in relation to European men’s average weekly earnings was 40.8 per cent and 43 per cent, respectively. The Committee notes the Government’s indication that, while a downward trend of the pay gap has generally been observed, this has stabilized in the last six years and reducing it further is a priority for the Government. The Committee also notes Business NZ’s observation that statistical data tend to provide a misleading picture of women’s employment, as they do not give an indication of relevant factors, such as the occupational level at which women are working, areas of study, and years of experience, among others. Business NZ also notes that absences during employment are another factor that is traditionally not fully considered in calculating wage differences. The Committee also notes the NZCTU’s observation that the figures provided in the Government’s report do not account for part-time work, where most women are engaged with lower than average hourly earnings. The Committee notes that, when full- and part-time work are combined, the gender gap for weekly earnings widens to 28.6 per cent. According to the NZCTU, measures are needed to promote a fairer distribution of family responsibilities between men and women and facilitate the reconciliation between family and work obligations. The Committee further notes that in Business NZ’s view emphasis should be placed on better education and training opportunities for women together with encouragement to aspire to higher levels of responsibility. In this regard, it notes the information provided by the Business NZ on measures directed at providing trade training and employment opportunities for Maori and Pacific Island women. The Committee asks the Government to indicate the measures adopted or envisaged to address the gender pay gap and its underlying causes, including measures directed at addressing gender pay gaps between, and within, ethnic groups, and their impact. The Committee also requests the Government to continue to measure the nature and the extent of the gender pay gap, including its underlying causes, and to provide statistics on the gender pay gap and its evolution in the various sectors and occupations, disaggregated by ethnicity and sex.

Application of the principle in the public service. The Committee notes from the 2015 Human Resources Capability (HRC) Survey of Public Service Departments, that the gender pay gap in the public service is 14 per cent. It also notes that gender pay gaps by occupation group ranged from 13.7 per cent for managers to 1.6 for contact centre workers. The Committee notes the Government’s indication that varying measures have been adopted with a view to reducing the gender pay gap in the public sector. These include the establishment of a tripartite Working Group tasked with developing principles for dealing with claims of equal pay for work of equal value under the Equal Pay Act, setting up leadership and talent work programs directed at women, and developing flexible workplaces and working arrangements to better accommodate caring responsibilities of men and women. The Committee notes that in the NZCTU’s view the latter initiatives have little impact in practice on narrowing the pay gap. The NZCTU indicates that flexible work requests in the public sector are often refused and flexibility, in some cases, is merely translated into a reduction of working hours and, consequently, of wage levels for the concerned workers. In this regard, the Committee notes the Government’s reply that a survey of workers in 2012 found that just over half of respondents had access to flexible hours and, according to the most recent survey of employers, the majority of employers (at least 95 per cent) who received a request for flexible working arrangements agreed to all or some of the requests received. The NZCTU also points out the need for a focus on increasing wages in traditionally female-dominated sectors and more proactive measures on the part of the Ministry of Women’s Affairs to promote gender equality. The Committee asks the Government to provide specific information on the application in practice of the measures taken to reduce the gender pay gap in the public sector, including the measures taken to address its underlying causes, and their impact. The Government is also asked to continue to provide statistical information on the gender pay gap in the public service by occupational group.

Collective agreements. The Committee refers to its previous comments and notes the Government’s indication that the Employment Relations Amendment Act, 2014, aims to increase flexibility in collective bargaining. It also notes that according to the NZCTU the amendments introduced into the Employment Relations Act would affect particularly women, and Maori or Pacific Island people, in the light of the ability recognized to employers with less than 20 employees to unilaterally reduce pay and hours of work. The Committee encourages the Government to assess, in cooperation with workers’ and employers’ organizations, the impact that the amendments introduced in the Employment Relations Act may have on addressing the gender pay gap, and in particular on the role of collective agreements in addressing wage inequality.

Enforcement. The Committee notes the observations by the NZCTU that a proactive approach in monitoring pay equity and equal pay claims would be needed and the Government’s reply that initiatives to monitor or support pay equity may be considered after the discussion of the Joint Working Group’s recommendations is concluded. The Committee asks the Government to provide information on any specific steps taken with a view to strengthen the application of the Convention following the endorsement of the Joint Working Group’s recommendations, including as regards monitoring of equal pay, and to continue to supply information on any cases related to the principle of the Convention dealt with by labour inspectors, the Employment Relations Authority, the Employment Court and any other competent authorities.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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(b) of the Convention. Work of equal value. The Committee refers to its previous comments in which it has been drawing the Government’s attention to the fact that the Employment Relations Act (ERA) 2000, the Human Rights Act (HRA) 1993, and the Equal Pay Act (EPA) 1972, do not fully reflect the principle of the Convention, since they limit the requirement for equal remuneration for men and women to the same and substantially similar work. In its previous observation, the Committee noted that the New Zealand Court of Appeal, in Terranova Homes & Care Ltd v. Service and Food Workers’ Union Nga Ringa Tota Inc. (CA631/2013[2014]NZCA516 of 28 October 2014), reached the conclusion that the EPA was not limited to providing for equal pay for the same or similar work. The Court held 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, and take into account any evidence of systemic undervaluation of the work concerned. Following the judgment by the Court of Appeal, the Employment Court was then expected to state general principles to be observed for implementing equal pay with a view to providing guidance for parties in negotiations, as provided for in section 9 of the EPA.

The Committee notes the Government’s indication that all pay equity claims under the EPA are currently on hold as a result of the agreement reached in October 2015 between the Government and the social partners on the establishment of a Joint Working Group (JWG) to “develop principles for dealing with claims of equal pay for work of equal value” under the EPA. The Committee notes that the JWG has formulated a set of recommendations, which are under consideration by the Government. According to NZCTU’s observations, these recommendations would eventually lead to amendments of the EPA and the ERA. The Committee notes that indeed an Employment (Pay Equity and Equal Pay) Bill was introduced to Parliament on 26 July 2017, with the purpose of eliminating and preventing discrimination on the basis of gender in remuneration and other terms and conditions of employment. The Bill distinguishes between equal pay claims or unlawful discrimination (non-remuneration) claims (section 11). It notes that pay equity claims relate to work predominantly performed by women when there are reasonable grounds to believe that the work has been historically undervalued and continues to be subject to systemic sex-based undervaluation (section 14(1) and (2)). The Committee notes that the Bill continues to restrict “equal pay claims” to “the same, or substantially similar, work” (sections 8(1)(a) and 9(1)(a) and 9(2)), and that “pay equity claims” relate to elements of sex-based differentiation in the rates of remuneration if the rate is less than that which would be paid to men employees “with the same, or substantially similar skills, responsibilities, and experience; and performing work under the same, or substantially similar, conditions; and performing work that involves the same, or substantially similar, degrees of effort” (sections 8(1)(b) and 8(3) and sections 9(1)(c) and 9(3)).

The Committee wishes to highlight once again that the concept of “work of equal value” that lies at the heart of the Convention permits a broad scope of comparison, including but going beyond equal remuneration for “equal” the “same” or “similar” work, and also encompasses work that is of an entirely different nature which is nevertheless of equal value. It follows that the jobs to be compared on the basis of objective factors (such as skills, efforts, responsibilities, conditions of work, etc.) may involve different types of skills, responsibilities or conditions of work, that can nevertheless be of equal value in its totality. As such, the principle of the Convention is not equivalent to the concept of “pay equity” as enshrined in the Bill, nor is it reflected fully in the provision relating to “equal pay for the same, or substantially similar work”. The Committee asks the Government to provide information on any developments related to the endorsement of the recommendations elaborated by the JWG and any follow-up actions, including possible amendments of the current legislation with a view to giving full expression to the principle of equal remuneration between men and women for work of equal value. In this context, the Committee asks the Government to take steps to ensure that the revised legislation, including the EPA, will fully reflect the principle of the Convention. The Committee also reiterates its request to the Government to provide information on how it is ensured that when applying the ERA 2000, and the HRA 1993, the broader concept of work of equal value enshrined in the Convention is taken into account. The Government is also asked to continue to provide information on any other judicial or administrative decisions relating to the principle of the Convention.

Occupational segregation and gender pay gap. In its previous observation, the Committee noted the need for measures to address the undervaluation of work performed by women in the care sector, as well as in other sectors which predominantly employ women, including special education support and social work. The Committee notes from the observations submitted by the NZCTU that, building on the judgment of the Court of Appeal mentioned above, unions representing care and support workers in the health and disability sector have submitted more than 2,500 individual equal pay claims to the Employment Court under the EPA. The Committee notes that, in 2015, the Government authorized the Ministry of Health to start negotiations with the concerned actors to address the equal pay claims pending in the Employment Court and, in 2017, an agreement was reached between the parties. The Committee notes, in particular, that the Care and Support Workers (Pay Equity) Settlement Act 2017 specifies minimum hourly wage rates payable by employers to care and support workers, and requires employers to provide assistance to care and support workers to attain qualifications. The Committee also notes the Government’s indication that, in 2014, the Ministry of Health entered into negotiations with the home and community support sector, the district health boards and the unions in order to address claims concerning travel issues and, in particular, travel between clients, which affect pay levels. The negotiations have resulted in a settlement allowing all care and support workers in the home and community support sector to be paid for travel time and mileage, and in the adoption of the Home and Community Support (Payment for Travel between Clients) Settlement Act 2016. The Committee notes, in particular, that the settlement requires also looking into the transition of the workforce into a regularized workforce with guaranteed hours and appropriate training for qualifications, among other things. The Committee notes that NZCTU further refers to equal pay claims lodged by the union representing education support workers employed by the Ministry of Education, and by the public sector union – the Public Service Association (PSA) – on behalf of social workers working in Child Youth and Family Services. The NZCTU also indicates that negotiations have been ongoing for some time with union representatives of the clerical workers in the public health sector in the South Island District Health Board, but they have failed to make any progress. The Committee notes the observations submitted by the Business NZ, which recalls that care work was part of the job re-evaluation exercise carried out when the EPA was introduced in 1972 and highlights that the low pay level in this sector “is not so much a matter of undervaluation as of funding availability”, as there is a need to take into account users’ ability to meet the costs of the services concerned. With regard to measures to address occupational gender segregation and its impact on the gender pay gap, the Committee also refers to its comments under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Committee wishes to draw the Government’s attention to the fact that, while the Convention is flexible regarding the measures to be used and the timing in achieving its objective, it allows no compromise in the objective to be pursued (General Survey on the fundamental Conventions, 2012, paragraph 670). While welcoming the settlements reached, the Committee, with a view to ensuring that wage settlements agreements address the issue of undervaluation of work performed by women in line with the principle of the Convention, asks the Government to provide information on the job evaluation methods used in the context of these settlements, and on the outcome of the pending equal pay cases submitted on behalf of the education support workers, social workers and clerical workers. The Committee also asks the Government to indicate any other measures taken to address the undervaluation of work performed by women in sectors in which they are predominantly employed.

