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The Committee notes the observations of Business New Zealand (BusinessNZ) and the International Organisation of Employers (IOE) received on 1 September 2021 and the Government’s reply thereto. The Committee further notes the observations of the New Zealand Educational Institute (NZEI) received on 6 September 2021 and the Government’s reply, as well as the observations of the New Zealand Council of Trade Unions (NZCTU) communicated with the Government’s report.

Scope of the Convention. In its previous comments, the Committee had noted that pursuant to an amendment from 2010 to the Employment Relations Act (ERA), workers engaged in film production work are considered to be independent contractors rather than employees, unless they have a written employment agreement that provides that they are employees and were thus not covered by the provisions of the ERA. The Committee requested the Government to take any necessary measures, in consultation with the social partners, to ensure that all film and television workers, including those engaged as self-employed workers, can fully enjoy the rights and guarantees set out in the Convention. The Committee notes with interest the Government’s indication that it established the Film Industry Working Group in 2017 consisting of industry, business and worker representatives to find a way to restore workers’ rights in the industry. The Working Group made recommendations in October 2018 suggesting a bespoke workplace relations regime for contractors in the screen industry which were accepted by the Government in June 2019 and given form in the Screen Industry Workers Bill, which is currently awaiting its second reading. The Bill will provide clarity about the employment status of people doing screen production work, introduce a duty of good faith and mandatory terms for contracting relationships in the industry, allow collective bargaining at the occupation and enterprise levels, and allow access to employment institutions to resolve disputes arising from contracting relations collective bargaining in the industry. The Committee trusts that the measures proposed will ensure that all film and television workers can fully enjoy the rights and guarantees set out in the Convention and requests the Government to transmit a copy of the final version of the Bill as soon as it has been approved and to provide information on its application in practice.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee requested the Government to, in consultation with the social partners, review and assess the application of section 50(K) of the Employments Relations Act (ERA), which permits any party to apply to the Employment Relations Authority for a determination as to whether bargaining has concluded, with a focus on the restriction this provision may have on further initiation of bargaining, and its impact on the conclusion of collective bargaining agreements. The Committee further requested the Government to provide information on the impact of section 44A, B and C of the ERA which provided an opt-out possibility for employers presented with a notice initiating collective bargaining including them and other employers. The Committee notes with satisfaction the information provided by the Government that both these sections were repealed on 12 December 2018 through the Employment Relations Amendment Act and further notes a number of other amendments aimed at strengthening collective bargaining and union rights in the workplace.

Voluntary nature of collective bargaining. The Committee notes the detailed observations made by BusinessNZ and the IOE in which they assert that sections 31 and 33, as amended by the Employment Relations Amendment Act 2018, and 50J of the ERA, are inconsistent with the principle of free and voluntary collective bargaining enshrined in Article 4 of the Convention. In particular, the organizations refer to the obligation in sections 31 and 33 to conclude a collective agreement unless there is a “genuine reason”, based on reasonable grounds, not to, regardless of the fact that negotiations may be initiated by a union on behalf of as few as two unionised employees. Prior to the changes to these sections, employers and unions were required to bargain in good faith but bargaining could be terminated without agreement as long as it was clear that all matters had been considered and responded to in good faith. According to BusinessNZ and IOE, now, once bargaining is initiated, the process mandated by the good faith obligations must be followed to its logical conclusion no matter how many or how few employees are affected by the outcome.

The Committee notes the Government’s indication that the amendments to sections 31 and 33 ensure that parties genuinely attempt to reach an agreement but they will not have to settle a multi-employer collective agreement if their reason not to do so is based on reasonable grounds. According to the Government, these provisions seek to encourage the full utilisation of the process for good faith collective bargaining by putting in place mechanisms that require parties to make every effort to conclude an agreement, consistent with the duty of good faith. The underlying assumption is that if employers and unions are bargaining in good faith, they intend to reach a collective settlement and that this should result in an agreement unless they are genuinely unable to conclude. The Government indicates that the provisions originally resulted from a review of the principal Act giving rise to amendments in 2004 which identified the need to address the issue of “surface bargaining” where engagement was on matters of form rather than substance, or where deadlocks on some individual issues led to deadlock on the entire negotiation. These provisions were removed in 2015 but restored in 2018 returning the situation to that which existed from 2004 to 2015. The Government adds that the provisions do not make settlement mandatory as good faith bargaining may not always result in a collective agreement in all cases and hence the recognition of “genuine reason” and considers that if the parties are negotiating in good faith they should be able to provide genuine reasons for not being able to conclude. The Government therefore states that it does not agree with the views of BusinessNZ that the provisions impose an absolute duty to conclude contrary to Article 4. Finally, the Government considers that the number of employees affected by the outcome is irrelevant.

The Committee further notes that BusinessNZ and the IOE also refer to section 50J which permits the courts to compulsorily fix the terms of a collective agreement where the bargaining parties have not been able to conclude. In their view, this constitutes arbitrary imposition of compulsory arbitration contrary to the principle of free, voluntary negotiation. They note that while this provision was introduced on 1 December 2004, it was not an issue in practical terms until it was first invoked in February 2019 in a case in which bargaining had been protracted and acrimonious and had come to a standstill.

The Committee notes that the Government for its part rejects the interpretation that this amounts to arbitrary imposition of collective agreement terms and states that section 50J does not apply simply because the parties cannot reach agreement over a particular matter or more generally. The Government emphasizes that the section provides a specific remedy of last resort for a serious and sustained breach of the duty of good faith. In such cases, the Employment Relations Authority may make a determination fixing the provisions of the collective agreement following the application of a party only if all of the following conditions are met: the breach of duty relates to bargaining; it was sufficiently serious and sustained as to significantly undermine bargaining; all other reasonable alternatives for reaching agreement have been exhausted; fixing the provisions of the agreement is the only effective remedy for the party affected; and the authority considers it is appropriate in the circumstances so to do. The Government adds that the Committee in its 2012 General Survey (paragraph 247) has already referred to the need for measures to address improper practices in collective bargaining such as proven bad faith and unwanted delays and that compulsory arbitration may be acceptable when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities. The Government emphasizes that the sole case of the use of this remedy in this 15-year period involved protracted bargaining over several years and the prior use of mediation and facilitation and the matter was brought before the Employment Court which held that the employer had breached the duty of good faith in 2015 and continued to do so by delaying and attempting to frustrate bargaining. The Government asserts that there was thus neither an arbitrary process nor outcome but rather a prolonged process involving careful consideration by independent bodies and the need to provide a remedy to the affected party only when specific conditions are met and after all other avenues have been exhausted.

Finally, the Committee notes the observations of the NZCTU which support the 2018 amendments to the Act, which it considers have advanced the extent to which New Zealand law gives effect to its obligations under the Convention to develop mechanisms for the promotion of collective bargaining, support the rights of workers and their unions to freely organize, and protect union members from discrimination.

