Holidays Amendment Bill - Submission to the Transport and Industrial Relations Select Committee [2010] NZHRCSub 16 (13 September 2010)

Last Updated: 28 June 2015

Submission by the

_{Human Rights Commission}

_{HOLIDAYS AMENDMENT BILL}

_{To the Transport and Industrial}
Relations Select Committee

13 September 2010

Contact person:

Sue O’ Shea Principal Advisor EEO Phone [phone]

New Zealand Human Rights Commission

Holidays Amendment Bill

1. INTRODUCTION

1.1 The Human Rights Commission (the Commission) commented on the

Review of the Holidays Act to the Ministerial Advisory Group in August

2009. This submission reiterates points made then.

1.2 The Commission addresses the Human Rights implications of one issue:

• Enabling an employee to request that up to one week of his or her annual holiday’s entitlement is paid out. (cl 28)

1.3 The Commission concludes that: in regard to trading the fourth week of annual leave for cash at the employee’s request, the Commission strongly supports the retention of four weeks annual leave.

The Commission is not attempting to deny individual choice but raises the prospect that constrained choice is not real choice. Because of New Zealand’s low wage economy and long working hours ethic, many New Zealanders will have no real option but to trade away the fourth week of annual leave to the detriment of rest and recreation. This violates the spirit of decent work as outlined in domestic law and international conventions.

1.4 Before addressing the issue substantively the mandate of the

Commission is outlined.

2. HUMAN RIGHTS COMMISSION’S MANDATE

2.1 The Commission is an independent Crown Entity that derives its mandate from the Human Rights Act 1993 (HRA). The Commission’s major functions include advocating and promoting respect for, and an understanding of, human rights in New Zealand society and encouraging harmonious relationships between individuals and the diverse groups in New Zealand. The Commission also has responsibility for providing leadership on equal employment opportunities and facilitating the resolution of disputes about unlawful discrimination.

2.2 The issue addressed relates to the statutory functions of the Equal

Employment Opportunities (EEO) Commissioner.

New Zealand Action Plan for Human Rights

2.3 New Zealand has played an active role in developing an international framework for human rights. Civil and political, economic, social and cultural rights are set out in the Universal Declaration of Human Rights and have been subsequently codified in United Nations Covenants and

Conventions and International Labour Organisation core labour standards that have become part of international law. New Zealand has formally committed to respecting these rights through membership of the United Nations and the International Labour Organisation, and through ratification of these treaties by successive governments.

2.4 In the first comprehensive review of the status of human rights in New Zealand, Human Rights in New Zealand Today / Ngā Tika Tangata o te Motu (HRNZT), published in 2004 after nationwide consultation, the right to rest and leisure and reasonable limitation of working hours emerged as a dominant issue for both employers and employees. Findings from the consultation undertaken for HRNZT included “a work culture of long hours” as an identified area for improvement.

2.5 Subsequent to the HRNZT assessment, the Commission developed The New Zealand Action Plan for Human Rights / Mana ki te Tangata (the Action Plan).¹ The Action Plan proposed a number of priority actions in order to ensure that “all men and women have the opportunity to obtain decent and productive work in workplaces where the human rights of all are recognised and respected”² .

2.6 The Commission recently completed the National Conversation about Work, which is the largest work-based project undertaken by the Commission. The regional reports and summary report represent the views of more that 3000 New Zealanders working in a variety of industry sectors throughout the 16 regions of the country. It also gave the Commission comprehensive qualitative data which enables the Commission to be informed and authoritative about issues of fairness in the workplace.

2.7 During the regional visits the impact of long work hours and/or low pay on family life, health and relationships was evident.

3. THE RIGHT TO HOLIDAYS FROM WORK International Human Rights Standards

^{3.1 The right to decent work conditions is affirmed in major international}

human rights instruments which New Zealand has ratified.

