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New Zealand Human Rights Commission Submissions |
Last Updated: 27 June 2015
Submission by the
Human Rights Commission
Employment Relations Amendment Bill
to the Transport and Industrial Relations
Committee
25 July 2013
The Human Rights Commission (the Commission) welcomes the opportunity to make a submission on the Employment Relations Amendment Bill (the Bill).
The purpose of the Human Rights Act 1993 is to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants and Conventions on Human Rights. The major functions of the Human Rights Act are a) to advocate and promote respect for, an understanding and appreciation of, human rights in New Zealand society; and b) to encourage the maintenance and development of harmonious relationships between individuals and among the diverse groups in New Zealand society.
Amendments proposed in this Bill, according to the explanatory note, implement “Government policy that is aimed at creating an employment relations framework that increases flexibility and choice, ensures a balance of fairness for employers and employees, and reduces compliance costs, particularly for genuine small to medium –sized enterprises. It also reduces unnecessary regulation. The Bill will help create an environment where employers can grow their business while ensuring the rights of employees are well protected.” Commission emphasis
This submission:
The
Commission would appreciate the opportunity to appear before the Transport and
Industrial Relations Committee to speak to this
submission
Work and Human Rights
The quality of life of New Zealanders is dependent on decent work. For many people, particularly Māori and Pacific youth and disabled people, the challenge is how to access it. For those caring for families, particularly women, the challenge is how to reconcile paid and unpaid work. For the increasing number of older people, the challenge is how to exit the workplace with dignity. For others, the challenges are the lesser value placed on unpaid work and protection from unemployment.
The right to work is a fundamental human right,
strongly established in international law. It recognises that work is not solely
a
source of income that provides for the basic necessities in life, but has the
potential to satisfy social, intellectual and personal
needs and therefore is
integral for a life of human dignity.
The work landscape is constantly
changing with new and more complex patterns of production and consumption. No
one in the workplace
is immune from technological change, the requirements of
“knowledge work” and globalisation. These have changed where
we
might work, how we might work, and the nature of our employment rights and
responsibilities. What remains constant is that the
workplace is a strategic
entry point to a society free from
discrimination.[1]
The right to work agenda is firmly rooted in the foundation of universal human rights. Former United Nations High Commissioner for Human Rights Mary Robinson noted that “sixty years ago, the drafters of the Universal Declaration of Human Rights (UDHR) knew that decent work was fundamental in a world where all human beings would be born equal in dignity and rights”.[2]
New Zealand’s legislative framework and mechanisms
generally comply with international standards on the right to work, with
a few reservations. New Zealand’s obligation to ensure
rights at work for people in this country arises from the fact that New Zealand
has voluntarily
obliged itself to do so by ratifying international human rights
conventions. While these are called ‘international obligations’
in
publications such as the Cabinet Manual, the obligation is first and foremost
owed to people in New Zealand.
Human Rights in relation to work are set out in a number of international
human rights conventions or treaties that New Zealand has
ratified. New Zealand
is required to regularly report to the United Nations against its obligations
under these international human
rights standards.
The International Bill of Human Rights and work rights
The Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are collectively known as the International Bill of Human Rights. What follows are the pertinent articles in those three documents which relate to the proposed amendments.
Article 23 of the UDHR states that employment must be “freely chosen”, under “just and favourable conditions” and that everyone has the right to “just and favourable remuneration,” “protection against unemployment” and “to form and to join trade unions”.
Article 24 of the UDHR states that everyone has the right to
rest and leisure, including reasonable limitation of working hours and
periodic
holidays with pay.
ICESCR contains the most comprehensive provisions on
the right to work. In Articles 6-8, the Covenant defines the core elements of
the right to work. These are:
Article 6:
1) The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
2) The steps to be taken by the State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.
Article 7:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
Article 8:
The ICCPR also includes articles on rights relating to work and repeats ICESCR 1(a) 2 and 3.
In addition Article 22 (1) of ICCPR
states:
The right to rest and leisure including reasonable
limitation of working hours and periodic holidays with pay is also repeated at
Article 24 of ICCPR.