The Committee observes that the amendment to section 31 of the Act specifically provides that the object of Chapter 5 on collective bargaining includes the duty of good faith that requires parties bargaining for collective agreements to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to, while section 33 which previously provided that the duty of good faith did not include a duty to conclude an agreement has been replaced by a section defining the elements for determining what may or may not constitute “genuine reason”. In this respect, section 33 subsection 2 specifies that “a genuine reason not to conclude an agreement does not include opposition or objection in principle to bargaining for, or being a party to, a collective agreement or to including rates of wages or salary in a collective agreement or disagreement about including a bargaining fee clause” and adds the situation of unsettled pay equity claims. Subsection 3 provides that opposition to concluding a multi-employer collective agreement is a genuine reason if that opposition is based on reasonable grounds. The Committee notes that these provisions, which had been effective in the country for over a decade in the past and have been reintroduced, do provide a certain flexibility to employers in the collective bargaining process not to conclude an agreement based on notions of good faith and genuine reason and that the amended section 33 appears to principally aim at deterring situations where a party is simply in principle opposed to bargaining or including wage rates or where there is disagreement about a bargaining fee clause. The Committee further observes, however, that section 50J providing for the possibility of the Employment Relations Authority to fix provisions of a collective agreement where there has been a serious and sustained breach of the duty to bargain collectively in good faith is connected with the re-introduction of the amendments to sections 31 and 33 and may therefore also be invoked where a breach of the duty to bargain collectively in good faith concerns the non-conclusion of a collective agreement without genuine reason. The Committee considers that, under the Convention, ensuring the voluntary nature of collective negotiations is inseparable from the principle of negotiation in good faith if the machinery to be promoted under Article 4 of the Convention is to have any meaning. The Committee recalls in this respect that the overall aim of this Article is the promotion of good faith collective bargaining with a view to reaching an agreement on terms and conditions of employment. The Committee observes that sections 31, 33 and 50J as currently drafted had not given rise to any comments by the social partners for the decade in which they were jointly in force until the application of section 50J in 2019 imposing a collective agreement for a period of 14 months on an employer found to have been in serious and sustained breach of the duty of good faith. The Committee observes that the Act provides for significant consideration before section 50J can be applied, including the right of appeal to the Employment Court for a determination of the existence of a serious and sustained breach. The Committee notes that more information would be required in order to determine whether the good faith obligation in section 33 may hinder the voluntary nature of collective bargaining. Recalling the limited circumstances in which compulsory arbitration may be imposed as referred to by the Government and BusinessNZ and IOE, the Committee requests the Government to provide detailed information on the use and practical implementation of sections 31, 33 and 50J and in particular on any specific cases where genuine reason not to conclude a collective agreement was either found to be present or not and the resulting consequences.

Fair pay agreements. The Committee notes the concerns raised by BusinessNZ and the IOE in relation to the Government’s announced intention to introduce Fair Pay Agreements (FPAs) covering all employees in an industry or occupation. Only unions would be allowed to initiate bargaining for an FPA and they will specify whether it will be industry-based or occupationally based, as well as the scope and coverage. There is no ability for employers to opt out and any disputes will go to compulsory arbitration with no right of appeal against the terms that are fixed. According to BusinessNZ and the IOE, many of the proposed provisions of the FPA process are also physically cumbersome, unworkable and ultimately ineffective. On the initiation of the process, BusinessNZ and the IOE indicate that the union must show that it represents at least 1000 workers or 10 per cent of the workforce or it is in the public interest to have an FPA for that industry or occupation. It is then for the Government to administer the public interest test, thus inserting itself into the FPA bargaining process. Secondly, they note that union density is very low particularly in the private sector where it is around 9 per cent which means that almost any industry or occupation can be forced into bargaining for an FPA by a union that represents a tiny fraction of the workforce to be covered. In their view, this would be contrary to the principle whereby the most representative organizations have primacy of rights to collective bargaining. They further raise concerns about the mode for ratification of an FPA through a simple majority vote of employers and employees, with smaller employers’ votes to be weighted according to the number of employees. Two failed ratification votes however will result in an arbitrated outcome being imposed, without a right of appeal. They consider this contrary to the principle of free and voluntary collective bargaining as well as of the good faith obligations in the domestic law governing collective bargaining generally, while further observing that extensive good faith obligations in the Act will be difficult to meet with respect to ratification. Finally, they refer to a number of statements of the Government which they consider demonstrate the Government’s cognizance that its proposals would not be in compliance with the Convention and maintain that the nature of all of the alleged breaches is so significant that failure to address them risks weakening the ILO core values and integrity of the standards supervisory system.

The Committee notes the Government’s indication that FPAs are the result of a long, considered and inclusive policy process undertaken over several years. The Government indicates that the FPA Bill is expected to be introduced later in 2021, however at this point the legislation is yet to be drafted, tabled in Parliament, and heard by the Select Committee (including the hearing of public submissions), let alone be voted into law and take effect. The Government nevertheless provides context to the FPA system including entrenched weaknesses in the labour market with wages lagging behind increases in labour productivity and low-quality jobs having grown significantly in prevalence. A decentralised and uncoordinated system of collective bargaining has been operating in the country since the 1990s with the result that most employees are not covered in a union or by a collective agreement, with collective bargaining coverage at around 17 per cent for the last two decades, down from around 70 per cent 30 years ago. Most collective bargaining is confined to the enterprise level and most bargaining per se happens between individual employers and individual employees. The Government also indicates that there is increasing evidence of a race to the bottom in some sectors and believes that the current employment regulatory landscape does not promote effective multi-employer or occupational or cross-industry bargaining at levels that might reduce the negative factors of low wages and wage growth, the decoupling of wages from productivity growth, poor labour practices vulnerability, and an over-reliance on statutory minimum conditions as the norm rather than a floor for bargained terms and conditions. The Fair Pay Agreement Working Group recommended an approach to developing an FPA system to create a new bargaining mechanism to set binding minimum terms at the industry or occupation level. According to the Government, these will build on national minimum standards and provide a new floor for enterprise level collective agreements where an FPA has been concluded, thus improving outcomes for employees with low bargaining power. Firms will benefit from better sector-wide co-ordination and dialogue, which should reduce transaction costs and allow parties to capitalise on the potential to address industry or occupation-wide issues and opportunities. The level playing field provided by FPAs will support firms to improve wages and conditions without fear of being undercut on labour costs by competitors and create incentives to increase profitability or market share through increased investment in training, capital and innovation. The Government adds that it is therefore important to note that the policy elements that have been developed to date reflect New Zealand’s particular situation and the factors that have led to it (as noted above) and that the key aim of an FPA system is to drive enduring, transformational system-wide change benefitting workers – in particular those in low paid jobs, or in sectors where there is low or no effective collective representation or bargaining. To embed and support this change requires specific measures to incentivise use of the system and generate effective and wide-reaching outcomes that demonstrate its benefits. In light of the rationale and objectives for FPAs, the Government considers that it is appropriate that only workers, through unions, be able to initiate bargaining for an FPA. As regards the threshold for triggering negotiation, the issues raised by BusinessNZ regarding the generally low level of unionisation in New Zealand actually highlight why this level of threshold is necessary. Employees will be represented in bargaining by registered unions. Unions other than the one that applies to initiate FPA bargaining, will be able to decide whether they want to be a bargaining party to that FPA. Union bargaining parties will also have an obligation to represent non-union members within coverage. The Government further contends that it is not ‘inserting itself into the bargaining process’ as alleged by BusinessNZ – the administration of legislative frameworks for collective bargaining by the competent authority is a common and necessary feature of bargaining systems generally. Nor is the extension of bargaining outcomes to employers and workers not directly involved in the original bargaining a unique feature of FPAs, which will apply to whole sectors or occupations once settled. The Collective Agreements Recommendation, 1951 (No. 91) of the ILO makes explicit provision in its guidance for this. The use of arbitration also needs to be seen against the objective of FPAs of promoting sectoral collective bargaining as a means of addressing the situation of low paid, vulnerable workers and the fact that industrial action by either side will be prohibited within the FPA system. Only if all other reasonable alternatives for settling the dispute have been exhausted or a reasonable time period has elapsed within which the bargaining sides have used their best endeavours to identify and use reasonable alternatives to negotiate and conclude a FPA, and bearing in mind that industrial action is not permitted within the FPA system, will the Authority then be able to proceed to determine the matter. The Government reiterates that, although compulsory arbitration is generally seen as inconsistent with Convention No. 98, it is permissible in specific circumstances as highlighted in the 2012 Committee’s General Survey (paras. 247 and 250), including when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities or in its use in first agreements.