Article 3. Job evaluation in the private sector. Referring to its previous observation, the Committee notes the Government’s indication that no assessment has so far been undertaken on the use made by the private and public sectors of the pay and employment equity tools and resources available. In this regard, the Committee notes the information provided by Business NZ that many private sector employers make use of the various tools available, including the factor-based Hay assessment system. Business NZ indicates that these evaluations focus on the enterprise since evaluations across organizations risk undermining competition. The Committee also notes the NZCTU’s view that stronger support from the Government is needed, including relevant training, in order to promote the use of the available pay and employment equity tools, as has been recommended by the JWG. The Committee recalls that where women are more heavily concentrated in certain sectors or occupations, there is a risk that the possibilities of comparison at the enterprise level or establishment level will be insufficient. Furthermore, the Committee also stresses the importance of ensuring that whatever methods are used for objective job evaluation, they are free from gender bias, and that the selection of factors for comparison, the weighing of such factors and the actual comparison carried out are not discriminatory, either directly or indirectly (General Survey, 2012, paragraphs 698, 700–701). The Committee asks the Government to indicate any measures taken or envisaged with a view to promoting the use of objective job evaluation methods that are free from gender bias, including targeted training on the use of existing pay and employment equity tools and resources for workers and employers and their organizations in the private sector, and awareness-raising initiatives on the concept of “work of equal value”.

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

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

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.

Articles 1 and 2 of the Convention. Gender pay gap. The Committee notes from the website of the Ministry of Women’s Affairs (MWA) that when comparing median hourly earnings of full-time workers the gender pay gap is at 9.9 per cent in 2014 (New Zealand Income Survey (NZIS)). The Committee notes that as of March 2013, 33.6 per cent of women were employed part time. When comparing all workers, the Government’s report indicates that gender pay gaps in 2012 were highest among Community and Personal Service workers (41.4 per cent) and Technicians and Trade workers (37.1 per cent), while gender pay gaps among Managers and Professionals (28.4 per cent) and Clerical and Administration workers (27.9 per cent) were lower. The Committee also notes from the MWA’s report Changes in Women’s Earnings (2013) that, while occupational segregation has decreased in most highly skilled and higher paid occupations, it has increased in trades and unskilled occupations; Maori and Pacific Island women in particular are concentrated in specific fields of study leading to industry sectors with lower pay. Information provided by the Government continues to indicate that significant differences exist when comparing the average weekly earnings of Maori and Pacific Island women as a percentage of those of European men. According to the Government, factors underlying the gender pay gap are complex and include occupational segregation, patterns of employment, as well as unexplained factors including discrimination and unconscious bias. The Committee notes the various measures taken by the National Advisory Council on the Employment of Women (NACEW), the MWA, and Parliament to promote the application of the Convention. The Committee asks the Government to continue to provide statistics on the gender pay gap in the various sectors and occupations, disaggregated by ethnicity and sex, and information on measures adopted to address the widening gender pay gap within trade and unskilled occupations. The Committee also asks the Government to continue to provide information on measures adopted or envisaged to address gender pay gaps between, and within, ethnic groups, as well as other measures adopted to address the underlying causes of the gender pay gap.

Applying the principle in the public service. The Committee notes that according to the 2012 Human Resources Capability (HRC) Survey of Public Service Departments, the gender pay gap narrowed from 15.4 per cent in 2009 to 13.7 per cent in 2012, the lowest since the Survey was introduced. Gender pay gaps for occupational groups ranged from 2.7 per cent for Contact Centre Workers to 13.4 per cent for Managers, with a higher than average proportion of women working in the lower paid occupational groups and a higher than average proportion of men and women working in the higher paid occupational groups. Regarding pay and employment equity reviews in the public health sector, the Committee notes the Government’s indication that district health boards have taken measures to attract and retain more women in their workforce including the formalization of commitments to provide family-friendly workplaces in a number of employment contracts and providing increased opportunities to participate in decision-making. The Committee notes the range of measures adopted to promote women’s access to all levels of the public sector. The Committee notes, however, from the Human Rights Commission’s Census of Women’s Participation 2012 that, out of 32 departments, 30 have gender pay gaps, ranging from 2.77 per cent in the Department of Corrections to 42 per cent in the Ministry of Defence. The Committee asks the Government to continue to provide statistical information on the gender pay gap in the public service by occupation group, and to provide specific information on measures taken to address the underlying causes of the gender pay gap in the public service. The Committee also asks the Government to continue to provide information on measures taken to promote women’s access to all levels of the public sector, with a view to reducing the gender pay gap, including any action taken to implement recommendations made by pay and employment equity reviews.

Collective agreements. The Committee notes that the NZCTU expresses concern that the Employment Relations Amendment Bill, currently awaiting a third reading in Parliament, might weaken collective bargaining and that this might impact the gender pay gap. Noting the Government’s statement that the Employment Relations Amendment Bill could be subject to further changes, the Committee encourages the Government to take the opportunity to evaluate any impact the Bill may have on addressing the gender pay gap, and in particular on the role of collective agreements in addressing wage inequality.

Enforcement. The Committee notes the Government’s indication that it has an appropriate legal framework to deal with pay equality issues including informally through the Ministry of Business, Innovation and Employment’s mediation services, through the Employment Relations Authority, and through the Employment Court, as was the case with the recent decision in Service and Food Workers Union Nga Ringa Tota Inc. and Bartlett v. Terranova Homes and Care Limited [2013] (NZEmpC 51 ARC 63/12). Noting the NZCTU’s statement that the case before the Employment Court was the first substantial case under the Equal Pay Act since 1986, the Committee asks the Government to continue monitoring the effectiveness of current procedures in addressing equal pay claims, and to provide information in this regard, including on any cases related to the principle of the Convention dealt with by labour inspectors, the Employment Relations Authority, the Employment Court and any other competent authorities.

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

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.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the observations by the New Zealand Council of Trade Unions (NZCTU) and by Business New Zealand (Business NZ) attached to the Government’s report.

Gender pay gap. The Committee notes from the Government’s report that in 2009 the gender earnings gap stagnated at around 12 per cent with a gender earnings gap of 14.1 per cent in the private sector and 18.4 per cent in the public sector. Significant gender differences persist when comparing the average hourly earnings of Maori and Pacific women as a percentage of those of European/Pakeha men (72.1 per cent and 70.5 per cent, respectively, in 2009). The Government indicates that the Ministry of Women’s Affairs (MWA) is working to improve the number of women in leadership positions. The activities include: a nominations service which promotes the benefits of including women on public and private sector boards and nominates women for public sector boards and committees; a “Women on Board” initiative developed by the MWA with Business NZ and the Institute of Directors in New Zealand; and workshops promoting women in leadership in the local government and tertiary sector undertaken by the Equal Employment Opportunities Commissioner. The Committee also notes the Government’s indication that the Pay and Employment Equity Taskforce identified that the grouping of women into lower paid occupations significantly contributed to the gender pay gap; in 2008, the MWA commissioned research on young people’s career decisions and gender segregation in trades, as part of its plan to decrease gender segregation in the workplace; the study found that gender stereotypes continue to have a major influence on young people’s choices, making some career paths and employment options more or less accessible to young women. It further notes the Government’s indication that the National Advisory Council on the Employment of Women (NACEW) has examined the prevalence of women in part-time work (35 per cent of women in the workforce work part-time). In 2008 and 2009, the NACEW commissioned and completed a two-phase project on women and part-time work, which compared quality of work for both full-time and part-time workers; the project aimed at identifying the characteristics, pay and working issues for female part-time employees aged 25–54 years in low-paid jobs in particular in retail, cleaning and residential care. The Committee asks the Government to continue to provide information on the implementation of the activities undertaken by the various bodies, and role of workers’ and employers’ organizations, to promote the application of the Convention, as well as the results achieved. The Committee also asks the Government to provide specific information on the measures taken or envisaged to address the issues of female concentration in part-time work and in lower paid occupations. Further, please continue to provide statistics on the female–male earnings gap, including in high-level posts, and to supply additional information on how current measures aimed at reducing the gender earnings gap are addressing the important gender differences between, and within, ethnic groups with respect to average hourly earnings.

Public sector. The Committee recalls the pay and employment equity reviews undertaken in the district health boards (DHBs) and in a sample of schools in the compulsory education sector. The Committee notes the Government’s indication that the average salary of women was 58,393 New Zealand dollars (NZD) compared with NZD68,983 for men in the public sector in 2009; the largest pay gap by occupation was between male and female managers at 13 per cent. Recalling that a bipartite National Pay and Employment Equity Response Plan for DHBs had been finalized, the Committee once again asks the Government to provide a copy of the Plan and information on its implementation. The Committee also asks the Government to provide information on any measures taken to promote women’s access to all levels of the public sector, including higher paying jobs.

Remedial pay increases in the private sector. The Committee recalls its previous comments with respect to concerns expressed by Business NZ on difficulties encountered by employers in the private health sector in matching remedial pay increases granted to employees in public institutions. The Committee once again asks the Government to monitor any specific difficulties encountered by private health sector employers in matching remedial pay increases, and provide information on the manner in which this is being addressed.

Enforcement. The Committee notes the Government’s indication that no questions of principle relating to the Convention have been considered by the Employment Relations Authority or the courts. Business NZ also suggests that the low number of equal pay claims taken by individuals is probably an indication that most women accept that they are fairly paid. Recalling that the absence of complaints or findings of pay inequalities is likely to result from the lack of an appropriate legal framework, the lack of knowledge of the relevant rights among workers as well as those responsible for monitoring or enforcing the law, or difficulties in accessing effective dispute resolution mechanisms, the Committee asks the Government to continue monitoring whether the current procedures are sufficient to address equal pay claims in an effective manner, and to provide information in this regard.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments by the New Zealand Council of Trade Unions (NZCTU) and by Business New Zealand (Business NZ) attached to the Government’s report.