New Zealand has a good record of ratifying human
rights treaties, after checking for any inconsistencies in New Zealand law.
Where
legislation is not yet fully compliant with an international instrument
reservations can be made to enable ratification.
New Zealand has reserved
the right “not to apply Article 8 (of ICESCR) to the extent that existing
legislative measures, enacted
to ensure effective trade union representation and
encourage orderly industrial relations may not be fully compatible with that
Article.”[3] The same
reservation with the same explanation is also applied to Article 22 of the
ICCPR. These reservations were made in 1978,
in a very different industrial
relations landscape.
Reservations are usually removed as domestic laws
comply. A recent example is the passing of the Human Rights Amendment Act in
2007
which made it possible for women to serve in combat roles in the armed
forces. This amendment enabled the government to withdraw
the last reservation
to the Convention on the Elimination of Discrimination Against Women.
In
2012 the Economic and Social Council considering the report on Economic, Social
and Cultural Rights recommended that “the
State party adopt such
legislative measures so as to enable it to withdraw its reservation to Article 8
of the Covenant.”[4]
Similarly, the Human Rights Committee of the United Nations in its
examination of New Zealand’s fifth periodic report on ICCPR,
in 2010,
concluded that the State party should consider withdrawing all reservations to
the Covenant.[5]
The International Labour Organisation and rights at work.
The ILO was founded in 1919 and became an agency of the United
Nations in 1946. Its main aims are to promote rights at work, encourage
decent
employment opportunities, enhance social protection and strengthen dialogue in
handling work-related issues.[6]
The ILO sets international labour standards and assists countries to implement “decent work” agendas at national level. New Zealand’s tripartite approach brings together government, workers (represented by unions) and employers in dealing with New Zealand’s own decent work programme and ILO matters.
There is international consensus on “core labour standards”, which relate to a range of fundamental principles and rights at work. All members of the ILO are obliged to respect, promote and realise the fundamental principles which are the subject of the eight core Conventions even if they have not ratified the Conventions in question. [7]
The (ILO) Declaration on Fundamental Principles and Rights at Work commits States to promote these rights.
The eight fundamental ILO conventions cover: elimination of all
forms of forced or compulsory labour; abolishment of child labour;
elimination
of discrimination in respect of employment and occupation; and ensuring the
freedom of association and the right to collective
bargaining. Two of the
fundamental conventions are relevant to this Bill, C98 on the Right to Organized
and Collective Bargaining
and C87 on Freedom of Association and Protection of
the Right to Organize. New Zealand has ratified C98 but not ratified C87
“but
considers that New Zealand law and practice is in compliance with the
principles that underlie
them.”[8]
The Government’s position in relation to C87 is that the Employment Relations Act 2000 provides for the right to organise, to bargain collectively and to strike (in certain circumstances). It also recognises the role of trade unions.
The Commission in its report Human Rights in New
Zealand 2010 recommended that a plan of action to ratify ILO Conventions 87 (and
138[9]) and the lifting of any other
Convention reservations related to employment is needed. The Commission
believes that the government
should support ILO standard setting for decent work
in New Zealand and internationally.
Right to request flexible work
The Human Rights Commission welcomes the proposed expansion of the right to request flexible work arrangements. In the Commission’s report of the National Conversation About Work,[10] a two year project in which the Commission heard from thousands of New Zealanders about what would make a difference to achieve equality and fairness at work, both employers and employees expressed a preference for flexible work approaches.
It was noted that while flexible work arrangements are particularly helpful for parents and those who have dependent care responsibilities, other groups seek flexible approaches too. Flexible working hours are important to the participation of disabled people, as shown by the 2006 Disability Survey, where the most requested form of workplace support was modified hours.
Some participants in the National Conversation cautioned that limited availability of flexible work patterns (for example, to those with care responsibilities only) can create an unfair burden on colleagues, unless managed to ensure that did not happen.
