Labour rights in New Zealand


Labour rights in New Zealand are largely covered by both statute, particularly the Employment Relations Act 2000, and common law. The Ministry of Business, Innovation and Employment carries out most of the day to day administrative functions surrounding labour rights and their practical application in the state.
New Zealand is committed to a number of international institutions and treaties and is widely regarded as one of the world's pioneers in terms of enforcement of and protection of labour rights and obligations.

Ministry of Business, Innovation and Employment

The Ministry of Business, Innovation and Employment was formed in 2012. The Ministry describes its primary role is to "Grow New Zealand for All".
In relation to employment, the Ministry aims to provide more jobs and to increase the number of opportunities for New Zealanders to participate in more productive and higher paid work. It does this through a large variety of mechanisms, previously administered by what was then the Department of Labour. Some of MBIE's major services include:
New Zealand labour law primarily stems from statutes enacted by the New Zealand Parliament. A large series of these statutes combine to form what is known as the minimum rights and entitlements. Each individual Act of Parliament attempts to either: address a different segment of labour rights and obligations entirely, or; may address a smaller portion of labour rights in the subsidiary to some other major legislative theme.

Employment Relations Act 2000

The Employment Relations Act 2000 is the most fundamental employment law statute in New Zealand. The ER Act repealed the Employment Contracts Act 1991. It enacts a number of core provisions on freedom of association, recognition and operation of unions, collective bargaining, collective agreements, individual employment agreements, employment relations education leave, strikes and lockouts, personal grievances, disputes, enforcement of employment agreements, the Mediation Service, the Employment Court, the Employment Relations Authority and labour inspectors.
Many of the key provisions apply once an employment relationship has begun. This includes a principle duty to act in good faith and to communicate openly. Other provisions operate on an ongoing basis irrespective of the employment relationship and are more declarative, or administrative in nature.

Trade unions

Section 110 of the ER Act prohibits employers from discriminating against employees for their involvement in a union or other employees organisation. The ER Act acknowledges that there is an "inherent inequality of power in employment relationships" and promotes collective bargaining as a way of evening up the power disparity between employers and employees. It also "recognise the role of unions in promoting their members' collective employment interests" in Section 12. Other important recognition's contained in the Act include:
Under Part 3 of the ER Act trade unions in New Zealand have the right to association:
Under section 157 the Employment Relations Authority is defined as an investigative body that examines the facts of the case, as opposed to legal technicalities, in seeking to resolve problems with the parties' employment relationship.

Human Rights Act 1993

The Human Rights Act 1993 expressly prohibits discrimination on certain stated grounds including sex, race, family status, political opinion and the like. It applies to almost all aspects of employment including job advertisement, application forms, interviews and job offers. It also applies to unpaid workers and independent contractors. The ERA expressly applies the HRA to employment matters.

Discrimination

Workplace discrimination is dealt with under the Human Rights Act 1993.
Discrimination in employment can involve:
While the Act in New Zealand covers women, trans persons and discrimination based on cultural grounds a number of barriers still exist in practice in relation to persons who fall within these socio-economic groups. The findings from The Inquiry into Discrimination Experienced by Transgender People conduction by the Human Rights Commission in 2008 found that the majority of submissions made describing some form of discrimination focused on the area of employment. Four out of five submissions described examples of discrimination that ranged from harassment at work to vicious assault and sexual abuse. In 2010 the Centre for Applied Cross-cultural Research at Victoria University published a meta-analysis of all research relating to the experience of discrimination by Asian New Zealanders. The results found that Asian people experienced significant discrimination both working at and applying for jobs, and had higher rates of unemployment and under-employment than other ethnic groups.
If an employee has been unlawfully discriminated against during the course of employment they may pursue a person grievance under the ER Act through the MBIE or make a complaint under the Human Rights Act; however they cannot pursue both. If the discrimination occurs before employment, an individual can only pursue a complaint under the Human Rights Act.
It remains difficult to gauge the levels of workplace discrimination in New Zealand nationally due to inadequacies in data recording and reporting.

Other

Other important labour related legislation includes:
A number of rights and entitlements arise from the various employment enactments. Under New Zealand law, an employee cannot be asked to agree to less than the minimum rights and obligations as provided by the law. An employee must have a written agreement and the minimum employment rights must be met whether or not they are included in this agreement.

Minimum wage

The minimum wage rates apply to all employees and must be paid if a person is over 16 years of age and not a starting-out or trainee worker. The wage rates are reviewed annually by the government.
As at 1 April 2019, the minimum wage is set at $17.70 for adults and $14.16 for the starting-out rate.

Meal and rest breaks

Employers must keep an accurate record of an employee's time worked, payments, and holiday and leave entitlements. Employees are currently entitled to:
These requirements begin over again where the employee works more than eight hours. The legislation provides for breaks to be taken at times mutually agreed between the employer and employee. If there is no agreement, then the breaks must be evenly distributed throughout the work period.

Holidays and leave

Employees are entitled to four weeks' paid annual holiday leave at the end of each year of employment. New Zealand also has 11 annual public holidays and an employee is entitled to these days off work on pay, if they are days when the employee would normally work. Where an employee does work a public holiday, the employee must be paid at least time-and-a-half for the time worked and is also entitled to an alternative paid holiday. After 6 months of employment an employee is entitled to 5 days' sick leave on pay and paid bereavement leave. The entitlement varies from:
Employees may also be entitled to paid and unpaid parental leave if they meet certain criteria. This paid leave is funded by the government, not employers.