Work of equal value. The Committee has been commenting for a number of years on the fact that the Employment Relations Act, 2000 (ERA), the Human Rights Act, 1993 (HRA), and the Equal Pay Act, 1972 (EPA), limit the requirement for equal remuneration for men and women to the same and similar work, which is more restrictive than the concept of “equal value” provided in the Convention. The Committee notes the Government’s indication that no laws or regulations concerning the Convention were enacted or amended during the reporting period. The Government does not, however, provide any information, as previously requested by the Committee, to indicate that the legislation concerning equal remuneration is being interpreted to apply the broader concept of work of equal value. Business NZ indicates that, in practice, men and women receive the same pay for the same work.

The Committee notes that the NZCTU expresses concern at the continuing lack of legislative mechanisms to operationalize and implement the principle of equal pay for work of equal value. It also points to the closure of the Pay and Employment Equity Unit and the termination of its work programme, as well as the discontinuing of pay investigations, as discussed below, as bringing to an end, and indeed undermining, any progress in this area. The Committee also notes the Government’s acknowledgement that improvements in the gender pay gap have been slow, with very little change in the pay gap over the last decade. The Committee notes further that women are concentrated into lower paid sectors. In the context of the continuing gender pay gap and occupational gender segregation, as well as what appears to be a recent rolling back of measures aimed at promoting pay equity, the Committee considers that giving full legislative effect to the principle of equal remuneration for men and women for work of equal value is of particular importance to ensure the effective application of the Convention. The Committee therefore asks the Government to take steps to give full legislative effect to the principle of equal remuneration for men and women for work of equal value, and to provide information on the specific measures taken in this regard. The Committee also asks the Government to provide information on any judicial decisions relating to the principle of the Convention.

Applying the principle in the public service. The Committee notes the Government’s indication that the gender pay gap is wider in the public service than in the private sector (at 15 per cent and 11 per cent, respectively, in 2009), and that no information is available regarding why this difference exists. The Committee recalls that pay and employment equity reviews and response plans had been undertaken in the 39 departments, and that the findings of the reviews carried out by mid-2008 indicated the following: a gender pay gap ranging from 3 to 25 per cent, higher starting rates and performance pay for men, an under-evaluation of women’s work, an under-representation of women in management and their concentration in administrative and clerical work with limited career paths, difficult career advancement for part-time workers, and workplace cultures that limited women’s contributions. It notes the Government’s indication that: the Five-Year Plan of Action on Pay and Employment Equity, and the pay and employment equity reviews in the public sector concluded in 2009; that the State Services Commission has a statutory responsibility to promote, develop and monitor equal opportunities policies and programmes for the public service; and that the Ministry of Women’s Affairs has taken on a policy and advisory role with respect to gender and pay equity issues.

In this connection, the Committee notes the observations of the NZCTU that: due to the disestablishment of the Pay and Employment Equity Unit and the discontinuation of the pay and employment equity reviews, pay investigations that had been undertaken for two female-dominated occupations (special education support workers and social workers) were immediately affected; and that the discontinuation of the pay investigations removed policies and processes which underpinned a strategic and comprehensive approach to improving pay and employment equity. In response, the Government indicates that it has pledged continued support for the implementation of the public service departments’ pay and employment equity response plans, excluding pay investigations, and is currently focused on providing support for public service chief executives, boards of trustees and chief executives in the public education and health sectors to ensure that they continue to address and respond to any identified gender inequalities. The Committee asks the Government to take measures to identify and address the underlying causes of the wider pay gap in the public service. The Committee asks the Government to provide information on any measures taken by the State Services Commission and the Ministry of Women’s Affairs, with a view to the promotion and application of the principle of equal remuneration for men and women for work of equal value in the public service, and the impact thereof. Please also provide information on any action taken to implement the recommendations made by the pay and employment equity reviews, as well as the results achieved by the implementation of the public services departments’ pay and employment equity response plans.

Job evaluation in the private sector. The Committee recalls the need for governments to promote objective job evaluation methods in both the private and public sectors to ensure gender equality in the determination of remuneration. It notes the Government’s indication that the Equitable Job Evaluation Tool is currently available for employers both in the public and private sectors through the Department of Labour’s website; for receiving the toolkit, employers are required to report back on the results from their usage of the tool. The Committee also notes the comments by Business NZ that the value to be attributed to a job is a highly subjective concept, with the value to be attributed to a particular job likely to vary depending on the biases of the person carrying out the evaluation. Business NZ also states that any arbitrary re-evaluation, if accompanied by a requirement to pay more as a consequence, can only lead to job loss. The Committee asks the Government to provide detailed information on any measures taken to promote the use of the Equitable Job Evaluation Tool both in the public and private sectors, and on any other measures taken to ensure that the value of jobs is determined objectively and free from gender bias. It also asks the Government to provide information on 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.

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

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Gender earnings gap. The Committee notes from the Government’s report that in 2007 the gender earnings gap stagnated at around 13.5 per cent with a gender earnings gap of 16.7 per cent in the private sector and 18.3 per cent in the public sector. Significant gender differences persist when comparing the average hourly earnings of Maori and Pacific women as a percentage of those of European/Pakeha men (69.7 per cent and 70.5 per cent, respectively, in 2007). The Committee further notes the comments of Business New Zealand (Business NZ) that much of the gender earnings gap is attributable to the kind of jobs women choose to undertake. In this regard, the Committee notes with interest the extensive information provided by the Government on the measures being taken to promote work–life balance, the Working for Families Scheme, and the activities supported by the Equal Employment Opportunities Commissioner, the Equal Employment Opportunities Trust, and the Advisory Council on the Employment of Women. The Committee also notes that research is being undertaken by the Ministry for Women’s Affairs (MWA) on occupational segregation as a major factor contributing to the gender earnings gap, which will inform further policy work. The Committee also welcomes information from the New Zealand Council of Trade Unions (NZCTU) on the union initiatives to implement the Convention, such as the job evaluation exercise comparing community support workers and health/therapy assistants, and the Multi-Employer Collective Agreements settled by the New Zealand Nurses Organisation and Service and Food Workers Union, and their efforts to negotiate such an agreement for older care workers. The Committee welcomes these initiatives and encourages the Government to continue to provide information on the implementation of the activities undertaken by the various bodies and in cooperation with the workers’ and employers’ organizations, to promote the application of the Convention. The Committee also asks the Government to continue to provide statistics on the female–male earnings gap, including in high-level posts, and to supply additional information on how current measures aimed at reducing the gender earnings gap are addressing the important gender differences between, and within, ethnic groups with respect to average hourly earnings.

Public sector. The Committee notes the pay and employment equity reviews undertaken in the district health boards (DHBs) and in a sample of schools in the compulsory education sector. It also notes that reviews for tertiary education institutions and kindergartens started in 2008, and that the national pay and employment equity response plan for the public health sector is being finalized. In November 2007 the Government also extended the pay and employment equity policy to some Government-funded outsourced services in the public health sector, and will consider extending its policy to the public service, the public education sector and the rest of the public health sector following a report to Cabinet in December 2009. With respect to funding of remedial pay settlements in situations where DHBs contract for certain services, the Committee notes Business NZ’s concern regarding the manner in which refunding has been managed, and the Government’s reply that the Plan of Action includes a structured process for managing remedial claims and settlements that may arise through pay and employment equity reviews and pay investigations. According to the Government, DHBs should ensure that pay and employment equity extends to all employees who are employed to deliver services that DHBs have the operational obligation to ensure. The Committee asks the Government to continue to provide information on the pay and employment equity reviews and response plans in the public education and health sectors, including on the action taken to follow-up on some of the responses. Noting that a bipartite National Pay and Employment Equity Response Plan for DHBs has recently been finalized, the Committee asks the Government to provide a copy of the Plan and information on its implementation.

Article 3. Job evaluation in the private sector. With respect to efforts to promote objective job evaluation in the private sector, the Committee notes the views expressed by Business NZ that a decision to extend the Action Plan on Pay and Employment Equity to this sector would be entirely inappropriate. The Committee notes the Government’s reply that further advice regarding phase three of the Action Plan, which concerns the private sector and non-government organizations, will be provided to Cabinet in 2010. At the same time, the Government indicates that while the use of the Equitable Job Evaluation Tool and the Job Evaluation Standard is voluntary, the Plan of Action provides mechanisms for, and supports and promotes, the effective implementation of existing pay and employment equity legislation, which applies to the private sector. The Committee recalls that for the purpose of ensuring gender equality in the determination of remuneration, Governments may need to promote objective job evaluation methods in both the private and public sectors. The Committee asks the Government to provide information on further developments regarding the extension of the Action Plan on Pay and Employment Equity to the private sector.

Remedial pay increases in the private sector. With respect to concerns expressed by Business NZ on difficulties encountered by employers in the private health sector in matching remedial pay increases granted to employees in public institutions, the Committee notes the Government’s reply that if remedial pay settlements in the public sector lead to pay claims in the private sector, they will be addressed through the normal bargaining process and under the provisions of the Employment Relations Act. The Committee asks the Government to monitor any specific difficulties encountered by private health sector employers in matching remedial pay increases, and provide information on the manner in which this is being addressed.

Enforcement. The Committee notes the Government’s statement that due to the absence of relevant cases dealt with by the courts or tribunals, it is not in a position to assess the impact of current procedures for bringing equal pay claims. Recalling the low number of equal pay cases brought before competent bodies, the Committee asks the Government to continue to monitor whether the current procedures are sufficient to address equal pay claims in an effective manner.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the extensive information in the Government’s report and the comments by the New Zealand Council of Trade Unions (NZCTU) and by Business New Zealand (Business NZ) attached to the Government’s report.

Articles 1 and 2 of the Convention. Equal pay legislation. The Committee recalls that the Employment Relations Act, 2000, (ERA), the Human Rights Act, 1993, (HRA) and the Equal Pay Act, 1972, (EPA) limit the requirement for equal remuneration for men and women to the same and similar work, which is more restrictive than the concept of “equal value” provided for in the Convention. Furthermore, the ERA limits the scope of comparison to situations where men and women work for the same employer. The Committee notes the Governments’ statement that the EPA provides broad protection which is further strengthened by other legislation, policies and initiatives, including the Five-Year Plan of Action on Pay and Employment Equity. The Government also indicates that it has no current plans to review the EPA but will continue to monitor developments in this regard. The Committee recalls that in 2004 the Task Force on Pay and Employment Equity defined “pay equity” as “men and women receiving the same pay for the same work and for work which is different, but of equal value”. The Committee, recalling its 2006 general observation on this Convention asks the Government to continue to report on any developments with respect to the amendment of its equal pay legislation, with a view to giving full legal expression to the principle of equal remuneration for men and women for work of equal value. The Government is also requested to provide information on any judicial decisions indicating that the Equal Pay Act is being interpreted by the courts in conformity with the broader meaning of Articles 1(b) and 2 of the Convention.