The report also observed that currently the uptake of flexible work arrangements has a significant gender imbalance and emphasises the cultural norm that caring responsibility for children is primarily that of women. Policies and practices that widen the scope of the right to request are welcome and could be used to promote equality.
Flexible work practices were often seen by participants in the National Conversation as a barrier to career advancement (the so-called Mummy-track) and this discouraged men for taking up flexible work options. Availability of the right to request for all workers will hopefully reduce the gendered nature of uptake and promote flexible work practices for all.
The Commission also supports the removal of the six month period of employment before an employee has the right to request; the removal of the limits on the number of requests an employee may make; and the reduction of the time an employer has to consider the request.
The review of flexible working arrangements by the Department of Labour in 2011 noted, “There are some groups of workers who may have little or no access to flexible work due to both perceived and real barriers, including limited bargaining power, the culture of the workplace, and operational constraints within some workplaces. These workers are more likely to be low-income employees, employees with no qualifications, and Pacific workers.”[11]
The Commission recommends that strategies to provide better access to flexible working arrangements for these vulnerable workers be developed. One strategy might be awareness-raising of the right to request and another is to promote the benefits of flexible working with both employees and employers. The relative ease by which employers can refuse a request may also be an issue that is a barrier to uptake. Another strategy is to take the focus off an individual employee requesting flexible working arrangements onto a whole of workplace approach in which an environment is created that recognises and accommodates work-life balance.
The State Services Commission wrote “Work-life balance is about creating a productive work culture where the potential for tensions between work and other parts of people’s lives is minimised. This means having appropriate employment provisions in place, and organisational systems and supportive management underpinning them.”[12] The principles developed for the State Services included the need to “be fair and equitable, recognising that different cultures, abilities/disabilities, religions, beliefs, whānau and family practices may mean different solutions for different people, and that “one size does not fit all.”[13] The SSC further noted, “work-life balance is part of an organisational culture, and is driven by key parties with individual roles and responsibilities. An individual’s work-life balance is influenced by the culture and by all the parties involved.”[14]
Positive Duty to be a good employer
It is the Commission’s
view that mechanisms to address systemic discrimination and disadvantage should
be strengthened. State
sector legislation requiring employers to be “good
employers”, including having an equal employment opportunities programme,
should also apply in the private sector.
Mintrom and True[15] urge EEO advocates to “work towards the introduction of legislation that places stronger positive duties on all employers, starting with large organisations, to develop and implement EEO plans, and regularly report on the outcomes” The Canadian Human Rights Commission note in a review of Canada’s Employment Equity Act that employers are only likely to adopt required EEO policies when they know their performance is being monitored.
Several statutes refer to the promotion of equal employment opportunities (EEO) through the good employer concept. The State Sector Act 1988 (s56(2)), Crown Entities Act 2004 (s118) and Local Government Act 2002 (s36(7)) address responsibilities and accountabilities for equality throughout the wider state sector.
Under these statutes, a good employer is an employer who operates policies containing provisions necessary for the fair and proper treatment of employees in all aspects of their employment, including:
* good and safe working conditions
* an equal employment opportunities programme
* the impartial selection of suitably qualified personnel for appointment
* recognition of the aims and aspirations of Māori; and the employment requirements of Māori; and their need for involvement of Māori as employees of the entity
* opportunities for the enhancement of the abilities of individual employees
* recognition of the aims and aspirations and employment requirements, and the cultural differences, of ethnic or minority groups
* recognition of the employment requirements of women
* recognition of the employment requirements of persons with disabilities.
The positive duty to be a good employer is limited to the state sector, and there is no legislative equivalent in the private sector. Positive duties take a proactive and preventative approach to discrimination and legislating positive duties tends to focus on a requirement for employers to develop EEO programmes. Internationally, legislation varies from a very light-handed requirement that an EEO programme is to be put in place, (e.g. New Zealand) to comprehensive and prescriptive positive duties which outline very specific requirements for how EEO programmes are developed, what must be included, implementation commitments and monitoring processes, including reporting. [16]
While there
is consensus that discrimination is inefficient for business and wrong, there is
no unanimity about how to eliminate it.
