Dialogue: NZ drags the chain on human rights issues

ROSS BRERETON* says the Employment Relations Bill allows New Zealand to meet previously neglected international human rights obligations.

It is often forgotten that the right to fair terms and conditions of work, including the right to form and join trade unions, bargain collectively and strike, are fundamental human rights.

These rights are recognised in United Nations and International Labour Organisation covenants and conventions.

By ratifying United Nations human rights covenants and conventions, governments committed themselves to work progressively towards compliance with the principles contained within them.

It is a sad indictment that a human rights perspective has been missing from New Zealand's industrial relations legislation for some time. This has led to substantial criticism from UN and ILO human rights committees.

In the past 10 years, New Zealand has been a fertile source of UN criticism in relation to the Employment Contracts Act's continuing non-compliance with human rights standards.

For example, in 1993, the Government reported to the UN on compliance with the International Covenant on Economic, Social and Cultural Rights. The covenant committee expressed concern that the Employment Contracts Act might be incompatible with the right to form and join trade unions, to strike and other basic work standards.

UN criticism of the act did not stop there. When New Zealand reported on compliance with the Convention on the Elimination of all forms of Discrimination Against Women in 1998, it again came under the spotlight.

The convention committee noted with serious concern that the emphasis on individual contracts, rather than collective agreements in the act, was a major disadvantage for women in the labour market because of their dual responsibilities of work and family commitments.

The committee urged the Government to assess the impact of existing free market legislation on women's ability to compete with men in the labour market. It also noted the unsatisfactory employment situation faced by Maori women.

Perhaps the most scathing criticism of the Employment Contracts Act has come from the International Labour Organisation, a specialist UN body. A central principle of the ILO is that member states comply with Conventions 87 and 98 relating to freedom of association and protection of the right to organise, even if they haven't been ratified by that particular state. These conventions protect the right of trade unions to organise and to bargain collectively.

Although New Zealand is a member of the ILO, it remains one of the few members that have not ratified either convention. At last count, 148 countries have ratified one or both of these conventions. In 1993, the New Zealand Council of Trade Unions lodged a formal complaint with the ILO's Freedom of Association Committee that the Employment Contracts Act breached conventions 87 and 98.

The committee found that the act did not promote collective bargaining in accordance with ILO principles. Further, it suggested that unions should be entitled to strike in support of multi-employer collective agreements.

Despite this criticism from the Freedom of Association Committee, the Government refused to amend the act to comply with the conventions.

The Employment Relations Bill promises a new era in industrial relations by recognising core human rights principles. The bill goes some way to addressing international criticism of the Employment Contracts Act by promoting the principles of collective bargaining and recognising the inequality of bargaining power in the employment relationship. In particular, it enables New Zealand to ratify ILO conventions 87 and 98 for the first time.

The extension of the definition of discrimination to include all the grounds of discrimination referred to in the 1993 Human Rights Act is also welcome. This extends the grounds to include disability, political opinion, employment status, family status and sexual orientation.

These grounds are in addition to the existing grounds of sex, marital status, religious belief, ethical belief, colour, race, ethnic and national origins and age.

The bill also includes racial harassment as a ground for bringing a personal grievance. Until now, racial harassment in employment has been covered only by the Human Rights Act.

These changes mean that a person alleging discrimination on any of the grounds in the Human Rights Act, or alleging sexual or racial harassment, will have a choice of complaining to the Human Rights Commission or taking a personal grievance under the Employment Relations Bill.

Overall, the bill represents a significant shift in industrial relations towards a human rights focus, in accordance with New Zealand's international human rights obligations, and promotes better consistency with the Human Rights Act.

* Ross Brereton is a human rights commissioner.