Employment Relations Amendment Bill - Submission to the Transport and Industrial Relations Committee [2013] NZHRCSub 4 (25 July 2013)

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

Introduction

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:

• Outlines international human rights obligations in relation to the right to work
• Endorses the expansion of the criteria for accessing the right to request flexible working arrangements as well as suggesting other improvements to the right to request flexible working arrangements.
• Proposes the addition of positive duty to be a good employer as set out in the State Sector Act, the Crown Entities Act and the Local Government Act be extended into the private sector.
• Argues that the proposed changes to collective bargaining and union rights are inconsistent with New Zealand’s obligations under international human rights standards.
• Comments on the effects on vulnerable workers (mainly women and often Māori or ethnic minorities) in precarious work who are currently protected by transfer of undertakings provisions, on the proposed changes and recommends that small to medium enterprises are not excluded from the requirements of s6A
• Concludes that proposed changes to rest and meal breaks are not consistent with international human rights standards and recommendations, and have negative implications for healthy and safe working conditions particularly for vulnerable workers, including youth.
• Argues that the proposed change to the rights of employees to access evaluative or opinion material about themselves is contrary to natural justice.

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:

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.

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:

1. Remuneration which provides all workers, as a minimum, with:
   1. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, equal pay for equal work;
   2. A decent living for themselves and their families in accordance with the provisions of the present Covenant;
2. Safe and healthy working conditions;

100. Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

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

Article 8:

1. The States Parties to the present Covenant undertake to ensure:

1. The right of everyone to form trade unions and join the trade union of his choice; subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
2. The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;

100. The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

4. The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the lawful restrictions on the exercise of these rights by members of the armed forces or the police or of the administration of the State.
3. Nothing in this article shall authorize States Parties to the ILO Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

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:

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

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 19^th out of 21 for collective bargaining coverage across the OECD and 12^th 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]:

• Collective bargaining mechanisms must be clear and easy to operate so that they do not restrict the right of representative unions to bargain
• The provisions on the relationship between collective and individual employment contracts must reflect the overall principle that collective bargaining should be promoted
• The provisions of good faith must reflect the overall principle that collective bargaining should be promoted.

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

• It is a retrogressive step that erodes recently introduced protections for rights to decent work, rest and leisure, health and safety.
• It removes minimum standards that provide important protections for vulnerable workers.
• The law currently provides a degree of flexibility and blanket removal of protections is a precipitate and disproportionate response.

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:

• The proposed changes to the right to request flexible work arrangements proceed.
• That flexible work arrangements be further enhanced by considering strategies to provide better access for vulnerable workers.
• That positive duty to be a good employer as required in the public sector and set out in the State Sector Act, the Crown Entity Act and the Local Government Act be extended to the private sector.
• That proposed changes to collective bargaining and union rights are rejected as they are inconsistent with New Zealand's obligations under international Human Rights Treaties
• That proposed changes to the rights of employees to access evaluative or opinion material about themselves are rejected as being contrary to natural justice.
• That proposed changes to rest and meal breaks are rejected as they are inconsistent with international obligations and may compromise health and safety standards.

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^[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.