Nor is there a consensus about what EEO
should mean in legislation and policy, and what it actually means in practice.
Contrary views
in New Zealand about the legitimacy of special measures is
indicative of the divergent views across business, trade unions, public
agencies, and civil society groups representing disadvantaged groups.
Many private sector New Zealand employers do actively use EEO
policies and practices in workplaces without the legislative compulsion to be
good employers that operates in the
public sector. Some are members of the EEO
Trust and brand themselves as being supportive of EEO initiatives, or belong to
groups
such as the Employers’ Disability Network or are signatories to the
Women’s Empowerment Principles. Overseas companies
also implement EEO
initiatives in New Zealand such as wellness programmes, older worker schemes and
diversity policies that exist
globally as a consequence of legislation, policy
and practice in other jurisdictions or in response to labour market supply and
demand
issues.
There is also a range of EEO-related legislation
contained in government policy such as paid parental leave, the right to request
flexible work, and maternity protections, and broad policy initiatives around
progressively improving the minimum wage and providing
incentives for working
families. These are aimed at broader equality and poverty reduction goals in New
Zealand.
The critics of a voluntary EEO approach say, however, that left
to individual businesses EEO will always be variable, ad hoc, address
only some
disadvantaged groups and be hostage to the human resource fashion of the moment.
These EEO advocates support greater legal
and institutional commitment to
equality and non discrimination through over-arching positive duties.
It is
difficult to gain a reliable and comprehensive picture of equal employment
opportunities in New Zealand’s private sector
because of the absence of
reporting requirements and data collection that usually accompany monitoring
regimes established by legislation.
Inadequate data has been noted by the CEDAW
committee in 2012 and by others nationally and internationally. However,
concerns expressed
by business groups regarding reporting and other compliance
costs associated with EEO-related policies should be taken seriously.
This has
led to the suggestion that efforts to compel private companies to establish EEO
initiatives should ensure that the business
benefits outweigh any compliance
costs, according to Mintrom and True.
Small and medium sized enterprises
remain the most challenging sector to progress equal employment opportunities in
New Zealand. The
linkage between non discrimination and equality, and
productivity and competitive advantage, is still not universally recognised
in
small business. And while the concept of a “fair go” is integral to
New Zealand’s sense of identity there are
thousands of small businesses
who rely simply on basic anti-discrimination and employment law frameworks and
have no written EEO
policies. The absence of a written EEO policy does not
necessarily mean that equality is not practised, but the development and
implementation
of formal EEO policies are more likely to enhance equality in New
Zealand workplaces.
New Zealand needs to consider new EEO legislation
emphasising positive and not negative duties if it wishes to remain a world
leader
in progressing equality. New legislation needs to be comprehensive and
remove the compulsory/voluntary divide between the public
and private sectors.
It must acknowledge the small size of much of New Zealand’s business and
take account of the business
costs of compliance. New, over-arching legislation
could incorporate the inter-sectional nature of much discrimination and address
issues relating to the informal economy. The organisation of work has changed
significantly in the last ten years and will dramatically
change again in the
next decade. If the workplace is a strategic entry point from which to advance
equality in society, then tackling
the challenge of new, modern and relevant
positive duty obligations is an urgent priority.
The Commission
therefore recommends the addition of a positive duty to be a good employer, as
contained in State sector legislation,
to the private sector as well.