The Committee notes the observations of the NZCTU supporting the development of legislation to allow bargaining of industry standard agreements, to be known as Fair Pay Agreements. In its view, the direction indicated by the Government for the development of this legislation gives effect to Article 4 of the Convention by implementing mechanisms appropriate to the country’s national conditions for the negotiation and regulation of terms and conditions at an industry sector level. The Government’s development of the Fair Pay Agreement mechanism has proceeded on the basis of recommendations from a tripartite working group, with the participation of the NZCTU and BusinessNZ and which were developed in the context of New Zealand’s specific national conditions, including the absence of existing effective mechanisms to facilitate industry-level sector bargaining. The Committee further notes the NZEI’s view that there is an urgent need for this system to be developed to address previous lacunae and for education to take place to ensure that both employers and employees understand the potential benefits the system can afford them and are able to engage effectively in the system.

The Committee observes that the FPA system is aimed at promoting collective bargaining, especially for low-paid workers and those in vulnerable situations, where trade union representation has been particularly low and, according to the Government, is based on recommendations emanating from a tripartite working group including the main social partners in the country. While no legislation has apparently yet been drafted, the Committee takes note of a number of concerns that have been raised by BusinessNZ and the IOE and the explanations provided by the Government. As regards the initiation of negotiations, while the Committee observes that it has found over the years a variety of industrial relations systems to be in conformity with the Convention including those that are not based on a system of most representative organizations, the Committee does consider that nothing should impede the possibility of representative employers’ organizations or multiple employers in the industry or occupation to initiate negotiations should they so wish. As regards the concern that any disputes will go to compulsory arbitration with no right of appeal against the terms that are fixed while employers are not able to opt out, the Committee first wishes to recall that compulsory arbitration in the case that the parties have not reached agreement is generally contrary to the principles of collective bargaining. In the Committee’s opinion, compulsory arbitration is only acceptable in certain specific circumstances, namely: (i) in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis. As regards the possibility of employers to opt out, while duly noting the Government’s distinction between an agreement which covers the industry or sector fully at the outset and a collective bargaining agreement between some parties in a given industry or sector and extended through government action to cover the entire sector, the Committee considers that a number of the principles set out in Recommendation No. 91, namely, that the collective agreement covers a number of the employers and workers concerned which is, in the opinion of the competent authority, sufficiently representative bearing in mind the specific conditions, and that the employers and workers to whom the agreement would be made applicable should be given an opportunity to submit their observations, are a sound basis for development of industry-wide agreements. In light of the above, the Committee requests the Government to take the above considerations into account in its drafting of the FPA Bill and requests it to transmit a copy of the proposed provisions as soon as they are drafted.

COVID-19. Finally, the Committee notes the comments of the NZEI concerning the challenges of the COVID-19 pandemic and that, throughout the pandemic response, the Government has consulted with education unions ahead of all advice going out to schools; been responsive to feedback; continued to pay the salaries and wages of school employees and provided additional funding in specific circumstances, such as supporting vaccinations. The Committee further notes the NZEI concerns however that in the early childhood sector, which is largely privately operated, the impact has been much more severe. There is very limited collective agreement coverage in the sector and few other industrial mechanisms for setting out employment terms and conditions for employees, while employers exercise considerable power over decision making with little or no union engagement. The NZEI emphasizes that the COVID-19 response requires a carefully nuanced conversation and unions should be involved. As regards vaccinations, the NZEI indicates that the Ministry of Education has also consulted with education unions on recent advice about vaccination and generally been responsive to feedback. The Government in its reply adds that it is conscious of the need to achieve an appropriate balance of individual rights, workplace health and safety duties and public health objectives and has been consulting with affected sectors and unions – directly and via the peak union body, the NZCTU, throughout the process of policy development.

The Committee notes the observations made by Business New Zealand (BusinessNZ), received on 1 September 2021, as well as the observations from the New Zealand Council of Trade Unions (NZCTU), which were received with the Government’s report. The Committee requests the Government to provide its comments in this respect.

Article 2 of the Convention. Operation of the consultative procedures. The Committee notes that the Government reports an increased level of consultation and collaboration with the social partners due to the range of policy reforms proposed and the challenges experienced in developing a comprehensive social, economic and health response to the COVID-19 pandemic. It indicates that this has resulted in a more structured approach applied to specific issues (in the form of taskforces or working groups), but that the Convention continues to be applied largely in an informal manner, with regular meetings on matters of interest, supported by more formal processes as required. The main tripartite body is the Future of Work Tripartite Forum, which first met in August 2018 and investigates the challenges and opportunities presented by the changing nature of work and employment. The Government indicates that it is willing to consider whether other mechanisms could be employed to ensure a smoother process of tripartite consultation and dialogue across the issues covered by the Convention, provided that they do not introduce unnecessary formality or rigidity. In its observations, BusinessNZ indicates that the flexibility of New Zealand’s informal consultation process provides greater opportunity for collaboration than a more formal structure. It also reports, however, that the more recent consultations have often involved organizations beyond the social partners, which has not always been conducive to achieving practical solutions. The Committee requests the Government to continue to provide information on the content and outcome of consultations held with the social partners to examine the manner in which the Convention could best be applied and to take the necessary measures to improve the operation of the procedures ensuring effective tripartite consultation with respect to the matters covered by the Convention.

