Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill - Submission to the Transport and Industrial Relations Committee [2017] NZHRCSub 4 (25 May 2017)

Last Updated: 6 June 2017

Hearing before the Transport and Industrial Committee, 25 May 2017

Speaking Notes of Human Rights Commission on Employment Relations (Allowing Higher Earners to

Contract out of Personal Grievance Provisions) Amendment Bill¹

The Commission welcomes the opportunity to speak to the Transport and Industrial Committee about its concerns regarding the Employment Relations (Allowing Higher Earners to Contract out of Personal Grievance Provisions) Amendment Bill.

The Commission is particularly concerned that the contracting out provisions of clause 5 of the Bill apply to the entirety of the personal grievance regime under Part 9 of the Employment Relations Act (ERA), including those provisions which regard breaches of human rights, such as discrimination, sexual harassment and racial harassment. The Bill also appears to be inconsistent with both New Zealand’s international obligations under ILO and UN treaties and current domestic policy and legislative settings.

Inconsistent with international obligations and principles

The Bill appears to be inconsistent with New Zealand’s commitments under international treaties, including:

• ILO Discrimination (Employment and Occupation) Convention 111 – In particular, the obligations to declare and pursue a national policy in respect of employment and occupation that seeks to eliminate discrimination²; and enact legislation for that purpose³

• The International Covenant on Civil and Political Rights (ICCPR) – in particular, the right to freedom from discrimination and the right to access a remedy⁴

• The International Covenant on Economic, Social and Cultural Rights (ICESCR) – in particular, the right to just and favourable conditions of work, including safe and healthy working conditions.⁵

In addition, the Bill does not align comfortably with the three interrelated pillars of the UN Guiding

Principles on Business and Human Rights (UNGPs).

• Pillar 1 recognises the existing obligation upon states to respect, protect and fulfil human rights - in particular, we refer to principle 3(a) which provides that states should enforce laws that are aimed at, or have the effect of, requiring businesses to respect human rights.

• Pillar 2 recognises the role of business to respect human rights – in particular, we refer to principle 12 which provides that it is the responsibility of businesses to respect, at a minimum, internationally recognised human rights as expressed in the International Bill of Rights (ICPPR and ICESCR) and the ILO Declaration on Fundamental Principles and Rights at Work (includes

ILO 111).

• Pillar 3 recognises the needs for rights and obligations to be matched to appropriate and effective remedies when breached – in particular, we refer to principle 25 which provides that

¹ Prepared by John Hancock, Senior Legal Adviser

² Article 2 ILO 111

³ Article 3(b) ILO 111

^{4 Article 2.1, and 2.3}

⁵ Article 7 and 7(b)

it is the duty of the state to ensure that effective remedies are available to ensure protection again any business-related human rights breach or abuse.

Inconsistent with current policy and legislative settings

No contracting out

At a fundamental level, the Bill is inconsistent with s 238 of the ERA, which prohibits parties from contracting out of its provisions. Section 238 provides that:

“The provisions of this Act have effect despite any provision to the contrary in any contract or

agreement.”

The “no contracting out” provision has been a bedrock of New Zealand employment law for at least

25 years, since the enactment of the Employment Contracts Act 1991 (s 147). In addition, it is important to note that the issue of contracting out of the discrimination protections of the ERA (albeit in respect of employment agreements governed by foreign law) is due to be considered by the Supreme Court in June 2017 in the case of Brown v NZ Basing Ltd. The Commission is appearing as an intervenor in the proceeding.

Choice of procedures

More specifically, the Bill is inconsistent in its approach to the personal grievance and choice of procedures jurisdictions under both the ERA and the Human Rights Act 1993 (HRA).

The Employment Relations Amendment Act 2008, introduced section 67B of the ERA, which limits the personal grievance rights of employees under a trial period, notably does not prevent those employees from pursuing personal grievances under the ERA for discrimination and sexual and racial harassment. Indeed, the Explanatory Note to the 2008 Amendment Bill stated that “...remedies for discrimination, or sexual or racial harassment, will remain available to the employee if that type of behaviour has occurred.”.⁶

While this Bill does not prevent a higher earner from seeking redress under the HRA, it removes their current right to a choice of procedures (and thus has implications for the current choice of procedures provisions under s 79A of the HRA). It also removes their right to pursue remedies under the specific employment jurisdiction and dispute resolution process. Employment Court jurisprudence recognises that personal grievance claims often regard intermingled issues – a disadvantage claim may have discrimination aspects and vice versa, for example⁷.

Conclusion

In conclusion, the Commission recommends that the Bill is amended to retain the right to pursue a personal grievance on the human rights related grounds set out in sections 103(1)(c)-(f) and sections

104-109 of the ERA.

More generally, the Commission recommends that the Committee carefully consider the viability of the Bill, given that it is fundamentally inconsistent with the “no contracting out” provision under s 238 of the ERA.

⁶ http://www.legislation.govt.nz/bill/government/2008/0008/latest/DLM1765601.html

^{7 Brookers Human Rights Law Vol 1, HR79A.01, also see Roy v Board of Trustees of Tamaki College [2016]}

NZEmpC 20 at [206]