Collective bargaining and freedom of association: the importance of
social dialogue
Social dialogue is defined by the ILO as
negotiation, consultation or information exchange between government, employers
and workers
on issues of common interest. “Social dialogue
is a measure of a country’s state of industrial relations, i.e.
worker’s right to freedom of association
and collective bargaining. In
other words, it shows the extent to which workers can collectively represent
their interest and voice
concerns in work-related matters and participate in
defining their conditions of
work.”[17]
“Freedom of association (as reflected in trade union membership)
and collective bargaining form the basis of social justice
and democracy. They
are at the core of the fundamental principles and rights at work as set out in
the ILO Conventions on the Freedom
of Association and Protection of the Rights
to Organize, 1948 (No. 87) and on the Right to Organize and Collective
Bargaining, 1949
(no. 98). Freedom of association and collective bargaining are
equally important for both workers and employers, in enabling them
to negotiate
mutually beneficial collective agreements. Constructive negotiations promote
fairer economic development through a collaborative
effort to increase
productivity and enhance conditions at
work.”[18]
Decent Work
Indicators, developed by the ILO, regarding social dialogue suggest New Zealand
is already falling well short of international
benchmarks, a situation that will
be exacerbated by the passage of the Bill. For example New Zealand is ranked
19th out of 21 for collective bargaining coverage across the OECD and
12th out of 21 on rate of unionisation. Both these figures
demonstrate a dramatic drop over recent decades. Trade union density has
decreased
from 64.8% in 1980-1984 to 21.0% in 2005-2008 and the percentage of
workers covered by collective bargaining has dropped from 70%
in 1970-1974 (at
the time of compulsory union provisions) to 17.3% in
2005-2010.[19] More recent data
indicates a further drop in collective agreement coverage to 13% of the total
labour force: with a preponderance
of coverage in the public sector at 58% and
only 9% of the private sector. [20]
Work stoppages are the lowest since stoppages have been
recorded.[21]
In recent
years a number of workplace reforms have advanced workers’ rights,
including legislation dealing with flexible work,
paid parental leave, holidays,
rest breaks, and breastfeeding. However, other changes to employment legislation
and the proposed
changes in this Bill are of concern to the Commission in its
promotion of the right to work, a “decent work” agenda and
equal
employment opportunities.
The Commission’s view is that this Bill
if passed without amendment takes a step backward from compliance with the
international
human rights instruments in relation to freedom of association and
collective bargaining.
Compliance with ILO principles require the
active promotion and encouragement of collective bargaining and have stated
that[22]:
A number of the proposed amendments not only
fail to promote collective bargaining but undermine it. Both the current
Minister of
Labour and the previous Minister have referred to inconsistency with
ILO Conventions 98 and 87, but concluded that they were not
significant.
In a Cabinet paper[23]
prepared this year, Minister Bridges advised:
9. “A grace
period” (after bargaining is declared to be over) “where parties are
prohibited from initiating bargaining
is likely to be seen by unions as
inconsistent with the International Labour Organisation’s (ILO) Convention
98 (Right to Organise
and Collective Bargaining) because it undermines the
intent to encourage collective bargaining. Further, because it would also
prohibit the right to strike during the period, it is likely to be also seen as
inconsistent with ILO Convention 87 (Freedom of association and
protection of the right to organise).
10. The former Minister of Labour
has previously advised Cabinet of a similar risk in regards to the amendment
to allow employers to opt out of multi-employer collective bargaining.”
(Commission’s emphasis)
The Cabinet
paper[24] prepared last year states
at 63 that:
“The proposed change to allow employers to opt out of
multi-employer bargaining will most likely be seen by unions as being
inconsistent with the objectives of the Act” (footnoted as including the
promotion of collective bargaining, the protection
of individual choice and
observance of the principles of ILO Conventions 87 (Freedom of Association) and
98 (Right to Organise and
Collective Bargaining)... “ Unions may argue the
proposal undermines the Convention’s intent to encourage collective
bargaining generally. New Zealand has ratified Convention 98 and is
therefore legally bound by this international treaty-level instrument and the
ILO
supervisory process that investigates representations or complaints made
regarding non-compliance.” (Commission’s emphasis)
The 2012
Cabinet paper advises Cabinet that unions may initiate action in the ILO and
this process could be fairly public, lengthy
and resource intensive. The point
being made is not whether the proposed changes are compliant with international
obligations, as
required in the Cabinet manual, but rather the risks associated
with unions raising non-compliance at an international level. The
Regulatory
Impact Statement prepared by the then Department of Labour takes the same
approach. The duty imposed on the Minister
(and presumably if they are in
agreement the view of officials advising the Minister) is to advise the Cabinet
of the Minister’s
view of New Zealand’s compliance with its
international obligations. The paper, in order to comply with the Cabinet Manual
should state whether the view of the Minister is that the proposals comply or do
not comply with international obligations. The
Minister may point out that
others might disagree with his assessment but he must make the assessment. That
assessment has not been
made in the Cabinet Paper.