Applying the principle in the public service. The Committee notes with interest the implementation of the Five-Year Plan of Action on Pay and Employment Equity in the public service, and particularly the pay and employment equity reviews and response plans that have been undertaken in the thirty nine departments. The findings of the reviews carried out by mid-2008 indicate a gender pay gap ranging from 3 to 25 per cent, higher starting rates and performance pay for men, an under-evaluation of women’s work, an under‑representation of women in management and their concentration in administrative and clerical work with limited career paths, difficult career-advancement for part-time workers, and workplace cultures that limit women’s contributions. The Committee notes that the organizations’ responses to the pay reviews include reviewing job-evaluation methods for gender bias, undertaking job-evaluation exercises, ensuring that performance pay systems are gender-neutral, improving access to flexible work, supporting managers in managing flexible work, and improving professional development and career-paths for jobs primarily performed by women. The Government indicates that action on the responses is at an early stage but would include some of the following interventions: pay increases for re-evaluated jobs, gender-sensitive human resources policies, systems and data, more flexible work arrangements, some permanent employment contracts and new career paths across job levels. The Committee notes that two pay investigations have been agreed in public sector‑based occupations in which women are predominant. The Pay and Employment Equity Unit of the Ministry of Labour will monitor and analyse action on the responses proposed, and report on the progress made. The Committee welcomes the efforts made in promoting and applying the principle of equal remuneration for work of equal value in the public service through pay and employment equity reviews, and asks the Government to continue to report on the action taken to implement the recommendations made by the reviews.

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

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Gender earnings gap. The Committee notes from the statistics provided by the Government on the male–female earnings differentials in the public and private sectors up to 2005, that female earnings as a percentage of male earnings continue to increase and that a narrowing of the gender earnings gap will continue to occur gradually. The Committee, however, also notes from information published by the Pay and Employment Equity Unit that, although between 1984 and 2006, female average hourly earnings as a percentage of male earnings have increased, the gender pay gap has only narrowed by 7 per cent. Furthermore, average hourly earnings differentials continue to exist within and between ethnic groups, with the largest differential between the earnings of Maori and Pacific women as a percentage of those of European/Pakeha men (71.3 per cent and 64.1 per cent, respectively, in 2005). The Government indicates that the gender pay gap will nevertheless continue to decrease due to trends, such as a reduction in the male–female gap in educational attainment and years of work experience; changes in the occupational and industrial composition of male and female employment and shifts in the demand for industry-specific or occupational skills which men and women hold in different positions. The Government further provides extensive information on initiatives to promote a better work–life balance and family-friendly workplaces as a means to attain equal remuneration for men and women. Regarding the need to adopt measures to address gender segregation in the occupational and industrial composition of the labour market, the Committee refers to its comments under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Committee asks the Government continue to provide statistical information on the male–female earnings differentials, particularly those influenced by the male–female gap in accessing high-level posts in the public and private sectors.

2. Measures to promote the application of the Convention. The Committee notes the information provided by the Government on legislative measures relating to parental leave and flexible working hours as well as on the activities taken by the State Services Commission, the various ministries, the National Advisory Council on the Employment of Women (NACEW), the Equal Employment Opportunities Trust (EEO Trust) that help in improving the application of the Convention. It notes that the NACEW has commissioned research to describe the economic arguments for narrowing the gender pay gap, and that the EEO Trust has undertaken research relating to parenting and paid work. The Committee asks the Government to continue to provide information on the activities of relevant bodies to promote equal pay and on the outcome of any follow-up action given to the research undertaken by NACEW and the EEO Trust on the gender pay gap.

3. Complaints and enforcement mechanisms. The Committee recalls its previous comments regarding the low number of individual equal pay cases brought before the competent bodies and the need to take measures to ensure that cases where men and women receive unequal remuneration for work of equal value can be addressed effectively through appropriate complaints and enforcement mechanisms. The Committee notes the explanations given by the Government regarding the current proceedings available to address equal pay claims under the ERA, EPA and the HRA, including the new legislation that came into force in December 2004. The Committee also notes, however, that the NZCTU still considers that there is a need for a legally binding mechanism to enforce equal remuneration where results of pay evaluations show inequities. The Committee asks the Government to indicate how these legislative measures have helped in practice to address more effectively equal pay claims and to eliminate unequal remuneration for men and women for work of equal value. 

4. The Committee notes the decision of the Human Rights Tribunal and the High Court judgment in Talleys v. Lewis and Edwards applying the provisions of the Human Rights Act of 1993 in an equal pay case. It notes that the High Court, in determining whether jobs undertaken by men and women in Talleys, a fish‑processing plant, were substantially similar, took into account job comparisons based on job descriptions and objective evaluation criteria. The High Court ruled that the filleting role and trimming role were substantially similar and that gender discrimination existed in allocating the higher paid jobs to men and lower paid jobs to women. The Committee asks the Government to continue to provide information on relevant court decisions relating to the principle of equal remuneration for men and women for work of equal value.

5. Statistics on the gender pay gap. The Committee notes the Government’s statement that the States Services Commission is providing advice to public service departments on the statistical analysis of their pay and employment equity reviews. The Government indicates that the recommendation of the Task Force on Pay and Employment Equity on the need to determine what data would be appropriate to collect to give an overview of pay and employment equity will be dealt with after the Pay and Employment Equity Unit has gained more experience of statistical requirements from completed reviews. The Committee asks the Government to keep it informed on any further developments in collecting and analysing appropriate data on the gender pay gap.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the extensive information in the Government’s report as well as the comments by the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand (Business NZ) attached to the Government’s reports on this Convention and on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

1. Articles 1 and 2 of the Convention. Equal pay legislation. The Committee recalls its previous comments in which it emphasized that the requirement in the Convention for equal remuneration for men and women for work of equal value goes beyond the concept of equal remuneration for the same or similar work as currently provided for in the Employment Relations Act 2000 (ERA), the Human Rights Act 1993 (HRA) and the Equal Pay Act 1972 (EPA). Furthermore, the scope of comparison has to be as wide as possible, as allowed by the level at which wage policies, systems and structures are set, and not restricted to cases where employees work for the same employer, as provided for in the ERA. The Committee notes the Government’s statement that it has no plans to amend the current equal pay legislation. Instead, it is implementing a Pay and Employment Equity Plan of Action to give effect to the principle of equal remuneration for work of equal value. The Committee recalls its 2006 general observation on this Convention underlining the importance of legislation fully reflecting the principle of the Convention. The Committee urges the Government to consider amending its equal pay legislation at the earliest opportunity, so as to provide not only for equal remuneration for equal, the same or similar work, but also to prohibit pay discrimination that occurs in situations where men and women perform different work that is nevertheless of equal value. The Government is also requested to keep the Committee informed of any jurisprudence indicating that the relevant legislative provisions concerning equal pay are being interpreted by the courts within the broader meaning of Articles 1(b) and 2 of the Convention. 

2. Article 2. Measures to promote equal remuneration for work of equal value. The Committee recalls its previous comments regarding the recommendations made by the Task Force on Pay and Employment Equity in 2004, and notes with interest the various initiatives described in the Government’s report implementing the Five Year Plan of Action on Pay and Employment Equity. It notes in particular that pay and employment equity reviews are being carried out in the public service and the public health and education sectors, most of which will be completed in the course of 2008. Guidelines for pay investigations reviewing the value of the work and the factors and processes affecting remuneration are also being developed and will primarily target female‑dominated occupations. Claims for additional funding for remedial pay settlements arising from pay and employment equity reviews will be considered within existing budget processes through a tripartite process. The Committee further notes that Phase Two of the Action Plan will cover crown entities and state-owned enterprises and government-funded contract workers, and that consideration will be given to extending the pay and employment equity exercise to employees in local government and in the private sector. In this regard, the Committee notes the concern expressed by Business NZ that the private sector cannot rely on the taxpayer to fund pay increases for “female” occupations resulting from pay equity reviews. This would be particularly true in the health sector where private providers may have difficulty in matching “remedial” pay increases granted to nurses working in public institutions. Lower paid employees in the private health sector, where employment opportunities are often reliant on government contracting, may well be in that situation because state funding is inadequate to allow for the pay increase that might otherwise be considered necessary. According to Business NZ, most perceived payment inequities are to be found in the state sector where high numbers of women work in what are seen as the “caring” professions. The Committee asks the Government to provide information on the results achieved by the pay and employment equity reviews and the pay investigations undertaken in the public sector, as well as any specific follow-up action being given to the outcome of these reviews. The Committee also asks the Government to indicate how it intends to address difficulties encountered by employers in the private health sector in matching remedial pay increases granted to employees in public institutions. Please also keep the Committee informed of any steps that are being taken to extend the Pay and Employment Equity Plan of Action to other employees, including those in the private sector. 

3. Article 3. Job evaluation. The Committee notes with interest the development of the “equitable job evaluation tool” – a gender-neutral job‑evaluation system for use in pay investigations and for general use – which has been specifically designed to facilitate better recognition and contribution of female-dominated occupations to performance of important areas of the state services. In addition, the Committee notes that Standards New Zealand has developed a voluntary “gender inclusive job evaluation standard”, a practical guide and reference point for ensuring that job evaluation and the remuneration process are carried out in a gender-inclusive way. The Committee asks the Government to provide further details on the use of the gender-neutral job evaluation tools that have been developed and their impact on reducing gender pay differentials in the public as well as in the private sectors.

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

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

1. Measures to promote the application of the Convention. The Committee notes the information provided by the Government on the activities undertaken by the various ministries, the Human Rights Commission, the State Services Commission, the National Advisory Council on the Employment of Women, and the Equal Employment Opportunities Trust, and other relevant bodies. The Government is asked to continue to provide such information in its future reports.

