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:
- the opportunity to work
- free choice of employment
- just and favourable conditions of work
- 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
- Conventions 29 and 105 ban forced labour and slavery
- Conventions 87 and 98 require countries to allow freedom of association and collective
- 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
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
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
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
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 CommissionTop
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 marketTop
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
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 workTop
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
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
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.