It is of concern to
the Commission that the Cabinet paper also includes the statement at 69, of the
2012 paper, under the heading
Human Rights that the “Human Rights team at
the Ministry of Justice considers that the proposals appear to be consistent
with
the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990
and the Human Rights Act 1993.” The 2013 paper
baldly states that the
proposals have no human rights implications. The Commission continues to observe
repeated occasions where
a review of the human rights implications of those two
acts is substituted for the “international obligations”, including
international human rights obligations analysis required by the Cabinet Manual.
The analysis at 69 fails to consider New Zealand’s
obligations to be
consistent with international human rights instruments (“international
obligations” as defined in the
New Zealand Cabinet Manual and related
drafting advice.).
New employees would no longer come within the
provisions of the collective agreement in their first 30 days. This proposal has
the
express intent of offering new employees pay and conditions less than that
contained in the collective, further undermining collective
bargaining and
freedom of association.
The Regulatory Impact Statement is explicit in
acknowledging this, “The 30 day rule was designed to provide an initial
period
of protection for new employees (as employees are considered to be more
vulnerable at the start of employment) and to prevent employers
undermining
existing collective agreements by offering lesser conditions of employment
for the same type of work covered by those agreements. It was also designed to
encourage
employees if they wished to retain the conditions of the collective
employment agreement (CEA), to join the union at the end of the
30 day
period.[25]
The Ministry
of Social Development commented that “repealing the 30 day rule for new
employees will disadvantage young people,
those exiting benefits for employment,
and other vulnerable
workers”.[26]
What
problem are these amendments seeking to solve?
New Zealand regularly
emerges as having: one of the most (in fifth place) flexible labour
markets[27]; the least regulated
labour market[28]; one of the most
deregulated labour markets in the developed world (at fourth for employment
flexibility rankings)[29]; and one
of the countries with the most business-friendly regulatory regimes in the world
(at third for ease of doing
business).[30]
It is
difficult to understand the justification for deregulating the New Zealand
labour market even further, while at the same time
breaching international
obligations to protect employee’s rights.
Disadvantaged groups,
often low paid, have low bargaining strength in the labour market and are most
likely to be disadvantaged by
changes that strengthen employers’ rights
and power. Greater protection is needed for these workers, not less.
Transfer of Undertakings –amendment of Part 6A
The Regulatory Impact Statement on proposed changes to Part 6A outlines the original purpose of its introduction. “Part 6A was introduced to ensure continuity of employment for “vulnerable employees – employees in industries where restructuring is especially prevalent, tends to undermine the employee’s terms and conditions of employment, and where those employees have little bargaining power.”[31] “Part 6A provides employment protection for employees when an employer’s business undergoes restructuring and the employee(s) work is assigned to a new employer.” ‘Restructuring’ situations include contracting out, contracting in, sales and successive contracting.
The Ministry of Business, Innovation and Employment states “While operating part 6A imposes additional obligations on employers, neither the initial 2009/2010 review undertaken by the former Department of Labour, nor subsequent further work, including the external cost-benefit analysis, has found clear evidence supporting the repeal of Subpart 1 (and therefore of Subpart 2). Although Subparts 1 and 2 impose costs on, and reduce flexibility for, some employers, on balance the Ministry considers that the benefits of having special continuity of employment protections for the specified workers are likely to outweigh these costs”.[32]
The Ministry estimates that approximately 26,000-29,000 employees could be
affected by these proposals, comprising of workers from
the cleaning sector,
caretakers, hospital orderlies and laundry
workers.[33] These occupational
groups are predominantly women, many of whom are Māori, Pacific peoples and
other ethnic minorities.