Articles 2 and 5. Effective tripartite consultations. The Committee previously noted the Government’s indication that, in addition to consultations on the matters required under Article 5(1) of the Convention, both the NZCTU and BusinessNZ have been part of the Joint Working Group on Pay Equity Principles, the Film Industry Working Group and the Tax Working Group. The Government adds that the tripartite consultations on pay equity and the film industry resulted in proposals for legislative change. The Government also provides examples of efforts made to promote a culture of social dialogue and consultation through engagement of the social partners in groups and task forces, including: (i) the Fair Pay Agreements Working Group 2018; (ii) the Review of Temporary Migrant Exploitation Consultation Group; and (iii) the Regional Skills Leadership Groups established to help manage changing skills and workforce needs and support the recovery of labour markets disrupted by COVID-19. With respect to the effective tripartite consultations held during the reporting period on the matters covered by Article 5(1) of the Convention, the Committee notes with interest the Government’s indication that consultations with the social partners took place in 2018 and 2019 in relation to the ratification of the Protocol of 2014 to the Forced Labour Convention, 1930, which New Zealand ratified on 13 December 2019 (Article 5(1)(c)). The social partners were also consulted with respect to the 2019 ILO Survey on Maritime Conventions and Recommendations, the abrogation of eight Conventions, the withdrawal of nine Conventions and 11 Recommendations. The Committee further notes that the NZCTU, in its observations, indicates that it has participated actively in each of the above-mentioned opportunities for tripartite consultation, which have been productive in contributing to effective policy development. The Committee requests the Government to continue providing updated information on the content and outcome of the consultations held on each of the matters concerning international labour standards covered by Article 5(1) of the Convention.

Article 4(2). Training. The Government reports that: (i) there are no current arrangements to finance the training of participants in consultative procedures; (ii) the resourcing of specific consultative arrangements is determined on a case-by-case basis; and (iii) it is aware of the importance of capacity and resourcing to ensure effective consultation and dialogue. The Committee requests the Government to provide updated information on any arrangements made for the financing of any necessary training of participants on the consultative procedures. It reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

COVID-19. In the context of the global COVID-19 pandemic, the Committee recalls the comprehensive guidance provided by international labour standards. It encourages the Government to engage in tripartite consultation and social dialogue more broadly as a solid foundation for developing and implementing effective responses to the profound socio-economic impacts of the pandemic. The Committee invites the Government to provide updated information in its next report on measures taken in this respect, in accordance with Article 4 of the Convention and Paragraphs 3 and 4 of Recommendation No. 152, including with regard to steps taken to build the capacity of the tripartite constituents and strengthen mechanisms and procedures, as well as challenges and good practices identified.

The Committee takes note of the supplementary information provided by the Government in light of 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 and the social partners, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations made by Business New Zealand (BusinessNZ) and the New Zealand Council of Trade Unions (NZCTU).

Articles 1 and 3 of the Convention. Contribution of the employment service to employment promotion. In its previous comments, the Committee requested the Government to continue to provide information on the measures taken to achieve the best possible organization of the employment market and the results of the measures implemented, including the impact of the welfare reforms on the quality of employment services and employment promotion. The Committee notes that the Government reiterates its commitment to improving well-being and living standards in the country, including through the development of an Economic Strategy and an Employment Strategy, the latter setting out the Government’s vision for the labour market and providing a roadmap for a series of action plans focused on improving employment outcomes for population groups experiencing poor labour market outcomes (Māori, Pacific people, youth and persons with disabilities). Consultations on the reform to the vocational education and welfare systems have started in 2019 and the Ministry of Sustainable Development is currently working through the May 2019 recommendations of the Welfare Expert Advisory Group on resourcing and strengthening the provision of employment support through the welfare system. The Government further points to the Social Security Amendment Act (No. 2) 2015, as well as the Social Security (Extension of Young Persons Services and Remedial Matters) Amendment Act 2016, which uses community-based providers to deliver wrap-around support to help young people into work, education or training. It also informs about the functioning of several welfare programmes including the Mana in Mahi programme targeted towards young people aged between 18 and 24 years, as well as to the NEET service that is addressed to 16- and 17-year-olds that are not in education, employment or training. The Government highlights that its priority consists in supporting people to achieve meaningful and sustainable employment, while also recognising the value of unpaid work, such as caring for children and other family members and community-based volunteering. The Committee notes that in its supplementary report, the Government refers to several measures taken to respond to the economic impact of COVID-19, including wage subsidies accessible to the majority of employers, leave support and immediate access to benefits. The Government further indicates that the Regional Skills Leadership Groups established in 2019 have been supplemented with additional interim offices to ensure that the immediate labour market and skills needs of the regions are met.

The Committee further notes that BusinessNZ observes that Work and Income, the public employment service, is perceived by many employers as providing job applicants who are less qualified and reliable than those found elsewhere and that employers choose instead to advertise their own job vacancies. BusinessNZ also voices concerns as to the employability of individuals trained solely in training institutions and lacking on-site experience, pointing to problems inherent in the proposals to reform the education and training system. In its additional observations, BusinessNZ maintains that the manner in which wage subsidies have been established does not necessarily assist smaller employers in difficult situations as a result of the pandemic. The NZCTU expresses concern that the welfare reforms are focused on reducing the number of beneficiaries and not on the quality and sustainability of employment. It considers that more emphasis should be placed on a set of active labour market employment policies. In their additional observations, the NZCTU alleges that some employers might have used benefits without complying with labour legislation. In view of the concerns raised, the Committee requests the Government to provide updated detailed information on the nature and impact of measures taken to achieve the best possible organization of the employment market, particularly in the framework of the measures taken to address and mitigate the effects of the COVID-19 pandemic. The Committee also requests the Government to provide information on any measures taken or envisaged to render the public employment service more appealing to employers in the country, so as to ensure that the employment service contributes to the fullest extent possible to the achievement and maintenance of full and productive employment.

Articles 4 and 5. Cooperation of workers’ and employers’ representatives. The Committee previously requested the Government to indicate the manner in which consultations are held with regard to the matters covered by the Convention. The Committee notes the Government’s indication that advisory committees and working groups are set up for high-level projects. It welcomes the detailed information provided on the Welfare Expert Advisory Group (WEAG) established in May 2018 to provide advice and recommendations on the future of New Zealand’s social security system in consultation with key stakeholder groups (Iwi and Māori, Pacific Peoples and persons with disabilities. The Government also refers to the consultation group for the temporary migrant worker exploitation review, composed of representatives from business, unions, migrants and international students, as well as to the New Zealand Disability Strategy Revision Reference Group, the majority of whose members are persons with disabilities. The Committee notes, however, that according to BusinessNZ, the WEAG seems to have focused more on the provision of social welfare than employment, with no direct employer input in the expert group. The NZCTU, for its part, acknowledges the establishment of the WEAG, but suggests that there are failures in implementing its recommendations. It also considers that more focus should be given to active labour market employment policies and commends the Government’s efforts to set up a tripartite working group on the Future of Work. In view of the observations of the social partners, the Committee requests the Government to provide information on the implementation of the recommendations provided by the WEAG as well as information on the manner in which the Government cooperates with workers’ and employers’ representatives in the development of the employment service policy and other matters covered by the Convention.

