Chapter 16: The right to work
Te tika ki te whai mahi

Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and protection against unemployment.
(Universal Declaration of Human Rights, Article 23 (1))

1. Introduction — Timatatanga

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. Because of work’s potential to satisfy social, intellectual and personal needs, it is an integral prerequisite for a life of human dignity. The right to work is of fundamental importance and underpins the realisation of other human rights such as the right to housing, the right to education, and the right to culture. Article 24 of the Universal Declaration of Human Rights ensures everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

2. International context — Ki ngā kaupapa o te ao

The International Covenant on Economic, Social and Cultural Rights 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:

1. the opportunity to work
2. free choice of employment
3. just and favourable conditions of work
4. non-discrimination
5. the right to form and join trade unions.

There are eight core International Labour Organisation (ILO) conventions that align with, and further strengthen, the Covenant. They cover four ‘core labour standards’:

• Conventions 29 and 105 ban forced labour and slavery
• Conventions 87 and 98 require countries to allow freedom of association and collective bargaining
• Conventions 100 and 111 ban workplace discrimination
• Conventions 138 and 182 set a minimum working age of 15 and ban the worst forms of child labour (e.g., bonded labour, hazardous labour, military conscription and sex trade).

The Declaration on Fundamental Principles and Rights at Work, adopted in 1998, commits States to promote these rights whether or not they have ratified the relevant conventions.

Other international instruments

Other principal international instruments recognise the importance of the right to work. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention on the Rights of the Child (UNCROC) set out the employment rights specific to each of these constituent groups.

CEDAW provides for women the rights to equal pay for work of equal value, to the same employment opportunities as men, and to protection from dismissal because of pregnancy. In its 2003 Concluding Comments on the fifth periodic report of New Zealand, the CEDAW Committee recommended that efforts be made to eliminate the occupational segregation that continues to contribute to the gender wage gap.

The UNCROC ensures that children have the right to a minimum working age, regulation of the hours of employment, and protection from workplace exploitation.

3. New Zealand context — Ki ngā kaupapa o Aotearoa

Elements of the right to work in New Zealand are expressed in a broad range of domestic statutes. The principal piece of legislation governing industrial relations is the Employment Relations Act 2000 (ERA), which aims to build productive employment relationships founded on the principle of ‘good faith’, address the inequality of bargaining power, support collective bargaining, ensure individual choice in employment and promote mediation while reducing the need for judicial intervention. The ERA also contains protections against unjustifiable dismissal or disadvantage, which includes the grounds for discrimination under the Human Rights Act 1993 (HRA) and special provisions dealing with sexual and racial harassment.

The New Zealand Bill of Rights Act 1990 (BoRA) provides a wide range of civil and political rights and freedoms by ensuring that all actions, decisions, and legislation of the Government and the broad public sector are consistent with the fundamental principles set out in the Act. Section 19 protects individuals from discrimination across the same grounds as the HRA and section 17 ensures the right to freedom of association.

The HRA sets out anti-discrimination provisions and establishes the role of the Equal Employment Opportunities (EEO) Commissioner.

The anti-discrimination measures in the HRA prohibit employment discrimination on 13 grounds, such as gender, race, disability, and age. Almost all aspects of employment are covered in section 22 of the HRA, making it unlawful for an employer or employment agency to refuse to employ a qualified applicant for work, offer an applicant or employee less favourable conditions of work, or terminate or cause to resign an employee because of one of the grounds of discrimination.

The EEO Commissioner is responsible for providing advice and leadership on EEO activities, monitoring and evaluating EEO progress, and leading discussions about EEO issues, including pay equity. The EEO Commissioner’s role extends the Human Rights Commission’s promotion of right to work issues.

The Equal Pay Act 1972 entitles women to equal pay with men if both are working in the same job. When this Act was passed, many wage rates were negotiated for various occupations and applied across the entire labour market. The effectiveness of the equal pay legislation has been limited in recent decades, partly due to the abolition of the award system. The Employment Relations Law Reform Bill proposes to repeal the Equal Pay Act and replace it with different, and arguably more functional, equal pay provisions. These will, however, be limited to like work rather than to work of equal value.

The Health and Safety in Employment Act 1992 serves as the primary legislation to ensure workplaces are safe and productive. The Act promotes the prevention of harm to employees and others at a place of work by defining hazards, imposing duties, setting requirements (including employee participation), and encouraging systematic health and safety management. A range of regulations and guidelines specific to certain industries also aim to support the concept of ‘favourable work conditions’.

Since 2002, New Zealand women in employment have enjoyed paid parental leave around the time of their giving birth to or adopting a child or children. The Parental Leave and Employment Protection (Paid Parental Leave) Act 2002 provides both job protection and continued income for workers during their period of maternity leave. Although workers can receive their full average pay or a portion of it for a period of up to 12 weeks, their jobs must remain open to them for up to a year (unless there is good reason not to do so). Due to strict eligibility requirements, New Zealand women who are self-employed, some homecare and seasonal workers, and some workers in long-term contracts with the same employer are entitled to neither paid parental leave nor job protection. The Government has announced that the scheme will be extended to include women who have been in a job for at least six months and will provide 14 weeks’ paid leave to meet international human rights standards. It has also made a commitment to do further work on the question of women who are self-employed.