Some of the proposed changes appear to be benign,
and are designed to protect new employers from being “gamed” by
outgoing
employers, by turning the contract into a poisoned chalice as the 2013
Cabinet paper describes it. The exemption of small to medium
enterprises to the
provisions of s6A however raise concerns about how vulnerable workers will be
protected when a cleaning, laundry,
or food preparation contract, for example,
changes hands.
Access to personal information
In its un-amended form the Employment Relations Act requires a positive obligation on the part of the employer to provide information to an employee facing dismissal or redundancy. This information can be withheld for good reasons.
The Commission is not opposed to the protection of confidential information related to another person. However it is a long established tenet of common law that an individual has the right to know what he or she has been accused of, and the name of his or her accuser. Therefore the release of information should be on the side of disclosure.
The Commission is of the opinion that the proposal to allow employers to withhold evaluative or opinion material compiled for the purpose of making a decision that may affect an employee’s continued employment and the identity of the person who supplied the evaluative material is an unacceptable infringement of a person’s right to a fair hearing.
The Privacy Act permits the non-disclosure of information or of information identifying the person, being evaluative material, if the disclosure would breach an express or implied promise of confidentiality to the person supplying the information.[34]
However it cannot have been envisaged that in this context (i.e. a person who may be about to lose their job) a person would not be able to see the information being relied on to make that decision.
The Regulatory Impact Statement conflates withholding confidential information about another person and evaluative material about the employee requesting information. These two elements are distinct and should be regarded separately. In discussing the amendment to the ERA that would permit employers to not provide confidential information officials advised that detriments included “removes existing rights to access information” and “potential for unequal treatment of employees” and risks included “will reduce natural justice if an employee relies on incorrect information for making a decision, and an employee does not have the opportunity to correct it.”
This is precisely why employees must have the right to see evaluative material about them, especially in the context of situations where an employer is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of that employment (s4 (1A)(c)).
The right to breaks in the working day
The Commission strongly
supported the 2008 legislative amendment which requires employers to provide
paid rest breaks and unpaid meal
breaks. The Commission considered that this
amendment provides adequate flexibility, while also providing important added
certainty
and protection for vulnerable workers. The Commission opposed the
Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill
2010 on the
following grounds
Internationally, there are standards set for rest breaks. The ILO framework for promoting decent working time has been developed from ILO standards, complemented by research. Decent working time arrangements are required to fulfil five interconnected criteria: they should preserve health and safety; be family friendly; promote gender equality; enhance productivity; and facilitate worker choice and influence over working hours.[35]
The ILO reports that just over two thirds of the over 100 countries covered by their report on working time laws, mandate by legislation, rest breaks during the working day. “The most wide spread approach is to require a rest break of at least 30 minutes in length, although a substantial number of countries require a break of 45 minutes or more.” “Among the industrialised economies, all European countries entitle their workers to a break during the working day.”[36]
The Commission noted that at the time of the 2008 Amendment, Business New Zealand stated that “employers were naturally in favour of adequate meal and rest breaks”. While a great many employers readily provide adequate meal and rest breaks, and provisions are commonplace in employment agreements, practice is not consistent in all sectors or by all employers.
While the rights of both parties in the employment relationship must be
taken into account, as the Commission noted in its 2008 submission,
it is the
responsibility of the state to favour the vulnerable when competing rights must
be balanced.
Young people, people working in the food service sector,
migrant workers and inexperienced workers are particularly vulnerable. This
vulnerability is particularly acute in the current environment of high
unemployment in which employment is less secure. This Bill
allows employers to
provide ‘compensatory measures’ instead of rest/meal breaks. The
provision fails to adequately address
health and safety considerations which are
a significant rationale underlying rest and meal breaks.
The Commission believes that legislation is still vitally important to guarantee the fundamental right for all workers to reasonable limitation of working hours. The current legislation allows variation of the timing of breaks (but not the minimum duration of breaks) by mutual agreement. Breaks outside the time specified in the Act are by agreement between the employee and employer. This provides considerable flexibility to ensure minimum disruption to business operations.
