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Playing by the Rules: Strengthening Enforcement of Employment Standards - Submission to the Ministry of Business, Innovation and Employment [2014] NZHRCSub 9 (18 July 2014)

Last Updated: 28 June 2015

Playng by the Rules: Strengthening Enforcement of

Employment Standards

Ministry of Business, Innovation & Employment

18 July 2014

_{1. Introduction}

1.1 The New Zealand Human Rights Commission (“Commission”) supports measures to better protect workers from exploitation and abuse. It therefore welcomes the opportunity to make a submission on the Ministry of Business, Innovation & Employment’s (“MBIE”) discussion paper Playing by the Rules: Strengthening Enforcement of Employment Standards (“Discussion Paper”).

1.2 The purpose of the Discussion paper is to “gather information from the full range of stakeholders in the employment standards system” to improve enforcement and compliance.¹

2. International Standards

2.1 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.

2.2 The International Covenant on Economic, Social and Cultural Rights (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:

• the opportunity to work;

• free choice of employment;

• just and favourable conditions of work;

• non-discrimination; and

• the right to form and join trade unions.

2.3 There is international consensus on “core labour standards”, which relate to a

_{range of fundamental principles and rights at work. These principles and rights}

¹ Ministry of Business, Innovation & Employment, Playing by the rules: Strengthening Enforcement of Employment Standards, Wellington 2014. Available at: http://www.dol.govt.nz/consultation/employment- standards/employment-standards-review.pdf

are embodied in eight fundamental International Labour Organisation (“ILO”) conventions, covering: 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. New Zealand has ratified six of the eight fundamental conventions.

2.4 Other international instruments also recognise the importance of the right to work.

The Convention on the Rights of Persons with Disabilities (“CRPD”), the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”), the Convention on the Rights of the Child (“CRC”), and the International Convention on the Elimination of All forms of Racial Discrimination (“CERD”) set out the employment rights specific to each of these constituent groups. New Zealand has ratified these conventions.

3. Protecting vulnerable workers

3.1 New Zealand’s legislative framework and mechanisms generally comply with international standards on the right to work. However, some continue to experience disadvantage and are subject to exploitation and abuse. The Discussion paper identifies a number of groups that are particular vulnerable to exploitation, including migrant workers and workers in the 15 -24 years age bracket.

Migrant Workers

3.2 Work is arguably the single most important element in the integration of immigrants to New Zealand. Furthermore, as has become increasingly visible through the Canterbury recovery and rebuild, migrant workers play a major role in the New Zealand economy. However, a long list of recent high profile cases has highlighted that exploitation of migrant workers is a significant issue in New Zealand.

3.3 The Commission’s 2012 inquiry into the conditions in the residential aged care sector Caring Counts heard that migrant workers, particularly those with temporary visas were extremely vulnerable to exploitation and that many had suffered discrimination in their work.²

3.4 While the Commission supports measures to better enforce employment standards it notes that this will not, in and of itself, necessarily improve the situation for all migrant workers. It is important that education and awareness raising programmes are undertaken to ensure that migrant workers are aware of their rights and how to enforce them. Likewise employers need to be made

_{aware of their obligations and provided with appropriate advice and guidance to}

² Available at: http://www.hrc.co.nz/eeo/caring-counts-report-of-the-inquiry-into-the-aged-care-workforce/

implement these into their day to day business operations.

3.5 Businesses must also be educated about the United Nations Guiding Principles on Business and Human Rights (“Ruggie Principles”). The Ruggie Principles received the unanimous endorsement of the Human Rights Council, in effect establishing them as authoritative international human-rights standards relating to business and human rights. The Ruggie Principles require the adoption of appropriate policies and regulations and impose a responsibility on business to:

• respect human rights;

• avoid infringing on the rights of others; and

• address any adverse impacts caused by their operations.

Children and young people

3.6 Allowing children and young people to work has long been part of New Zealand culture and is generally seen as beneficial. Participation in employment after school is a common activity for students with about 40 percent of secondary school children working in part time work.

3.7 In its 3^rd and 4^th report to the UN Committee on the Right of the Child New Zealand stated that it considered that its “existing policy and legislative framework provides effective age thresholds for entry into work in general, and for safe work.”³ The framework the government was referring to includes the:⁴

• Education Act 1989 which requires children to attend school until the age of 16, with limited exemptions. It also prohibits employers from employing children under 16 during school hours or when it would interfere with their attendance at school.