In its Concluding Observations on the second periodic report of New Zealand, the Committee on Economic, Social and Cultural Rights applauded the introduction of the Employment Relations Act, the ratification of ILO Convention 98 concerning the right to organise and collective bargaining, and the introduction of paid parental leave. The Committee expressed concern at the relatively high unemployment rate among young people and the persistence of the wage gap between women and men.

Because of its diverse elements, the right to work is given shape by many other laws and regulations in New Zealand, such as social security and tax legislation, the Minimum Wage Act 1983, and the Education Act 1989.

New Zealand has ratified six of the eight ILO Conventions. It has not ratified two Conventions – 87 on Freedom of Association and Protection of the Right to Organise and 138 on Minimum Age of employment. The Department of Labour is undertaking a work programme assessing New Zealand’s compatibility with ILO Convention 138.

The Human Rights Commission

The Commission’s primary functions allow for a number of organisational activities aimed at promoting and protecting human rights, including the right to work. Issuing policy advice on human rights issues, providing education through community-based outreach programmes, and advocating politically and publicly on human rights matters are the Commission’s core activities. Crucial to protecting human rights at work is the Commission’s disputes resolution service, which individuals and groups can access to help resolve complaints of discrimination. A review of employment-related discrimination complaints and enquiries is contained in the Commission’s The Employment Report for Mana ki te Tangata, New Zealand Action Plan for Human Rights.

4. New Zealand today — Aotearoa i tenei rā

International standards and domestic legislation are given meaning by factors that are specific to the New Zealand employment environment. This section provides a description of some key features shaping the world of work in New Zealand.

The dynamics of the labour market

The dynamics of New Zealand’s employment environment are influenced by factors such as international trade, market forces, global labour demands, the impact of technology on information, production and services, legislative infrastructure, labour market organisation, changing demographics and workplace norms and values. The effects of small population size on sustainability and growth and regional labour market disparities are also important.

This report was written during buoyant economic times when the official unemployment rate was 4.4 percent, a 16-year low, and more New Zealanders (1,886,000) were in paid employment than at any other time in the country’s history. There is a natural tendency during good times to minimise the impact of structural disadvantage in the labour market and inequities in participation and outcomes. However, the current strength of the labour market provides an opportunity for informed debate about how to improve outcomes through work for individuals, families, workplaces, the communities in which they are located and society. The employment environment described here concentrates primarily on legislative infrastructure and labour market organisation, changing demographics and workplace norms and values. It will then be analysed against a human rights framework that looks at accountability, non-discrimination, participation and empowerment in the employment cycle.

Some of the significant cross-cutting issues shaping the employment environment in New Zealand are:

• the nature of work
• demographic trends
• business structure and employment relationships
• the organisation of labour
• workplace values and norms
• labour participation rates by diverse groups.

The nature of work

In the last decade there has been a shift in industrial production and consumer demand from goods to services, in line with the rest of the developed world. Service industries have created 90 percent of the job growth during the past 15 years to 2002, in contrast to the slow growth in agriculture and a sustained decline in manufacturing (Grimmond, 2002). Between 1996 and 2001, professionals were the main drivers of employment growth, rising by 43,000, 44 percent of the total net employment increase. Together, managerial, professional, technical and service and sales occupations accounted for 78 percent of the 327,000 new jobs added from 1992 to 2002 (Department of Labour, 2003b).

This profound shift has forced a re-evaluation of pathways to work in terms of skills, education and training. Significant emphasis is currently being placed by the Government on improving productivity and the technical skills required for the ‘knowledge economy’, which relies heavily on information technology and computerisation. This indicates that the nature of work within occupations is changing, with greater emphasis on technical and interpersonal skills (ibid).

Demographic trends

New Zealand will continue to have a small population, predicted as unlikely to reach five million in the next 50 years, but people will be more mobile, more ethnically diverse and older (Population and Sustainable Development, 2003). In 20 years time, European/Pakeha will make up only 67 percent (compared to the current 76.5 percent) of the workforce, with the number and proportion of Maori, Pacific peoples and Asian workers increasing and making up greater numbers of younger workers.

In 50 years, half of New Zealand’s population will be aged over 45 years and a quarter over 65 years. Ageing populations will change the nature of work, particularly given the predicted decline in fertility rates. Retaining mature employees and overcoming employer stereotypes about ‘difference’ and diversity will be significant challenges if New Zealand wishes to improve productivity and enhance growth. At an individual level, workers will need to think about career development spanning longer periods if they remain in paid employment past traditional retirement age. Older workers will need to have better access to on-the-job training to avoid skills obsolescence (McGregor & Gray, 2002). Increasing demands for workers places a premium on attracting more women, new migrants and disabled people, and on maximising the participation and potential of young as well as older people in paid employment.

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