Article 6(b)(iv) and (c). Migrant workers. In its previous comments, the Committee requested the Government to provide information on the measures taken to facilitate any movement of workers from one country to another. The Committee notes the Government’s indication that it has developed and proposed changes to immigration settings to ensure that the immigration system supports the country’s economy and labour market, including better matching the skills needed with those available through immigration, ensuring that temporary work visas are granted for genuine regional shortages and investing in immigration compliance capability. The Government is currently considering changes to employer-assisted visas with focus on employers placing more nationals into jobs and ensuring that temporary migrant workers are not exploited in employment and have wages and working conditions consistent with national values. There is also an in-depth policy and operational review ongoing to better understand temporary migrant worker exploitation and identify impactful and enduring solutions, as well as many other initiatives related to migrant exploitation (increased immigration fees and levies, migrant sex workers research and the restoration of the right to prescribed rest and meal breaks for migrant workers through the 2018 amendment of the Employment Relations Act). The Government also informs that it has replaced the employer-assisted post-study work visa with a post-study work visa providing open work rights for international students of a certain qualification level. The Committee notes that in its supplementary report, the Government refers to the “Visitor Care Manaaki Manuhiri (Assistance for Foreign Nationals Impacted by COVID-19) Programme” that consists of in-kind assistance to migrant workers that experience serious financial hardship and are unable to meet their basic needs. Furthermore, the Government has allocated $50 million to address temporary migrant exploitation, as it is estimated that migrants are at increased risk during the pandemic. Measures include an improved system to report exploitation and an information and education action plan for migrants and employers on their rights and obligations.

The Committee notes the observations of BusinessNZ, indicating that the migrant worker situation is currently in a state of flux, with many employers unable to find the skilled or unskilled workers they need. It further suggests that while the Government’s focus on employing nationals is understandable, migrant workers are urgently needed and accessing their skills is proving difficult given the current immigration delays. BusinessNZ adds that ,while more cases of migrant exploitation are currently before the courts, the majority involve migrant exploitation by migrant employers who are unfamiliar with or reluctant to observe the country’s laws. BusinessNZ refers in its additional observations to the difficulties that employers have in finding workers in agriculture and horticulture, sectors that depend highly on immigration due to border restrictions. Taking due note of the information provided and in view of the concerns expressed by BusinessNZ, the Committee requests the Government to provide information on the impact of the immigration system reform on the movement of workers from one country to another and on the employment of migrant workers in practice particularly in the framework of the measures taken to address and mitigate the negative effects of the COVID-19 pandemic. The Government is requested to provide statistics on the employment situation of migrant workers, including those benefitting from a post-study work visa.

Finally, the Committee invites the Government to provide updated information in its next report on the impact of the global COVID-19 pandemic on the implementation of the measures taken or contemplated to give effect to the provisions of the Employment Service Convention, 1948 (No. 88).

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.

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.

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(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee previously noted that in 2015 a working group made up of government and union representatives developed a “Standard Policy for the Prevention and Response to Sexual Harassment in the Public Service” and that, starting from 2016, the Government was expected to collect data on the number of sexual harassment complaints as part of the annual Human Resource Capability Survey. Noting the lack of information provided on the application of the Standard Policy in the public sector, the Committee notes the Government’s indication, in its report, that the State Services Commission supplemented its Sexual Harassment Policy Guidelines with advice and guidance on unwelcome behaviour, workplace behaviours guidance and speaking up in the public service. As regards the private sector, the Government states that WorkSafe, the health and safety regulator, has developed and launched resources on its website for employers and employees on identifying and dealing with sexual harassment in the workplace. This includes advice for workers and businesses, a model sexual harassment policy as guidance for businesses, and a template for workers to report sexual harassment at the workplace. The Government adds that the Ministry for Women is working to address gender inequalities that exist around sexual violence as a matter of priority. The Committee notes that, in its observations, the NZCTU supports the provision of resources for employers and workers on harassment, but highlights the deficiencies of the current approach, suggesting in particular that WorkSafe should begin to initiate investigations in workplaces with health and safety risks arising from harassment. In that regard, the Committee notes that, in its 2018 concluding observations, the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) expressed concern about: (1) the prevalence of harassment in high schools which disproportionally affect women and girls; (2) the high number of cases of sexual harassment in the workplace, in particular within the police, the defence force, the legal professions and the health sector; and (3) the severe underreporting of such incidents. In 2017, the Human Rights Commission received 123 complaints of unlawful discrimination alleging sexual harassment, which is a 43 per cent increase in sexual harassment complaints compared with the previous 10 years. The Committee also notes that CEDAW expressed general concern at the alarmingly high level of gender-based violence against women, with one in three women being subjected to physical or psychological violence, especially domestic and sexual violence, which disproportionally affects Maori women and women belonging to ethnic minority groups, with very low levels of reporting and a high rate of recidivism, particularly within the Maori community (CEDAW/C/NZL/CO/8, 25 July 2018, paragraphs 23, 25 and 35). The Committee notes with interest the adoption of the Domestic Violence - Victim’s Protection Act 2018 (2018 No. 21), which provides that employees who are affected by family violence now have the right to (1) take up to ten days of paid domestic violence leave each year; (2) ask for short-term flexible working arrangements; and (iii) not be treated adversely in the workplace because they might have experienced domestic violence. It further notes the Government’s statement that the definition of “violence” in the legislation is deliberately broad and includes psychological, physical, sexual or economic abuse. It notes that the NZCTU supports the introduction of domestic violence employment protections in the national legislation. The Committee asks the Government to provide information on the measures taken to address the high number of cases of sexual harassment in the workplace, with a view to preventing and addressing sexual harassment both in the private and public sectors, in particular through the application of the Standard Policy for the Prevention and Response to Sexual Harassment in the Public Service. It asks the Government to provide information on the number, nature and outcome of any complaints of sexual harassment registered at the workplaces or dealt with by the labour inspectors or the courts. The Committee further asks the Government to provide information on the application of Domestic Violence – Victim’s Protection Act 2018, including on the measures taken by employers to ensure the non-discrimination of domestic violence victims, as well as on any activity undertaken to raise awareness of the new legislation among employers, workers, and their organizations.