3.2 The Universal Declaration of Human Rights (UDHR) includes the following articles in relation to work. The Commission has italicised phrases which highlight issues relevant to the review.

Article 23

Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment...

¹ Human Rights Commission (February, 2005), The New Zealand Action Plan for Human

_{Rights Mana ki te Tangata, Auckland: Human Rights Commission.}

² _{Action Plan, p35}

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

3.3 The International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified by New Zealand in 1978, includes the following article in relation to work:

Article 7

The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

a) Remuneration which provides all workers as a minimum, with:

...

ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

b) Safe and healthy working conditions;

d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay as well as remuneration for public holidays.

3.4 The International Labour Office (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. ³

3.5 New Zealand has some of the longest working hours relative to other economies in the OECD. The negative impact of long working hours on social well being has been recognised in research such as that reported by the Families Commission.⁴ Progressive realisation of International Covenants requires State parties to work towards the aspirations detailed in the covenant and not to resile from gains already made.

3.6 In accord with ILO standards and the criteria detailed above, the Commission strongly supports four weeks annual leave to ensure access to rest and recreation. Adequate holidays and limits to working time have been hard fought for by men, women, the trade union movement and business organisations in New Zealand.

3.7 Employees’ preferences for longer working hours are likely to be driven by low income particularly in a global recession. In this situation cashing up the fourth week of annual leave may mean employees are

³ International Labour Office, “Spotlight on Working Time”, World of Work No. 60, August,

_{2007, Geneva: International Labour Office.}

⁴ _{For example: Finding Time Parents long working hours and time impact on family life}

Families Commission 2009

trading away rest and recreation and holidays for financial survival. Another group of employees who ostensibly prefer long working hours are those for whom promotion depends on working long hours, because working hours are used as a performance indicator.⁵

3.8 While the proposed amendment offers individual choice, the Commission is concerned that because of New Zealand’s low wage economy and long working hours ethic, many New Zealanders will trade away the fourth week of annual leave to the detriment of rest and recreation. This violates the spirit of decent work as outlined in domestic law and international conventions.

4. CONCLUSION

4.1 In regard to trading the fourth week of annual leave for cash at the employees’ request, the Commission strongly supports the retention of four weeks annual leave. While the proposal offers individual choice, the Commission is concerned that because of New Zealand’s low wage economy and long working hours ethic, many New Zealanders will have no option other than trading away the fourth week of annual leave to the detriment of rest and recreation which violates the spirit of decent work as outlined in domestic law and international conventions.

⁵ Working Time Capability: Towards Realizing Individual Choice Sangheon Lee and Deidre

McCann in Decent Working Time New Trends and Issues ILO Geneva 2006

Appendix

A Human Rights Approach

• The HRNZT promoted a human rights approach to the development of policy and legislation as a way of mainstreaming human rights.

• A human rights approach puts protection and realisation of human rights at the centre of legislative and policy processes. In particular, it provides a conceptual framework designed to ensure that all those who are directly affected by a policy or law are better able to enjoy the rights they are entitled to under international law.

• The Commission endorses the use of a human rights approach that provides a conceptual base for assessing the human rights status of policy and legislation. It involves linking decision making at every level to the agreed human rights standards, balancing rights where necessary, in order to maximise respect for all rights and rights holders and to protect those people who are particularly vulnerable. A human rights approach also emphasises the importance of participation, empowerment and non-discrimination.

• The human rights approach can provide a principled framework to assist duty bearers (such as the State) to fulfil their obligations to uphold and balance competing rights. It recognises that rights are universal, inalienable, interlinked and interdependent. It also recognises that rights are not absolute and can be subject to reasonable limits.

• Where competing sets of rights intersect, one set does not simply override the other: they should be carefully balanced so as to maximise respect for all rights and rights-holders as far as possible. This assessment involves looking at who is affected, the nature of the rights involved, and the impact of the rights being limited or breached. This balancing exercise itself should take into account all the elements of the human rights approach.