2. Enforcement. The Committee notes that during the reporting period, the labour inspectors received two equal pay complaints under the Equal Pay Act. One equal pay case was brought before the Employment Relations Authority under the Employment Relations Act, two complaints involving gender pay discrimination were made to the Human Rights Commission under the Human Rights Act, one of which was heard by the Human Rights Review Tribunal. Please continue to provide information on the number, nature and outcomes of equal pay cases dealt with by the bodies competent to enforce equal pay legislation, and to provide indications as to the proportion of equal pay cases brought as compared to the total of cases involving allegations and instances of sex discrimination.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

1. The Committee notes the extensive information provided by the Government in its report and the attached documentation, as well as the comments made by Business New Zealand and the New Zealand Council of Trade Unions (NZCTU), and the Government’s response to these comments.

2. Articles 1 and 2 of the Convention. Legislative developments. The Committee recalls that in New Zealand equal remuneration for men and women who are performing the same or substantially similar work is required under several Acts, including the Employment Relations Act 2000 (ERA), the Human Rights Act 1993 (HRA) and the Equal Pay Act 1972 (EPA). Further definition of discrimination contained in the ERA appears to be restricted to cases where employees work for the same employer. The Committee previously emphasized the requirement in the Convention for equal remuneration to be paid for "work of equal value", a reference that goes beyond the concept of the same or similar work. In addition, with respect to the scope of comparison, the Committee considered that the scope should be as wide as allowed by the level at which wage policies, systems and structures are set.

3. The Committee notes that plans to adopt new equal pay legislation were abandoned in December 2004. The Government states that such legislation will instead be considered in conjunction with the development of the Government’s other pay and employment equity initiatives. While acknowledging the need to update existing equal pay legislation to improve its workability and application, the NZCTU supported the withdrawal of the legislative amendments concerning equal pay until further work could be done to ensure that any updating of the legislation is consistent with the Convention. The Committee asks the Government to keep it informed of any new initiatives to amend the current equal pay legislation, and trusts that its comments will be taken into account, with a view to bringing the national legislation into conformity with the Convention.

4. Articles 2 and 3. Measures to promote equal remuneration. The Committee notes with interest the report of the Task Force on Pay and Employment Equity in the Public Service and the Public Health and Public Education Sectors issued in March 2004. The Task Force has defined "pay equity" as "men and women receiving the same pay for the same work and for work which is different, but of equal value". It identified three key factors that affect women’s pay and employment equity: (1) the jobs that women do; (2) how jobs are valued; and (3) how jobs are organized. Noting in particular the recommendations made by the Task Force with regard to collective bargaining, minimum wage setting, the development of a gender-neutral job evaluation tool, equal pay audits and the establishment of a process for remedial settlements of pay equity claims, the Committee asks the Government to provide information on the progress made in implementing the comprehensive set of recommendations and the plan of action put forward by the Task Force. The Government is also asked to provide information on the measures taken or envisaged to promote the application of the Convention in the private sector, including any cooperation with the social partners in this regard.

5. Complaints and enforcement mechanisms. The Committee notes that the number of individual equal pay cases brought before the competent bodies remains low. While noting Business New Zealand’s view that this could be explained by the fact that the concept of equal pay has been accepted in New Zealand, the Committee emphasizes that the absence of complaints does not indicate per se the absence of discrimination, but rather calls for an examination of the operation of complaints mechanisms currently available. The Committee also notes the NZCTU’s position that, in order to ensure compliance with the Convention, equal pay audits and remedial settlement of equal pay claims should be underpinned by legally binding enforcement mechanisms. The Government expressed the view that compliance with the Convention could be achieved effectively by addressing the underlying causes of the gender pay gap, including the development of job evaluation tools and the use of existing accountability mechanisms and collective bargaining. The Committee considers however that the application of the Convention should be achieved through a combination of various means, including effective complaints and enforcement mechanisms. While it would be up to the Government, in consultation with the social partners, to determine the nature and structure of such mechanisms, their design and operation should contribute to the Convention’s objective which is the elimination of unequal remuneration for men and women performing work of equal value. The Committee asks the Government to provide information on the measures taken to ensure that in those cases where men and women do receive unequal remuneration for work of equal value the matter can be addressed effectively through appropriate complaints and enforcement mechanisms.

6. The male-female earnings differential. The Committee notes that according to the Household Labour Force Survey Income Supplement there was a 4 per cent increase in the  female-to-male ratio of average hourly earnings between 1997 and 2003. Progress in closing the gender pay gap was made in the age groups of 24-54, while the gap slightly increased for the other age groups. According to the Government, the gender pay gap decreased similarly for the European, Maori and Pacific New Zealanders, but it remained widest among European New Zealanders. The Trust Diversity Survey Report 2004, issued by the Equal Employment Opportunity (EEO) Trust, indicates that the hourly earnings gap has increased since 2003, while the weekly earnings gap slightly decreased, indicating an increase in hours worked by women. The Committee asks the Government to continue to provide updates on statistical information concerning men’s and women’s earnings in the private and public sectors, including data disaggregated by sex and ethnic group. The Government is also asked to provide information on any measures taken to implement the Task Force’s recommendation that further work should be done to determine what data would be appropriate for businesses and Statistics New Zealand to collect to give an overview on pay and employment equity.

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

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

Further to its observation, the Committee notes the information contained in the Government’s report and the attached documentation.

1. The Committee notes the passage of the Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act, 2002, and the Minimum Wage Order, 2001, and asks the Government to provide information in future reports on the impact these new laws have had on equalising remuneration levels between men and women.

2. The Committee welcomes the recent amendment to the Human Rights Act (HRA) which created an Equal Employment Opportunities Commissioner, who has some responsibilities relating to equity in remuneration. The Committee asks the Government to provide relevant information on the activities of this Commissioner.

3. The Committee also notes that the National Advisory Council on the Employment of Women (NACEW), which is a ministerial advisory body on matters relating to women and paid work, is now preparing a work plan that focuses in part on equity in remuneration. The Committee would be grateful if the Government would provide information on the NACEW work plan, as well as other relevant reports and other publications, as they become available.

4. The Committee notes the activities of the labour inspectorate of the Department of Labour which include the dissemination of employment information to the public. In light of the low number of equal pay complaints, however, it once again stresses the importance of effective enforcement mechanisms, including the investigative function of the labour inspectorate. In this context, the Committee notes that approximately 400,000 enquiries were processed by the information centre of the labour inspectorate, and it asks the Government to supply information as to how many of these enquiries related to issues of equal remuneration. It asks the Government to continue to supply information regarding the number of equal pay complaints brought under national legislation, the actions taken and the outcomes, as well as to provide information regarding the activities of the labour inspectorate, in addition to information dissemination, to ensure observance of the principle of equal remuneration for work of equal value. At the same time, while it notes that "Next Steps" contains information on the mechanism for making equal pay claims under the Equal Pay Act (EPA), the Committee requests that the Government indicate other measures that have been taken or that are being contemplated to disseminate information to the public regarding the right to bring a complaint of pay discrimination under all pertinent legislation, and the means for doing so.

5. The Committee notes that, in 2001, the average earnings of women in the public service were 84 per cent of those of men, but that where differences were examined within each occupation, the gap reduced by about half. As is noted in the State Services Commission’s Working Paper No. 15 ("The gender pay gap in the New Zealand public service"), this gap reduction suggests that there is significant job segregation in the public service: for example, men tend to work in higher paid occupations such as administration and general managers. The Committee asks for information from the Government on its efforts specifically related to the public service both to reduce the remuneration gap between men and women, and to combat job segregation.

6. The Government affirms that the asserted reduction in the gender pay gap is due to such trends such as: a reduction of the male-female gap in educational attainment; a reduction of the male-female gap in years of work experience; changes in the industrial and occupational composition of male and female employment; and shifts in the relative demand for industry-specific or occupational skills which men and women hold in different proportions. However, the Committee notes the Government’s acknowledgement that this analysis of trends dates to its previous report and that no new analysis has been done. The Committee asks the Government if it is considering updating this critical analysis in the near future.

7. The Committee notices with interest the report by the Ministry of Women’s Affairs (MWA) entitled Maori women: Mapping inequalities and pointing ways forward, which identifies a wide range of disadvantages suffered by Maori women, including disparities in remuneration as between them and both Maori and non-Maori men. The report recommends the development of options for improving analysis of and reporting with respect to this gap, with particular attention to such matters as occupational segregation, educational and training qualifications. The Committee asks the Government to keep it informed as to any policy and other developments with respect to these matters, including the department report-backs currently coordinated by MWA.

8. The Committee notes the Government’s request for technical assistance and hopes the Office will to be able to provide it in the near future.

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

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.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

1. 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 for a comprehensive approach to be taken to ensuring and promoting equality of opportunity and treatment in a wider context, an approach which entails a wide range of positive activities that impact on the behaviour and attitudes of society as a whole. In this context, the Committee notes with interest the numerous initiatives carried out by the Government to promote positive attitudes and practices among employers, including the new Equal Employment Opportunity Policy to 2010 directed at the public service, the Equal Employment Opportunities Trust (a joint venture between the Government and employers) and the Equal Employment Opportunities Contestable Fund, the childcare survey and the childcare subsidy now being implemented. The Committee asks the Government to continue to provide information on such initiatives, as well as information indicating the impact of such initiatives in narrowing the male-female earnings gap.

2. The Committee notes the three reports issued by the Ministry of Women’s Affairs and supplied by the Government: Occupational sex segregation, performance pay systems and equity, and Homecare workers. According to the documentation provided, occupational sex segregation has declined over the 15 year period from 1981 to 1996, particularly among workers in the 15 24 year age bracket. The Committee notes that, while occupational sex segregation decreased for full time workers, approximating the degree of segregation in the total labour force, it increased among part-time workers. Noting that women make up the majority of part-time workers, accounting for 70.5 per cent of the part time labour force in 1996, the Committee asks the Government to provide information in its next report regarding the measures taken to reduce sex-based occupational segregation for these workers.

3. The Committee notes the report of the Ministry of Women’s Affairs on Homecare workers: A case study of a female occupation, which finds that the growing sector of homecare work is predominantly carried out by women, is low paid, and requires skills which are not formally recognized or recompensed, thereby contributing to the existing gender earnings gap. The study indicates that when unpaid costs and extra time spent with clients or travelling between clients are taken into account, the effective hourly rates of pay for homecare workers are considerably lower than the nominal rates. Moreover, the pay and conditions of homecare workers are associated with both gender and labour market practices which tend to disadvantage women. According to the study, two factors combine to give a low value to homecare work: failing to describe the true nature of the work and the impact of gender on homecare as an occupation. The study suggests that research should be done to establish a methodology for measuring the gap between the nominal hourly pay rates for homecare workers and the effective pay rates, and to determine whether, at the bottom end of the labour market, the failure to reimburse workers for core aspects of their job has a gender-based pattern. The Committee would appreciate receiving information on any measures taken or follow-up studies conducted regarding the situation of homecare workers.