On balance, within the existing legislation, sufficient flexibility is currently available to employers while assuring employees the right to rest breaks during the working day. Therefore the Commission continues to oppose proposed changes to Part 6D.
Recommendations
In summary, the Commission recommends that:
[1] ILO (2007), Equality at
work: tackling the challenges, Global report under the follow-up to the ILO
Declaration on Fundamental Principles and
Rights at Work (Geneva,
International Labour Organisation) Par
1.
[2] “Working out
of crisis: aligning finance with decent work and a fair
globilisation,” background paper for workshop organised by NGLS,ILO
and Realising Rights on 1 December 2008 as a side event at the UN Conference
on
Financing for Development, Doha.
[3] Ministry of Foreign Affairs
and Trade (2008) New Zealand Handbook on International Human Rights
p122
[4] Economic and Social
Council 2012 Concluding observations of the Committee on Economic, Social and
Cultural Rights E/C.12/NZL/CO/3
[5] Concluding observations of the
Human Rights Committee 2010 CCPR/C/NZL/CO/5
[6] Ministry of Foreign Affairs
and Trade (2008) New Zealand Handbook on International Human Rights
[7] The International Labour
Organizations Fundamental Conventions (2003) ILO Declaration on Fundamental
Principles and Rights at Work and its Follow Up, at 2
[8] P37 Ministry of Foreign
Affairs and Trade (2008) New Zealand Handbook on International Human
Rights
[9] C138 is the Minimum Age
Convention
[10] Human Rights
Commission (2010), What next, National Conversation about Work
(Auckland: HRC).
[11] P2
Department of Labour (2011) Review of Part 6AA: Flexible Working
Arrangements
[12] Piv State
Services Commission (2005) Work-Life Balance: a resource for the State
Services
[13] Ibid HRC
emphasis
[14] Ibid
p21
[15] Mintrom and True (2004)
Framework for the Future: Equal Employment Opportunities in New Zealand
p122
[16] Human Rights
Commission (2008) Equal Employment Opportunities (EEO) The way forward?
[17] ILO (2008) Decent Work
Indicators for Asia and the Pacific p86
[18] Ibid at
p86
[19] International Trade
Union Conference (2013) Frontlines Report April 2013 citing OECD data.
[20] Regulatory Impact Statement
(2012) Improving how collective bargaining works at
4
[21] Ibid at 6
[22] ILO (1993) response of the
Committee on Freedom of Association to the complaint taken by the CTU regarding
the Employment contract
Act
[23]
Office of the Minister of Labour (2013) Further decisions on the Employment
Relations Amendment Bill to the Cabinet Economic Growth and Infrastructure
Committee
[24] Employment
Relations Amendment Bill 2012: Paper One-Collective Bargaining and Flexible
Working Arrangements dated 3/5/12 to the Cabinet Economic Growth and
Infrastructure Committee
[25]
Department of Labour (2012) Regulatory Impact Statement Improving how collective
bargaining operates, at 10
[26]
Ibid at 84
[27] Australian Human
Resources Institute and the Society for Human Resource Management 2012 Global
Index of Workplace Performance and Flexibility
[28] International Monetary
Fund (2010) Cross-Cutting Themes in Employment Experiences during the
Crisis
[29] OECD (2008)
[30] The World bank and
International Finance Corporation (2013) Doing Business 2013
[31] Regulatory Impact Statement
(2103) Amendments to Part 6A of the Employment Relations Act 2000 at
p7
[32] Ibid at
p2
[33] Ibid at
p8
[34] S29 Privacy Act 1993
[35] International Labour
Office, “Spotlight on Working Time”, World of Work No.
60, August, 2007, Geneva: International Labour
Office.
[36] McCann, Deidre,
(2005), Working time laws: A global perspective findings from the ILO’s
Conditions of Work and Employment Database, Geneva: International Labour
Organisation. P34.
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