It has been 30 years since the Human Rights Act was first enacted, and it is one of the most influential pieces of legislation that has modernised employment law.
The Human Rights Act 1993 prohibits discrimination based on the grounds such as sex, race, age, disability, sexual orientation, religious belief, marital status, family status, political opinion, employment status, or union involvement. The Act covers all areas of employment, including recruitment, pay, training, promotion and termination. However, the law is not static and has been updated over time to reflect new developments and challenges in employment law. Some of the most recent changes are:
The Worker Protection (Migrant and Other Employees) Act 2023, which protects vulnerable workers from being exploited, especially migrant workers who may face language barriers, cultural differences, and visa restrictions. The Act creates new offences for employers who violate minimum employment standards, such as underpaying, withholding wages, or giving false or misleading information. The Act also creates a new visa category for victims of exploitation, allowing them to stay and work in New Zealand while their case is resolved.
The approval of the first Fair Pay Agreement (FPA) application for the bus transport industry, which will start bargaining between unions and employers to set minimum pay and conditions for all workers in the sector. FPAs are a new form of collective bargaining introduced by the Fair Pay Agreements Act 2022, which aims to improve wages and productivity, reduce inequality, and prevent a race to the bottom in low-paid industries. FPAs are expected to cover more sectors in the future, such as security guards, cleaners, and retail workers.
The increase of the time limit to raise a personal grievance related to sexual harassment from 90 days to 12 months, as part of the Sexual Violence Legislation Act 2022. This change recognises that victims of sexual harassment may need more time to seek support and advice before taking legal action against their harasser. The Act also strengthens the support and protection for victims of sexual violence in the criminal justice system.
The Employment Court’s decision in the Pilgrim case, which confirmed that the applicants, who were members of a church (Gloriavale) that required them to work long hours for little or no pay, were employees and entitled to minimum employment rights. The court rejected the argument that the applicants were volunteers who worked out of religious devotion, finding that there was an employment relationship based on mutual obligations, expectations, and benefits. The court ordered the church to pay more than $164,000 in arrears and penalties to the applicants. These recent changes show the need for human rights legislation to adapt over time in response to changing social and economic conditions, as well as international developments and obligations.
Although these changes help to bring human rights up to date, it seems that the Employment Relations Act 2000 may be lagging behind. The Employment Relations Act needs to be reformed to align with international human rights standards and to reflect the changing nature of work in the 21st century. For example, the Employment Relations Act could adopt a wider definition of discrimination and harassment that includes gender identity, expression, and sexual characteristics. The Employment Relations Act may establish a pay equity framework that requires employers to conduct regular audits and reviews of their pay systems and practices. The Employment Relations Act could also strengthen workers’ rights to freedom of association and collective bargaining by removing the opt-out clause for employers and prohibiting individual employment agreements that undercut collective agreements. By making these changes, the Act could ensure that all workers are treated with dignity and respect and that their rights are upheld and enforced.
While the Employment Relations Act provides employers with the legislative requirements, employers can look to improve their own work environment by creating and enforcing their own human rights policies and practices, which could follow the Human Rights Act and other relevant laws. They could also involve training and educating staff and managers on human rights issues, promoting equal opportunities and diversity in hiring and advancement, dealing with complaints and grievances quickly and effectively, and creating a respectful and inclusive work culture.
Human Rights and Employment Law are inherently intertwined and must continue to develop and adapt to society. The overarching issues that we envisage to be addressed in the upcoming future includes:
The recognition and protection of indigenous rights, especially those arising from the Treaty of Waitangi
The impact of globalisation and migration on the diversity and vulnerability of workers
The advancement of gender equality and pay equity in the workplace
The accommodation of disability and family responsibilities in employment
The prevention and elimination of bullying, harassment and violence at work
The promotion of decent work and living wages for all workers
These issues require ongoing dialogue and collaboration between employers, employees, unions, government agencies, human rights bodies and civil society organisations. Human rights law in New Zealand is not only a matter of legal rules and obligations, but also a reflection of shared values and aspirations for a fairer and more inclusive society. Even after 30 years of progress, there is a long way to go.
Buckettlaw welcomes discussion, given the proximity to the upcoming election, this may be timely. May the next 30 years move our human rights and employment laws in the right direction.