4. The Committee notes the report on Performance pay systems and equity, which focuses on the design, structure and operation of performance pay systems and related performance assessment processes in five organizations that operate such systems. The report suggests that indirect discrimination in the operation of pay systems is widespread and outlines a set of best practice principles to be used as guidelines to ensure that performance pay systems not only do not discriminate against women, but also achieve the purpose of improved organizational performance. The Committee asks the Government to provide information on any measures taken or envisaged to promote the best practice principles contained in the report as well as on any studies analysing longer term data on the operation of performance pay systems and examining the role that discriminatory assumptions may play in organizational decision-making.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the extensive information provided by the Government in its report and attached documentation. It also notes the comments of the New Zealand Employers’ Federation (NZEF) and the New Zealand Council of Trade Unions (NZCTU), as well as the Government’s response to those comments.

1. Legislative framework. With reference to previous comments concerning the negative impact of the Employment Contracts Act, 1991 (ECA) on the application of the Convention, the Committee notes with interest the repeal of the ECA and its replacement by the Employment Relations Act, 2000 (ERA), which came into effect on 2 October 2000.

2. In its comments, the New Zealand Employers’ Federation (NZEF) notes that, for more than 20 years, it has been unlawful in New Zealand to pay individuals differently on the basis of their sex. In the view of the NZEF apparent payment disparities are due to factors other than sex.

3. The New Zealand Congress of Trade Unions (NZCTU) welcomes the enactment of the Employment Relations Act, 2000, noting that the new employment relations framework established by the Act could serve as a foundation for subsequent measures to improve the effective application of the Convention. In this regard, the NZCTU points to the important role that collective bargaining can play in reducing the male-female wage gap. The NZCTU nevertheless indicates its concern that existing legislation has not been effective in promoting equal pay and equal employment opportunities. The NZCTU reiterates that there is no legislation recognizing the concept of equal pay for work of equal value, there is no provision for bringing cross contractual equal pay complaints and the application of equal pay legislation is limited to situations where employees work for the same employer.

4. With regard to national legislation, the Government indicates that equal remuneration for workers performing the same or similar jobs is required by several Acts which provide a range of overlapping protection against gender-based salary discrimination, including the 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 its definition of employment discrimination appears to be restricted to cases where employees work for the same employer (see ERA, section 104(1)).

5. The Committee again draws the Government’s attention to the fact that the principle of equal remuneration within the meaning of Article 1 of the Convention refers to equal remuneration for "work of equal value", a reference that goes beyond the concept of the "same" or "similar" work, choosing instead the "value" of the work as the point of comparison. With respect to the scope of comparison, the Committee recalls once again that the reach of the comparison should be as wide as allowed by the level at which wage policies, systems and structures are set. The Committee once again asks the Government to indicate the measures taken to ensure the observance of the Convention and its application in practice, such as the revision of legislation, or the issue of guidelines for use in job evaluations and contract negotiations.

6. Complaint procedures and enforcement mechanisms. Referring to its previous comments on the low number of equal pay complaints brought in New Zealand during the reporting period, the Committee notes that no equal pay complaints were heard by the Employment Tribunal or the Employment Court during the reporting period, nor were any equal pay cases brought under the EPA. The report indicates that 52 complaints of sex discrimination were brought under the HRA, four of which involved complaints of sex-based salary discrimination. In this context, the Committee notes the NZCTU’s statements pointing to structural and financial impediments to monitoring compliance with existing legislation. The Committee asks the Government to indicate the measures that have been taken or are contemplated to disseminate information to the public regarding the principle of equal remuneration for work of equal value and to inform the public of the right to bring a complaint of pay discrimination.

7. The Committee notes the activities being carried out by the Labour Inspectorate of the Department of Labour to disseminate employment information to the public. In light of the low number of equal pay complaints, however, it is bound to stress also the importance of effective enforcement mechanisms, including the investigative function of the Labour Inspectorate. It asks the Government to continue to supply information regarding the number of equal pay complaints brought under the national legislation, the action taken and the outcomes, as well as to provide information regarding the activities of the Labour Inspectorate - in addition to information dissemination - to ensure observance of the principle of equal remuneration for work of equal value.

8. The male-female earnings differential. The Government indicates that it continues to be fully committed to the principle of equal remuneration for men and women workers, but recognizes that further progress remains to be made in eliminating sex-based pay differentials in the New Zealand labour market. According to the report, recent surveys from Statistics New Zealand show a further reduction in the pay gap between women and men during the reporting period. Figures from the firm-based Quarterly Employment Survey show an increase in the ratio of women’s to men’s earnings from 82.1 per cent in June 1997 to 83.9 per cent in June 1999. The household-based Household Labour Force Survey Income Supplement shows an increase of 0.16 points in the female to-male ratio of average hourly earnings, from 0.818 in June 1997 to 0.835 in June 1999. The Government suggests that this shift reflects a longer term and gradual change in the labour market.

9. The Government indicates that a research project analysing the components of the male-female earnings gap is being carried out by the Department of Labour. According to the report, the evidence collected by the project so far indicates that a range of social and economic trends contributed to the reduction of the gender pay gap between 1984 and 1999, including: a narrowing of the male-female gap in educational attainment; a reduction of the male-female gap in terms of work experience; a decrease in the number of employed women responsible for the care of dependent children; convergence in the industrial and occupational composition of male and female employment; and shifts in the relative demand for differently skilled labour.

10. The NZCTU indicates that the statistical evidence contained in the report is insufficient to support the Government’s statement that there is a gradual long term closing of the gender earnings gap. It notes that the 1999 Diversity Index of the EEO Trust does not share the Government’s confidence in a closing gender earnings gap, finding instead that the gap has not closed since the previous index. Noting the short-term nature of recorded changes in the gender earnings gap, the NZCTU cautions against concluding prematurely that the gap is closing. Instead, the NZCTU indicates that it would be beneficial to carry out more in depth research to enable the social partners to identify those areas of the labour market where work is most needed to ensure effective application of the principle of the Convention. The Committee trusts the Government will take the necessary measures to continue to reduce the remuneration gap between men and women in coordination with the social partners.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the detailed information supplied by the Government in its report and attached documentation. The Committee also notes the comments of the New Zealand Employers' Federation (NZEF) and the New Zealand Council of Trade Unions (NZCTU), as well as the Government's response to those comments.

1. Legislative protection. The Committee notes that the pay gap has not narrowed since 1994 (see paragraph 8 for discussion on pay gap). In its report, the Government acknowledges that the problem of earnings differentials between men and women cannot be addressed simply by legislative prescription, but requires a wide range of positive activities which impact on the attitudes and behaviour of society as a whole. It is the Committee's view that, for progress to be made in the promotion of this Convention, it is essential that a comprehensive approach be taken to ensuring and promoting equality of opportunity and treatment in a wider context. It thus notes with interest the references in the Government's report to various initiatives it has undertaken to promote the principles of equal remuneration and equal employment opportunity, to increase the participation of women in the workforce and to reduce occupational segregation. The Committee nevertheless points out that, where legislation forms part of a comprehensive approach toward the elimination of gender-based salary discrimination, it is crucial that such legislation be effective and ensure the application of the principle of equal remuneration for men and women workers for work of equal value, within the meaning of Article 1 of the Convention.

2. In its comments, the New Zealand Council of Trade Unions (NZCTU) points to a constellation of factors which, it believes, renders the legislative framework ineffective and inadequate. The NZCTU indicates that the Equal Pay Act 1972 (EPA), the Employment Contracts Act 1991 (ECA) and the Human Rights Act 1993 (HRA) do not comply with the requirements of the Convention in that they fail to recognize the concept of equal pay for work of equal value; they provide no scope for cross-contractual complaints; and their application is limited to cases where employees work for the same employer. It refers to the 1986 Clerical Workers' Union decision, in which the New Zealand High Court interpreted the EPA narrowly, so that rates of pay under the Clerical Workers' Award could not be compared with rates under the Building Trades Award. According to the NZCTU, section 28 of the ECA codified the principle established in the Clerical Workers Union case that employees must hold "substantially similar" employment as a condition precedent to making an equal pay claim. The Committee notes that the HRA also reflects a "substantially similar" employment requirement in its definition of discrimination. It recalls that the 1994 Ministry of Women's Affairs Report on the Effectiveness of the Equal Pay Act raised similar concerns regarding limitations of the scope of the legislation.

3. The New Zealand Employers' Federation (NZEF), on the other hand, is of the view that the EPA is not too limited and that existing pay differentials are not based on gender. In its comments, the NZEF takes the position that the language of Article 1(b) of the Convention is not intended to permit broad wage comparisons and that allowing such comparisons would effectively amount to state intervention in the wage negotiation process. The NZEF posits that determining the value of work on an across-enterprise basis is a subjective process which can lead to distortions in wages and pay rates. For this reason, rates of remuneration in New Zealand are set for the individual enterprise and may vary based on individual ability or on the nature of the work.

4. The NZCTU maintains that the EPA has failed to redress pay discrimination in New Zealand, largely due to the impact of the ECA. It points out that, during the implementation period of the EPA, the gender pay gap began to close, but that, since 1991, progress toward equal pay has plateaued. It recalls that the structure of the EPA was predicated upon the uniform pay system created by collective awards and agreements and that the enactment of the ECA has negatively impacted the position of women in the New Zealand labour market by its shift towards a multiplicity of individual contracts containing alternative pay systems. In contrast to the position taken by the NZEF, the NZCTU points out the potential for gender pay discrimination in both performance and competency-based pay systems.

5. The Government expresses its disagreement with the NZCTU's statements, indicating that the ECA has not marginalized the position of women in the labour market. It believes that the EPA and related legislation meet the requirements of the Convention. The Government points out that the EPA was amended in 1991 to reflect the new industrial relations framework heralded by the enactment of the ECA. The Government also states that cross-contractual complaints may in fact be brought under the EPA, the HRA and the ECA.