Articles 2 and 3. Achieving equality in the public service. The Committee previously noted that vertical occupational segregation based on ethnicity and gender persists and requested the Government to provide information on the measures implemented in the framework of the Equality and Diversity Policy with a view to promoting equal opportunities in the public service. It notes the Government’s indication that, in 2017, Public Service chief executives committed to the State Sector Diversity and Inclusion Programme (Papa Pounamu) which strives to support a public service representing all New Zealanders by embracing diversity, creating inclusive workplaces and building sustainable organization change, with a focus on women, persons with disabilities, ethnicity, culture and LGBT people. It notes that programmes of work are currently underway as part of this programme in order inter alia to increase awareness of unconscious bias and introduce diversity metrics in the public service. The Committee further notes with interest that the Public Service Act 2020 (2020 No. 40) provides for the developing and monitoring of equal employment opportunities programmes for the public service, including diversity and inclusiveness, which is defined as a programme aimed at identifying and eliminating all aspects of policies, procedures, and other institutional barriers that cause or perpetuate, or tend to cause or perpetuate, inequality with respect to the employment of a person or group of persons (sections 73 to 75). Noting that only 44 per cent of chief executives of public departments were women in June 2018, the Committee notes that the Government set a target of 50 per cent for women’s participation on public sector boards and committees to be met by 2021. The Committee welcomes this information. Regarding the ethnic composition of the public service, it notes, from the workforce data available on the Public Service Commission website, that, in 2019, Europeans remain the largest group in the public service (67.3 per cent) and the proportion of Maori and Pacific staff remains about the same (15.5 per cent and 9.2 per cent respectively), while the proportion of Asian staff is increasing (11.1 per cent). The Committee further notes that Europeans are on average paid more than other ethnicities, and that the Maori pay gap, the difference between average pay for Maori and non-Maori employees, was estimated at 9.9 per cent in 2019, while the Pacific pay gap was estimated at 20.1 per cent. Ethnic diversity amongst the chief executives comprises 90.3 per cent Europeans, 16.1 per cent Maori and 3.2 per cent Pacific peoples. The Committee notes the Government’s statement that the Office of Ethnic Communities (OEC) keeps a database of skilled New Zealanders from ethnic communities who are interested in and suitably qualified to be considered for appointment to a number of government boards, committees and advisory groups. The OEC is consulted by agencies that support the Government’s appointment of candidates to more than 400 State Sector boards and committees. The Committee notes that the OEC is also working to improve intercultural awareness in public and private organizations through its Intercultural Capability eLearning (ICE) online programme to help organizations manage an ethnically diverse workforce. The Committee asks the Government to provide information on the specific measures taken to promote equal opportunities in the public service and their impact, including in reducing vertical occupational segregation based on ethnicity and gender, in particular in the framework of the State Sector Diversity and Inclusion Programme. It further asks the Government to provide information on the number of equal employment opportunities programmes for the public service elaborated and implemented as a result of the Public Service Act 2020, and more particularly on the barriers identified as causing inequality in employment. The Committee asks the Government to continue to provide information, including statistics, on the progress made in improving equal employment opportunities for women, as well as Maori, Pacific Island and Asian peoples in the public service.

Equality of opportunity and treatment for men and women. Occupational segregation. Referring to its previous comments, the Committee notes that, following the adoption of the Parental Leave and Employment Protection Amendment Act 2017 (2017 No 45), paid parental leave has been extended from 18 to 22 weeks on 1 July 2018, with a further extension to 26 weeks on 1 July 2020. The Act also provides for “keeping in touch” hours for workers who may be away from their workplace during paid leave to be paid to come into work for up to 40 hours during their leave period in order to maintain contact with their employers. In its supplementary information, the Government indicates that short-term changes were introduced to allow some workers to go back to work temporarily during the COVID-19 outbreak, because either their skills, experience or qualifications mean that nobody else could fill the role, or there was unusually high demand for workers in a particular role, without losing their remaining entitlement to parental leave. In its observations, Business New Zealand commended the Government for its decisions to allow essential workers to return to work without foregoing any remaining parental leave entitlement. The Committee notes that the NZCTU supports the extension of the paid parental leave, while considering that additional reforms of the parental leave should be considered in order to ensure (1) further extension of the duration of paid parental leave, as well as (2) a fairer distribution of family responsibilities between men and women and facilitate the reconciliation between family and work obligations. The Committee notes that, according to the 2020 Global Gender Gap Report of the World Economic Forum, the labour force participation rate of women was 76.4 per cent (compared to 85.8 per cent for men), with a high proportion of women employed part-time (31.7 per cent compared to 11.6 per cent for men) or doing unpaid work (18.06 per cent compared to 10.56 per cent for men). It further notes, from the statistical information provided by the Government, that while women comprise the majority of civil servants (70 per cent in 2018), only 44 per cent of chief executives of public departments were women in June 2018. As regards the private sector, the Committee notes that the representation of women in leadership roles and boards remains much lower, as only 19 per cent of directors of companies listed on the New Zealand Stock Exchange Main Board are women and 56 per cent of enterprises have no women in senior roles. It further notes, from the 2019 Government’s report under the national-level review of implementation of the Beijing Declaration, that women are still under-represented in science, technology, engineering and mathematics (STEM), information and communication technology (ICT), and construction and trades industries. While women are gaining qualifications at a higher rate than men, their skills are not being translated into greater career and development opportunities, as 47 per cent of women work in occupations that are at least 70 per cent dominated by their own gender. In Business New Zealand’s view, the choices made by women for certain areas of study or apprenticeships may also reflect their personal preference. As regards vocational training, the Committee notes the Government’s indication that while the number of female industry trainees increased from 40,733 in 2014 to 50,900 in 2017, their proportion remains relatively static over the last five years (35 per cent in 2017). The proportion of female apprentices also remained relatively static between 2013 (11 per cent) and 2017 (12 per cent). The Committee further notes that, in its concluding observations, the CEDAW expressed specific concern about (1) the limited access to secondary and tertiary education for many girls and women living in rural areas; (2) the increasing rate of girls who drop out of school, including as a result of teenage pregnancy; and (3) the fact that women and girls are concentrated in traditionally female-dominated fields of study and under-represented in science and technology (CEDAW/C/NZL/CO/8, 25 July 2018, paragraph 31). The Committee asks the Government to provide information on the measures taken to promote equality of treatment and opportunity between men and women, and on the results of such measures, in particular on vertical and horizontal occupational gender segregation, by enhancing women’s access to a wider range of jobs and to jobs at higher levels, in particular in sectors where women are less represented such as in STEM, ICT, construction and trade industries. It further asks the Government to provide information on any evaluation undertaken of the Parental Leave and Employment Protection Amendment Act 2017 and its impact on ensuring equality of opportunity and treatment between men and women, as well as on any other measures adopted to promote the reconciliation of family and work obligations and address any stereotyped assumptions that the main responsibility for family care lies with women. The Committee asks the Government to continue to provide statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions.

Promoting equality with respect to race, colour and national extraction. Maori and Pacific Island people. The Committee previously noted the various initiatives undertaken to improve the educational and skills levels and the employment situation of Maori and Pacific Island people. It notes the Government’s indication, in its report, that new goals areas were developed in 2017, under the He kai kei aku ringa (HKKAR) Strategy to 2040 to support Maori economic development, focusing on employment; supporting Maori youth to define and lead their economic aspirations; growing Maori enterprises; increasing Maori participation in regional economies and upskilling the Maori workforce. The Government however indicates that there has been no evaluation or monitoring of the HKKAR since the 2017 refresh. It adds that key initiatives were implemented to support a step change in the Pacific economy focusing mainly on youth education and training, encouraging their participation in STEM, as well as supporting Pacific enterprises and providing employment opportunities in the public sector. The Committee notes, from the statistical information provided by the Government, that during 2018, there were 137,785 funded trainees participating in industry training, of which 17.72 per cent were Maori and 8.4 per cent were Pacific Island people. It also notes that the number of funded New Zealand apprentices participating in industry training increased from 25,238 in 2015 to 50,475 in 2018, of which 16.2 per cent were Maori and 6.1 per cent were Pacific Island people. However, Maori students have the lowest proportion of students remaining at school until 17 years old (71.9 per cent), compared to Pacific Island People (82.9 per cent) and European (84.9 per cent). The Committee further notes that the unemployment rate among Maori and Pacific Island People is approximately twice as high as the general employment rate (8.7 per cent and 8.1 per cent respectively, compared to 4.3 per cent at national level). It notes that, in Business New Zealand’s view, it needs to be recognized that any lack of employment opportunities for Maori is directly related to a lack of educational achievement rather than to employment discrimination. In that regard, the Committee notes that a new Employment Strategy was launched in August 2019, under which specific actions plans to improve employment outcomes inter alia for Maori and Pacific Island people will be developed in a near future.