Common law

The second major source of New Zealand labour law is found in the common law. In the case of conflict between the common and legislation, legislation takes priority. However, there have been a number of landmark decisions in NZ employment law.
In 2003, New Zealand decriminalised sex work with the introduction of the Prostitution Reform Act 2003. Following this, in DML v Montgomery and M & T Enterprises Ltd the plaintiff alleged that the owner of a brothel at which she worked had sexually harassed her, causing humiliation, loss of dignity, and injury to her feelings. The Human Rights Review Tribunal found in her favor and awarded the plaintiff NZD $25,000; issued a declaration and a restraining order ; and ordered that the brothel's management staff undergo training to understand why sexual harassment is unacceptable.
In Talleys Fisheries Ltd v Lewis the New Zealand High Court found that a female employee had been the victim of gender-discrimination where her major employer Talleys Fisheries had segregated women into work which was paid less than a substantially similar position which was performed by men.
In Ministry of Health v Atkinson and Ors, parents who were caring for family members with disabilities challenged the Ministry of Health's policy of not paying them as discrimination by reason of family status. The tribunal agreed that it was discriminatory and that it could not be justified under section 5 of the NZBORA.

International obligations

NZ has ratified a number of human rights treaties containing obligations that pertain to domestic labour rights and obligations. NZ has also been a strong supporter of the International Labour Organization and has ratified the following 6 of 8 fundamental ILO Conventions:
New Zealand has expressed no intention of ratifying either the Freedom of Association and Protection of the Right to Organise Convention,, and the Minimum Age for Admission to Employment Convention, though is currently exploring the option to. New Zealand is also a ratifying party to a number of other Labour relevant international treaties. The treaties and the reservations made against each article contained in them are as follows:
The Human Rights Commission periodically releases an intensive report documenting human rights in New Zealand, mapping how they are being "promoted, protected and implemented." Of the thirty 'priority areas for action on human rights' released in the 2010 report, three were workplace and employment related. These included:
Barriers to employment and promotion and equal employment opportunities continue to be one of the major issues facing Māori and Pacific peoples across the full range of occupations. The Ministry of Development's Social Report 2010 assessed the social and economic wellbeing of New Zealanders across a range of indicators. It found higher rates of unemployment for young people, Māori, Pacific peoples and other ethnic groups, and lower rates of median hourly earnings for the same groups as compare with Pakeha/European groups. This was in line with findings from previous years. The report also found that 14 per cent of the population live in low-income households. Since 2001, the annual Social Report, published by the Ministry of Social Development, has charted improvements in unemployment and employment rates and outcomes for Māori in socio-economic outcomes for Māori. Despite these improvements, average outcomes for Māori tend to be poorer than for the total population and the median hourly earnings, occupational spread, representation in senior roles and workplace injury claims. Despite improvements over the last decade, these gaps have widened due to the economic recession that began in late 2008. Unemployment rates in particular have risen, and are higher for Māori than for non-Māori. Māori youth unemployment rates stand as one of the highest figures of any group in New Zealand, sitting at 30.3 per cent in June 2010.

Disabled rights

New Zealand has ratified the Convention on the Rights of Persons with Disabilities. Currently, disabled people, though being protected by a number of domestic statutes, are considered one of the most disadvantaged groups in New Zealand when it comes to the right to work, and barriers to employment such as gaining interviews. This was reflected in figures released in 2006 showing the New Zealand labour force participation rate for disabled people was 45 per cent, compared with 77 per cent for non-disabled people.

Gender rights

Despite having pioneered a number of rights issues in the international sphere, in 2010 the United Nations Human Rights Committee raised concern about the low representation of women in high-level and managerial positions and on boards of private enterprises with respect to compliance with arts 2, 3 and 26 of the ICCPR. It was recommended the state seek ways to encourage women participation in these roles including through enhanced cooperation and dialogue with partners in the private sector. Although the part-time employment rate in New Zealand has almost doubled for men since 1986, women continue to have a higher part-time employment rate than men. There was also pervasive inequality found between men and women in the sharing of power and decision-making at all levels. The current mechanisms in place were considered insufficient at all levels to address the advancement of women and the gender pay gap was criticised with average median levels of difference sitting at 10.6%.

Immigrant rights

Immigration in New Zealand is governed by the Immigration Act 2009. While, New Zealand generally complies with and exceeds international standards in terms of its legislation and policies where it regards race relations, barriers to employment and promotion continue to be one of the major issues facing migrants and refugees living in New Zealand. The Human Rights Commission cited that plight of migrant workers in New Zealand has received extensive mainstream media coverage on a range of issues including discrimination, exploitation and battles over work and entry visas.

OECD guidelines

The Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises are recommendations on responsible business conduct that have been adopted by governments in the OECD. New Zealand joined the OECD in 1973 and became a signatory to the guidelines when they were first adopted by the OECD in 1976.
The guidelines allow unions and other non-governmental organisations to hold multinational companies accountable for their behaviour. The guidelines cover a range of topics including: disclosure; human rights; employment and industrial relations. Although the guidelines are non-binding, they offer an opportunity to "name and shame" and to threaten the reputation of poorly behaving multinationals.
Governments that have signed the guidelines are required to set up a National Contact Point to promote them. In New Zealand the National Contact Point is the Ministry of Business, Innovation and Employment. The National Contact Point is required to consider any allegations of a breach of the guidelines by a multinational company headquartered in a signatory nation.