Observation (CEACR) - adoptée 1996, publiée 85ème session CIT (1997)

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

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

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

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

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