In its supplementary information, the Government indicates that young people are expected to be hit hard by the impacts of COVID-19, particularly young Maori, and that to that end supplementary budget was allocated to the He Poutama Rangatahi (HPR) Programme which aims at helping young people who are currently not in education, employment or training to find work. The Committee welcomes this information. The Committee also notes that, in their recent concluding observations, several United Nations (UN) treaty bodies expressed concern about : (i) persistent disparities in the enjoyment of the right to education, whereby Maori and Pacific Island students, notably at secondary school and university levels, achieve lower outcomes than those of European background and experience higher rates of stigma at schools; (ii) persistent discrimination against Maori and Pacific Island people, in particular women, in employment; (iii) the under-representation of Maori and Pacific Island people in the top three tiers of public service management; and (iv) the high numbers of youth, particularly among Maori and Pacific Island people, who are not in employment, education or training (CEDAW/C/NZL/CO/8, 25 July 2018, paragraph 33; E/C.12/NZL/CO/4, 1 May 2018, paragraphs 27 and 48; and CERD/C/NZL/CO/21-22, 22 September 2017, paragraph 29). The Committee notes that, in the framework of the Universal Periodic Review (UPR), in 2019, the UN Human Rights Council specifically recommended to address discrimination in employment and improve access to education and employment for Maori and Pacific Island people, in particular women (A/HRC/41/4, 1 April 2019, paragraph 122). The Committee asks the Government to pursue its efforts to enhance Maori and Pacific Island People’s economic empowerment and access to training and employment, in particular in the framework of any targeted action plan elaborated under the new Employment Strategy. It also asks the Government to provide information on the implementation of the other ongoing programmes and initiatives, such as the He kai kei aku ringa Strategy and the He Poutama Rangatahi Programmme, as well as on their results and any assessment made. Finally, the Committee asks the Government to continue to provide statistical information on the participation and completion rates of men and women Maori and Pacific Island people in vocational training and education, and their participation rates in employment and occupation, disaggregated by occupational categories and positions, both in the public and private sectors.

Collective agreements and workplace initiatives. Referring to its previous comments, the Committee notes the Government’s repeated indication that no information is available on the progress made in including equal employment opportunities provisions for Maori and other ethnic minorities in workplace policies in the private sector and in collective agreements. The Committee again encourages the Government to undertake an assessment of the rates of inclusion of equal employment opportunities provisions concerning Maori and other ethnic minorities in workplace policies in the private sector and in collective agreements, and the results achieved in improving equality of opportunity and treatment in employment in the private sector. It again asks the Government to provide any available information in that regard.

Migrant workers. The Committee previously noted that the New Zealand Migrant Settlement and Integration Strategy, adopted in 2014, encompasses employment, education and training as specific outcome areas with dedicated success indicators and requested the Government to provide information on the implementation of the strategy, as well as on the other measures and programmes aimed at promoting equality of opportunity and treatment for migrant men and women. The Committee notes the Government’s indication that the Ministry of Business, Innovation and Employment (MBIE), which is responsible for the cross-government implementation of the strategy, undertook several measures to raise awareness of migrant workers about their employment rights, including by disseminating guides into 14 languages; undertaking multi-language campaigns targeting both migrant employees and employers in ethnic media; and offering an hotline for migrant workers available in 40 languages. Furthermore, several initiatives are being implemented to enhance migrant workers’ access to employment, such as regional skills matching and career management programmes. The Committee notes, from the 2017 report on the strategy, that, in 2016, 80 per cent of employed principal applicants reported that their current job matched their skills and qualifications (compared to 84 per cent in 2014), while the proportion of employed secondary applicants is much lower in comparison but has improved over the last year (61 per cent in 2014). Furthermore, the employment rate of recent migrants has continued to show an increasing trend, being now higher than that of the New Zealand born population. However, the proportion of recent migrants who reported that they had experienced discrimination increased from 18 per cent in 2014 to 26 per cent in 2016 (compared to 17 per cent for the total New Zealand population). The Committee notes that, in Business New Zealand’s view, with an increasingly multi-cultural society, most employers are now very much aware that acting in a discriminatory way is more likely to harm their organizations than to enhance them. Referring to its previous comments regarding the exploitation of migrant workers where it noted the adoption of the Migrant Exploitation Prevention Strategy, the Committee welcomes the Government’s indication that several measures have been implemented to combat migrant exploitation, such as: (1) the conversion of post-study work visas into open work visa to reduce the exploitation of international students; (2) an amendment to immigration instructions providing that, from 1 April 2017, as a consequence of not having complied with employment standards, employers that receive a penalty or infringement notice for a breach would face a set stand-down period from 6 to 24 months during which they are unable to support a visa application. As at May 2018, 108 employees had been placed on the published stand-down list since it was introduced; and (3) an in depth-policy and operational review, undertaken by the MBIE, in collaboration with a consultation group representing migrants, enterprises, unions and international students, to better understand the nature of temporary migrant worker exploitation, including international students, and identify possible solutions.