6. The Committee must recall that the principle of equal remuneration within the meaning of Article 1 of the Convention refers to equal remuneration for work of equal value. As the Committee noted in its General Survey on equal remuneration, ILO, 1986, the ILO standards go beyond a reference to the "same" or "similar" work, choosing instead the "value" of the work as the point of comparison. (See 1986 General Survey, at paragraphs 19-23, 52-70 and 138-152.) With respect to the scope of comparison, the Committee reiterates its view that the reach of the comparison should be as wide as allowed by the level at which wage policies, systems and structures are coordinated, taking into account also the degree to which wages fixed independently in different enterprises may be based on common factors unrelated to sex (see 1986 General Survey at paragraph 72). The Committee expresses its hope that the equal remuneration legislation currently in force in New Zealand will be applied in such a manner as to give full effect to the provisions of the Convention and asks the Government to indicate the measures taken to ensure the observance and application in practice of the policy contained in Article 2 of the Convention, such as the issuance of guidelines for use in job evaluations and contract negotiations. The Committee also requests the Government to indicate whether any judicial or administrative tribunals have interpreted the equal remuneration laws as permitting cross-contractual complaints and to provide copies of any such decisions.

7. Complaint procedures and enforcement. The NZTCU states that there are currently no effective remedies for equal pay violations in New Zealand. It refers to the low number of equal pay complaints brought in New Zealand, which suggests either that individuals know too little about their right to equal pay, or that pursuing available remedies for pay discrimination is simply too difficult. The NZCTU also expresses concern that the Labour Inspectorate, which received no equal pay complaints, is not playing an investigatory role. In the NZEF's view, current complaint procedures are entirely adequate to ensure that, where pay discrimination is claimed and is established, any genuine grievance can be properly addressed. The Government indicates that employees who feel they have been discriminated against in relation to their remuneration have access to three avenues for redress: (1) they may bring a personal grievance to the Employment Tribunal under the ECA; (2) they may make a complaint to the Human Rights Commission under the HRA; or (3) they may bring a complaint to the Labour Inspectorate, who may be able to resolve the situation informally, or through action in the Employment Tribunal under the EPA. The Government report refers to four equal pay complaints brought during the reporting period, out of a total of 54 complaints of sex discrimination in employment. It also highlights the active information-providing role now played by the Labour Inspectorate as well as the establishment of the EEO (Equal Employment Opportunity) Trust and the EEO Contestable Fund. The Committee notes the educational element of the activities cited by the Government and their importance; however it must also emphasize the importance of effective enforcement mechanisms. It requests the Government to continue to supply information regarding equal pay complaints brought under the EPA, the HRA and the ECA. Noting the EEO Trust and the EEO Contestable Fund, the Government is asked to indicate what initiatives it has established to involve workers' organizations within the meaning of Article 4 of the Convention.

8. Size of pay gap. The Government acknowledges in its report that the gender pay gap decreased over most of the 1984-94 period, but that no further narrowing of the gap has occurred since 1994. It indicates that factors related to women's lower participation in the workforce and their higher concentration in specific industries and occupations are key to understanding the problem of gender-related earnings differentials. Data provided by the Government from Statistics, New Zealand's quarterly employment survey, showed that the average hourly pay gap between males and females remained relatively constant at between 80.5 per cent and 81.5 per cent during the period from February 1996 to November 1997. Additional data supplied by the Government from Statistics, New Zealand's household economic survey, showed that the ratio of female to male earnings has fluctuated between 82.4 per cent and 87.5 per cent from 1994 to the present. The Government indicates that some of the reduction in the gender pay gap over the late 1980s and early 1990s was due to a convergence in the average productivity-related characteristics of male and female employees, as well as greater convergence in their educational qualifications, mean age and full-time/part-time mix. The Government states that the remaining part of the reduction in the pay gap is not presently well understood. It indicates that it is continuing its research into this problem and refers to further work being coordinated by the Ministry of Women's Affairs on the gender pay gap, employment and remuneration in home-care work and performance-related remuneration systems. The Committee would be grateful if the Government would provide copies of these studies as soon as they are available. Further, the Committee asks the Government to provide it with information on the outcome of its ongoing research into the interrelationships between worker characteristics and earnings, which it anticipates will contribute to a better understanding of the relationships between earnings, gender, and other worker characteristics.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the detailed report and annexed documents provided by the Government. The Committee also notes the comments of the New Zealand Employers' Federation (NZEF) and of the New Zealand Council of Trade Unions (NZCTU), on which the Government has furnished additional comments. In addition, the Committee notes the 1994 Conference Committee's discussion of this case.

1. In its previous observation, the Committee had requested the Government to indicate the measures being taken to ensure the implementation of the Equal Pay Act, 1972, and of the Human Rights Commission Act, 1977, more particularly in respect of individual employment contracts concluded pursuant to the Employment Contracts Act, 1991. It had also asked the Government to provide information on the measures taken to foster employment equity, including information on the use and results of job evaluation. In its report, the Government states that it is continuing to pursue legislative and non-legislative action to promote the principles of equal remuneration and equal employment opportunities, as well as to increase the proportion of women in the workforce and to reduce occupational segregation. It indicates that these measures are based on the recognition that differentials in earnings cannot be addressed simply by legislative prescription, but require a wide range of positive activities which impact on the attitudes and behaviour of society as a whole. Among the initiatives put into place recently, the Government refers to its current development of policy options to address a number of areas flowing from the Platform for Action, adopted at the United Nations Fourth World Conference on Women, Beijing, September 1995, including the gender pay gap, mainstreaming a gender perspective in the development of all of its policies and programmes and the need for more and better data collection about all aspects of women's lives.

2. The NZCTU indicates that the legislative basis for implementing the principle of the Convention is inadequate, that the protections are weak, and that the remedies are legalistic, expensive and slow. The NZCTU states that the Equal Pay Act was rendered inoperative by the Employment Contracts Act and that this was acknowledged in an official report (entitled "Effectiveness of the Equal Pay Act"), prepared in 1992 by the staff of the Ministry of Women's Affairs. It draws attention to the fact that no equal pay complaints were lodged with the Labour Inspectorate which is charged with advising on and enforcing the Equal Pay Act. The NZCTU also indicates that the Employment Contracts Act and the Human Rights Act outlaw pay discrimination on the basis of sex for the "same work" rather than for work of equal value. According to the NZCTU, it is not surprising that there are no cases where personal grievances have been heard on the grounds of gender discrimination under the Employment Contracts Act and that the Human Rights Commission has not found any similar complaint to have substance. The Government expresses disagreement with the NZCTU's criticisms of the formal mechanisms provided in respect of equal pay and states that the Labour Inspectorate, which deals with some 150,000 inquiries annually, is adequately resourced and fulfils well its information and enforcement functions; that both other Acts provide procedures and remedies to protect employees against discrimination; and that the Employment Tribunal is a low level, low cost, informal and speedy institution which can hear personal grievance cases founded on discrimination. It maintains that the combination of information, education and enforcement will achieve the same goals as formal legislative instruments in a less prescriptive, more cooperative and more efficient manner. As the Government has acknowledged in its report, the Committee has often observed that, for progress to be made in the promotion of this Convention, it is important that a comprehensive approach be taken to ensuring and promoting equality of opportunity and treatment in a wider context. Where legislation forms a component of any such approach, it is, of course, important to ascertain that it is effective. In this respect, the Committee would be grateful for the Government's comments on the 1992 report concerning the Equal Pay Act, cited by the NZCTU.

3. According to statistics provided by the Government, the gap between the average hourly earnings of males and females has remained relatively constant at around 81 per cent during the reporting period. Commenting on these figures, the NZCTU states that, in the absence of any legally established or recognized bodies responsible for determining wage rates, the gender pay gap will not close. The Government states, in this regard, that it believes the parties to an employment contract are best placed to negotiate their terms and conditions. The NZEF states that the question as to whether any of this earnings gap can be attributed to discrimination is far from established; there are numerous other factors which contribute to the gap, including the tendency of women to have different workforce experiences to men, often because of the caring work they do in the home (usually as a matter of choice); their tendency to work in service-type jobs which, by their nature, cannot attract the kind of wages paid by profitable concerns; the fact that until recently few women occupied senior positions; and the education and training undertaken by women. The NZEF also emphasizes that where the Government speaks of pay or wage differentials, it should instead be referring to earnings differentials. The Government's report also makes reference to a recently commenced process of researching the nature of earnings distribution - involving, so far, an analysis of data from Statistics New Zealand's Household Economic Survey (HES) - which is intended to contribute to a better understanding of the relationships between earnings, gender and other characteristics. Initial results show a decrease in the apparent gender pay gap and have also pointed out a variety of interrelationships between demographic characteristics and earnings. The Committee asks the Government to furnish information on the outcome of this research.

4. Further to its previous observation, the Committee notes the 1993 report (entitled "A Survey of Labour Market Adjustment under the Employment Contracts Act 1991") prepared for the Department of Labour, which concludes that: "Despite some concern and well publicized abuses of the Act, around 75 per cent of employees with new contracts are satisfied with their terms and conditions; 14 per cent are dissatisfied and the remainder are neutral. New contracts now cover 75 per cent of employees." The report indicates that some discomfort with the current balance of power in favour of employers is evidenced by the level of approval of the Act among employees being lower than might be expected given the high levels of satisfaction with terms and conditions; and that employees' views on cooperation with management, trust of management and job security are very different and less favourable than those of employers. The report also indicates that even though there was some support for changes to the operation of the Act, there was virtually no support for its abolition. However, the greatest support for change concerned the bargaining process itself and came from small employers and public sector enterprises. They emphasize the need to encourage more agreement, to provide guidelines for negotiation and even wage levels which, according to the report, indicates the difficulty that many employers face in having to negotiate wage rates with employees where previously they had a clear benchmark from industry and occupational awards. A further report supplied by the Government, which undertakes a gender analysis of the employee data collected for the above-mentioned survey of the Employment Contracts Act, concludes that overall there were few significant differences between men and women as concerns the impact of the Act and that the differences in groups of employees were more likely to be associated with their labour market position rather than with gender. The Committee requests the Government to indicate whether measures have been taken, or are contemplated, to address the difficulties identified in these surveys.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information contained in the Government's report and the attached documentation, in reply to its previous observation.