• Health and Safety in Employment Act 1992 which sets out duties to provide safe workplaces, manage workplace hazards, and ensure appropriate supervision protects the health and safety of people at work.

• Prostitution Reform Act 2003 decriminalises prostitution but prohibits the use of persons under 18 years of age in prostitution. In addition, the Act makes it an offence to arrange for, or to receive commercial sexual services, from a person under 18.

• Sale of Liquor Act 1989 bans people under 18 from selling liquor in licensed premises.

_{3.8 However despite these protections, children and young people continue to work}

³ http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/international- human-rights-instruments/international-human-rights-instruments-1/procedures-relating-to-the-core- human-rights-instruments-of-the-united-nations/documents-and-other-information-relating-to-the-core- human-rights-instruments-ratified-by-new-zealand/documents-relating-to-the-convention-on-the-rights- of-the-child-and-the-optional-protocols/third-and-fourth-report/NZ-CRC-3rd-4th-periodic-report-2008.pdf

⁴ Ibid.

unsupervised, are subject to exploitation and discrimination, and are at increased risk of injury and harm in the workplace. Children only have a 50 percent likelihood of having a written employment agreement and commonly work as independent contractors, leaving them without minimum standard employment protections.

3.9 While the Discussion Paper notes that children and young people are particularly vulnerable, it does not consider specific measures to ensure that employment standards are respected.

3.10 The Commission believes that the Discussion Paper presents a unique opportunity to consider further practical measures that could be taken to better protect the rights of children and young people in the workplace. These could include:

• increasing awareness amongst young people of their employment rights and whether or not their employers are complying. Despite efforts to address this through inter alia the Children’s Employment Work Programme, research shows that children continue to have very low levels of awareness about employment rights; ⁵

• expanding the brief of labour inspectors to cover child labour complaints;

• extending the age cover in the Human Rights Act 1993 (“HRA”) in relation to employment protection. The HRA in its current form provides little protection for those aged 16 years and under; and

• reviewing and amending the Health and Safety in Employment Regulations to ensure that they comply with New Zealand’s obligations under the CRC and provide adequate protections for children and young people in New Zealand in their application.

4. Inspection and compliance

4.1 A critical element of the system to prevent breaches of employment standards and exploitation is an appropriate and effective inspection and monitoring framework.

Labour Inspectors are an integral part of this framework. However, concerns have been raised at the current level of resourcing for labour inspectors.

4.2 The ILO recommends a ratio of 1 Inspector per 10,000 workers in industrial market economies. This figure is based on a definition or labour inspector which encompasses both employment standards and health and safety inspection. In New Zealand the labour inspection and occupational safety functions are split between Health and Safety Inspectors and Labour inspectors. The ILO recommended ration must be considered in light of this distinction.

_{4.3 Australia is a useful comparator as it has a similar framework to New Zealand in}

⁵ Schoolchildren in Paid Employment: A Summary of Research Findings, Department of Labour, Wellington, 2010.

maintaining separate inspectorates for labour standards and occupational health and safety. Australia employs 1 Fair Work Inspector per 19,390 workers. This is almost three times greater than New Zealand.

4.4 The Commission would welcome the incremental increase of the number of labour inspectors in New Zealand to bring it in line with comparable jurisdictions and international best practice.

4.5 Other actors also have an important role in enforcing labour standards. Trade Unions and other non government organisations (“NGOs”) have been instrumental in bringing cases of exploitation and abuse to light and advocating for affected workers. The value of the work of these organisations should not be underestimated and they should be integrated into any compliance framework.

4.6 The Commission would encourage the government to ensure that Trade Unions and NGOs continue to be adequately resourced in order to be effective partners in combating worker exploitation and abuse.

5. Conclusion

5.1 The Commission acknowledges the government’s ongoing commitment to address the rights of workers in New Zealand and would welcome the opportunity to engage further with MBIE as it progresses this important work.

Contact person:

Michael White, Senior Legal & Policy Analyst, Human Rights Commission

Direct dial: 04 471 6752

Email: michaelw@hrc.co.nz