In its supplementary information, the Government adds that major changes to the way employers recruit migrants for temporary work will be implemented mid-2021. The new framework will replace six existing types of temporary work visas and will have three steps – employer check, job check and migrant check. All employers will ultimately need to be accredited before they can recruit foreign workers. Sector agreements are intended to be introduced to facilitate access to lower-skilled migrants, in return for reducing reliance on their migrant workforce over time, though this is currently paused as a result of COVID-19 impacting on workforce planning. Industries with a high reliance on migrant workers have been identified for initial negotiations – aged residential care, red meat processing, dairy, forestry, road freight, transport, and tourism and hospitality. The Government adds that additional funding was allocated to address temporary migrant workers exploitation as it is estimated that there is an increased risk for migrant workers in the COVID-19 environment. This funding will support changes aimed at establishing (1) a dedicated system to report exploitation; (2) a new visa to support exploited migrant workers to safely leave their employment situation without jeopardizing their visa status; as well as (3) an information and education action plan to ensure that migrant workers and employers understand their rights and obligations, including how to report exploitation. The Government adds that combating migrant exploitation in the workplace is a priority area for the Labour Inspectorate. The Committee notes NZCTU’s indication that, alongside with representatives of Business New Zealand and the migrant community, it participated in the consultations for the Temporary Migrant Workers Exploitations Review where a consensus was reached in recognizing the importance of ending migrant exploitations and broadly supported the above-referred measures. The NZCTU adds that, while it supported the proposed Temporary Work Visa changes, further work will be needed to promote full employment in decent and meaningful work for all, including temporary migrant workers and to ensure employer accreditation is robust and allows full opportunities for consultation with relevant unions. The Committee welcomes the initiatives undertaken by the Government, in collaboration with social partners and migrant workers. With reference to the recognition of overseas qualifications, the Committee notes the Government’s statement that there have been no material developments on this issue. Welcoming the initiatives undertaken by the Government, the Committee asks the Government to pursue its efforts to promote equality of opportunity and treatment for migrant men and women, in particular by combating exploitation of migrant workers and international students. It asks the Government to continue to provide information on the impact of any relevant measures and programmes implemented to that end, in particular in the framework of the Migrant Settlement and Integration Strategy, the Migrant Exploitation Prevention Strategy and the Temporary Work Visa changes, as well as on any developments concerning the recognition of overseas qualifications. The Committee asks the Government to provide information on any complaints made by migrant workers to, and handled by, the competent authorities relating to discrimination based on the grounds set out in the Convention, and particularly race, colour or national extraction, the sanctions imposed and remedies provided.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 2. Promoting equality of opportunity and treatment for persons with disabilities. The Committee previously noted the adoption of the Disability Strategy 2016–26 and Disability Action Plan 2014–18, under which a Health and Disability Long-term Work Programme (2014–18) was created with the objective of increasing employment and economic opportunities for all persons with disabilities and persons with a health condition. The Committee notes the detailed information provided by the Government on the broad range of measures implemented by the Ministry of Social Development (MSD), in the framework of the Disability Action Plan 2014–18, to support training and employment of persons with disabilities, including: (1) the Mainstream Employment and Internship Programmes; (2) support funds directed at providing financial assistance for additional costs faced by persons with disabilities to access training, employment and self-employment; (3) employment providers contracted by the MSD to help persons with disabilities find work in the open labour market and provide in-work support for up to a year; and (4) community-based organizations that provide employment specifically for persons with disabilities. It notes that the new Disability Action Plan 2019–2022 was launched on 14 November 2019, and is composed of 25 work programmes on eight key issues, including education and employment. It notes more particularly that as a result of the action plan, a Disability Employment Action Plan (“Working Matters”) was adopted in July 2020 to ensure that persons with disabilities and persons with a health condition have an equal opportunity to access employment. It notes that the action plan highlights that 74 per cent of persons with disabilities not in paid jobs would like to work, and provides for specific initiatives, in particular to enhance their access to work experience while at school and to post-school education; ensure more and better employment services; build employer confidence in recruiting and retaining persons with disabilities; and enhancing microenterprises and self-employment as well as work opportunities created by new technologies. Recalling that under the Minimum Wage Act, persons with disabilities may be paid lower salaries, below the minimum wage, the Committee previously noted that the Government was exploring alternatives to the use of the Minimum Wage Exemption Permits (MWEPs) through a reference group encompassing representatives from across the disability sector. It notes that, as a result of the consultations held from February to April 2019, it was decided to replace MWEPs by a wage supplement approach, the cost of which would be bear by the Government, in order to support employers to take on workers with disabilities, rather than a system that penalizes persons with disabilities because they want to work. The NZCTU indicates that it participated to the consultation process and provided a submission to the Government seeking the replacement system to be free from discrimination against persons with disabilities. The Committee notes that an update on the design of a wage supplement approach was provided to the Cabinet on December 2019. According to the update, approximately 900 persons with disabilities are currently employed under MWEPs. The Committee welcomes the initiatives implemented by the Government to promote equality of treatment of persons with disabilities in employment and occupation. It however notes that, according to New Zealand Statistics (NZ Stats), the disability employment gap, which is the difference between the employment rate for persons with and without disabilities, remains high being estimate at 46.5 percentage points for the June 2019 quarter (23.4 per cent and 69.9 per cent respectively). Furthermore, the unemployment rate of persons with disabilities is still over twice that of persons without disabilities (8.6 per cent and 3.8 per cent respectively). In that regard, the Committee notes that Business New Zealand considers that the disability issue is of particular concern since, despite efforts to increase job opportunities for persons with disabilities, their unemployment rate is still far higher than the rates of persons without disabilities, which may reflect a lack of educational opportunities. Furthermore, while the effectiveness of such initiatives in the longer term cannot yet be known, they seem to look at disability through a medical model lens – seeing persons with disabilities as in need of outside help because of their disability rather than looking at their abilities and what they can do. Business New Zealand adds that the limitation of the 90-day trial to entreprises with less than 20 employees, following the Employment Relations Amendment Act 2018 (2018 No 53), may also deter some larger organizations to give to persons with disabilities the chance to demonstrate their employability. The Committee further notes, from the 2019 Government’s report to the UN Committee on the Rights of Persons with Disability (CRPD) that, in the year ending 15 June 2018, the Human Rights Commission received 370 complaints of alleged unlawful disability discrimination. Employment issues were the second most common complaint (CRPD/C/NZL/2-3, 8 March 2019, paragraph 24). The Committee asks the Government to continue to provide information on the measures implemented to improve the employment situation of men and women with disabilities, in particular in the framework of the new Disability Action Plan 2019-2022 and the Disability Employment Action Plan. It further asks the Government to provide information on any progress made on the wage supplement approach in order to replace the Minimum Wage Exemption Permits. Finally, the Committee asks the Government to continue to provide statistical information on the access of persons with disabilities to education, training, employment and occupation, disaggregated by sex, as well as on the number of cases of disability discrimination dealt with by the competent authorities.

Enforcement. The Committee notes the information provided by the Government and Business New Zealand on several judicial decisions addressing discrimination on various grounds, including gender, sexual orientation, age, disability and racial harassment. The Government indicates that, in 2018, as regards discrimination, 385 employment applications were received for mediation and 37 applications were received by the Employment Relations Authority (compared to 25 in 2017). Furthermore, according to Business New Zealand, for 2017–18, the Human Rights Commission dealt with 559 complaints of employment discrimination and 103 complaints of pre-employment discrimination, most of them, being related to disability in the public sector and to race in the private sector. Some 82 per cent of all unlawful discrimination complaints received were closed within three months and 97 per cent within 12 months. With regard to the use of 90-day probation period and its impact on workers, in particular migrant workers, the Government states that no research has been conducted for this express purpose. However, the Government adds that the Employment Relations Amendment Act 2018, amended section 67A, now limiting the 90-day probation period to new employees in enterprises with fewer than 20 employees. The Committee notes that the NZCTU commends the Government for such amendment while regretting that probation periods still apply to workplaces with less than 20 employees. It also notes that, in Business New Zealand’s view, such decision was unfortunate as it will limit the opportunity for persons who might otherwise not be considered employable to demonstrate their capabilities. The Committee asks the Government to continue to provide information on cases concerning discrimination in employment and occupation dealt with by the labour inspectors, the Employment Relations Authority, the Employment Court and any other competent authorities, with a particular focus on cases which are filed by employees on or at the end of a 90-day probation period. It also asks the Government to provide information on any further research undertaken regarding the use of probation periods and their impact on workers, in particular migrant workers, which may lead to discrimination on the grounds of race, colour or national extraction.

Comments adopted by the CEACR: New Zealand

Adopted by the CEACR in 2021

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C144 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C088 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C100 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C100 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C111 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Comments adopted by the CEACR: New Zealand

Display the list by:

Adopted by the CEACR in 2021

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C144 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C088 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C100 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C100 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C111 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)