1. The Committee had requested the Government to indicate the measures being taken to ensure the implementation of the Equal Pay Act, 1972, and of the Human Rights Commission Act, 1977, more particularly in respect of individual employment contracts concluded pursuant to the Employment Contracts Act, 1991. In its report, the Government discusses the processes available to individuals, employed by the same employer under individual or collective employment contracts, to redress claims of pay discrimination. In addition, the report outlines the role of the Employment Tribunal established under the Employment Contracts Act to mediate or adjudicate claims received, or to examine, on its own motion, the provisions of an actual or proposed employment contract or agreement to determine its compliance with the Equal Pay Act. The Committee also notes the various measures taken to inform employees of their rights. Noting that the Labour Inspectorate received only one complaint under the Equal Pay Act during the years 1990 to 1993 inclusive, the Committee requests the Government to provide, in its next report, information on the extent to which individuals have sought to avail themselves of other processes to redress their equal pay claims and on any relevant mediation assistance or decision of the Employment Tribunal.

2. The Committee had examined a comment of the New Zealand Council of Trade Unions concerning the limited scope in which comparisons could be made for the purpose of determining equal pay. Information had accordingly been requested on the measures taken or contemplated to apply the principle of equal pay to female employees whose possibilities for comparison were insufficient in private sector workplaces. In this respect, the Government refers to its publication and wide dissemination of the manual "Equity at Work: An Approach to Gender Neutral Job Evaluation" which was noted with interest in the Committee's 1992 observation. The Committee also notes with interest the activities of the Equal Employment Opportunities Trust to promote and publicize the benefits of equal employment opportunities, as well as those funded by the Equal Employment Opportunities Contestable Fund to help overcome those barriers to wage equity that result from men's and women's different experiences in education, training and the assumption of family responsibilities. The Committee would be grateful if the Government would continue to provide information on the measures taken to foster employment equity, including information both on the extent to which gender neutral job evaluation has been applied in practice and on any resulting pay adjustments made for women employed in predominantly female workplaces.

3. The Government also provides information concerning a survey to be undertaken on bargaining structures, process and outcomes pursuant to the 1991 Employment Contracts Act. The Committee hopes that the Government will provide information about this research, particularly in relation to any effects observed on women's employment participation and remuneration levels relative to those of men since the introduction of a decentralized wage system.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

1. Further to its previous comments, the Committee notes from the report of the Government that the annual grading review carried out in 1988 resulted in correcting certain anomalies in wage relativities, regraded directors' positions, rationalised posts in the Trades group and introduced improved guidelines for setting starting salaries and processing annual salary increments. The Committee requests the Government to provide copies of both the current classification list of staff employed in the Tokelau Public Services and the above-mentioned guidelines.

2. Having noted from the 1988 report on the Inspection of the Public Service that attention would be given to upgrading the 1988 Tokelau Public Service Manual, the Committee requests the Government to furnish, if available, a copy of the revised document.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the information provided by the Government in its report and the comments made by the New Zealand Council of Trade Unions and the New Zealand Employers' Federation.

1. In its previous comments under Conventions Nos. 100 and 111, the Committee noted that a review of existing measures to eliminate discrimination, which focused in particular on the Equal Pay Act, 1972, and the Human Rights Commission Act, 1977, resulted in the enactment of the Employment Equity Act in August, 1990. This legislation had, however, been repealed in December 1990, shortly after coming into force because, as is reiterated in the last report, the present Government rejects its requirements for private sector employers to comply with mandatory equal employment opportunity programmes and opposes the centralised system of wage adjustment that would have been instituted through the pay equity procedures provided for in the legislation.

The Committee notes the enactment of the Employment Contracts Act, 1991 (Act No. 22 of 1991) which, according to the Government, reflects its policy that the determination of rates of remuneration is the sole responsibility of the parties to the employment contract. The Government further states that it is no longer involved in the wage-fixing process, its role with respect to Convention No. 100 being to promote the principle of equal remuneration in both collective and individual employment contracts.

The Committee has taken due note of the provisions of this Act, and of the amendments made to the Equal Pay Act 1972, by the Equal Pay Amendment Act, 1991. This amendment has inserted into the Equal Pay Act the equivalent of section 15(1)(b) of the Human Rights Commission Act, 1977 (under which it is unlawful for employers to refuse or omit to offer or afford any person the same terms of employment, conditions of work, fringe benefits, and opportunities for training, promotion and transfer as are made available for persons of the same or substantially similar qualifications employed in the same or substantially similar circumstances on work of that description by reason of the sex of that person). Thus, the Equal Pay Act applies to employers who employ staff in the same workplace, whether on the basis of individual or collective contracts. An amendment to the Human Rights Commission Act enables individuals to make an equal pay claim either under that Act or the Equal Pay Act.

2. The Committee must clarify the scope of the obligation imposed on a ratifying State either to ensure or to promote the application of the principle of the Convention. The Committee points out that under Article 2.1 of the Convention, a ratifying government's obligation to ensure implementation of the principle is limited to those areas where the government is in a position to exert direct or indirect influence on the wage-fixing process; in all other cases, the government must promote the application of the Convention. While the Convention does not require that legislation be enacted, legislative action does, however, extend the government's competence to intervene in the field of wages and hence widen the scope for ensuring application of the principle, at least to the extent of the intervention. In the present case, the Government is obliged, by virtue of the provisions of the Equal Pay Act, 1972, and of the Human Rights Commission Act, 1977, to ensure that the provisions of those texts are complied with in all employment contracts concluded pursuant to the Employment Contracts Act, 1991. The Committee therefore requests the Government to supply information on the measures being taken to ensure the implementation of these Acts, more particularly in respect of individual employment contracts concluded pursuant to the Employment Contracts Act, 1991.

3. The Committee has also noted the comments of the New Zealand Council of Trade Unions concerning the permissible scope of comparison for the purpose of determining equal pay. The Council states that comparisons can be made only between workers employed by the same employer, whereas before the enactment of the Employment Contracts Act, it was possible, through the registration of agreements, to ensure that wage parity was applicable to all workers within the occupation or industry covered by the agreement. Of greater significance, states the Council, is the complete lack of any mechanism for ensuring that an occupation or skill which is performed largely by women workers is paid at comparable rates to those paid to workers in a comparable occupation or skill performed largely by males.

While acknowledging the difficulty in determining how broadly comparisons between the jobs performed by men and women should be permitted, the Committee observes that adequate possibilities for comparison must be available if the principle of equal pay for work of equal value is to have any application in a sex-segregated labour market. In order to ensure implementation of the principle in an occupation or industry employing mostly women, it is essential that there be a basis of comparison outside the limits of the establishment or enterprise concerned. The Committee requests the Government to provide information in its next report on the measures taken or contemplated to ensure the application of the principle of equal remuneration for work of equal value in respect of those women workers in the private sector who find their possibilities for comparison insufficient in their particular workplaces.

Recalling, moreover, that the Government Service Equal Pay Act, 1960, provides for the possibility of making comparisons with scales of pay in other sections of employment when women government employees perform work of a kind which is exclusively or principally performed by women (section 3(1)(b)), the Committee requests the Government to provide information concerning the use, in practice, of that provision.

4. The Committee has noted with interest the information provided by the Government on the measures taken to promote equal remuneration (outlined in the Government's response to the Recommendations of the Working Party on Equity in Employment, January 1991). Particular note has been taken of the publication and wide distribution of the manual, "Equity at Work; An Approach to Gender Neutral Job Evaluation" (State Services Commission, July 1991) which was developed to overcome gender bias in traditional job evaluation systems. The Committee has also noted that an Equal Employment Opportunities Trust will be established by the Government with private sector employers to promote equality. Significant funding has also been committed by the Government to promoting equality in the private sector.

The Committee hopes that the Government will supply further details on the promotional activities undertaken, including those of the Equal Employment Opportunities Trust, and requests the Government to continue to provide information concerning the impact of all of the above-mentioned initiatives on the application of the Convention.

5. The Committee has noted the statistical data provided by the Government which indicates that women's average hourly earnings are about 80-81 per cent of those of men. In this regard, the Committee notes the comment of the New Zealand Employers' Federation to the effect that the differential between female and male wages is an earnings gap which may be accounted for by many factors other than an alleged disparity in rates of pay, such as age, length of service, education and training, incidence of part-time employment and, in particular, the tendency for women - notably married women or women with partners - to take time out of the paid workforce for family responsibilities. In considering the difficulties experienced by member States in reducing the wage differential, the Committee has stressed that real progress is possible only when action to implement the Convention is taken within the broader context of measures to promote equality between women and men generally. The Committee hopes that some of the constraints to reductions in the wage differential, such as education, training, and women's family responsibilities, will be addressed in the context of the measures being taken to promote equality in general.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee takes note of the Government's report and the appended documents.

The Committee notes in particular that following the equal pay study which was completed in 1987, a Working Group on Equal Employment Opportunities and Equal Pay was established to analyse the situation and submit suggestions to the Government. The Committee takes note of the Working Group's report "Toward Employment Equity" and of the recommendations contained in it. In its report, the Government indicates that it has agreed in principle to the enactment of an Employment Equity Act that covers the public and private sectors, and which would be implemented by a special committee (see the observation under Convention No. 111). The Government states that the problems encountered in applying equal remuneration in the public service for work of a different nature but of equal value should be solved by the adoption of the new legislation. The Committee also notes that the above Act would cover all individuals and collective agreements, which could also ensure observance of the principle of equal remuneration in respect of wages for jobs held mainly by women and in respect of wages paid to employees who are not covered by arbitration awards. With regard to wages that are higher than those fixed by arbitration awards, the Government indicates that no particular provision guarantees the application of the principle of equal remuneration but that any complaints would be investigated by the Labour Inspectorate. The Committee takes note of this information and of the statistics transmitted by the Government. It hopes that the remedial measures envisaged by the Government as a result of the studies conducted will ensure that the Convention is also applied in this respect. The Committee asks the Government to continue to keep it informed of developments in the situation and to provide a copy of the planned legislation as soon as it is adopted.

Furthermore, the Committee takes note of the new comments made by the New Zealand Employer's Federation on the Government's report. It notes in particular the divergencies of opinion expressed by the Federation concerning the application of the principles laid down in the Convention. In the view of the above organisation, the differences in male and female rates of pay in New Zealand are not due to distinctions on the basis of sex and that in fact the average earnings gap between men and women continues to narrow. The Committee takes note of the arguments of the New Zealand Employer's Federation, on which the Federation bases its firm opposition to the proposed pay equity legislation which, it considers, would run counter to the wage-bargaining process. The Committee points out that, pursuant to Article 2 of the Convention, the application to all workers of the principle of equal remuneration may be achieved by various means, which are set out in paragraph 2 of the above Article and, in accordance with Article 4, by co-operation with the employers' and workers' organisations concerned.