Introduction

While the Employment Relations Act provides the foundation for New Zealand’s employment law, the Health and Safety at Work Act, the Human Rights Act and the Privacy Act operate as its support structure. For employees, these statutes represent a legislative safety net that sets out minimum enforceable standards. From the point of view of employers, the laws enhance management practices and complement national and international quality, trade and labour standards. The Acts are often seen as a barometer of government employment policy and, in the case of the health and safety legislation, have been used as a precursor of fundamental reforms in employment policy and law – as happened in 1891 and 1988. In these instances, health and safety legislation signalled a shift in government policy from self-regulation to regulation and back again to self-regulation.

Seen as providing some of the basic rights to cover working conditions, privacy and discrimination, the three pieces of legislation have incorporated elements from similar overseas laws and international labour conventions. In order to avoid becoming overly complex, each Act sets out broad principles of compliance in an attempt to cover a wide range of contingencies. Individually, they represent powerful statues with significant penalties and compensatory remedies. For example, the maximum fine available under the Health and Safety at Work Act 2015 is generally $1,500,000 for a company or $300,000 for an individual., with prison terms possible for very serious offending.

In this chapter we provide an overview of the development of the Acts as well as a brief summary of the main principles contained in each statute. This is followed by a discussion highlighting some of the issues surrounding the Acts, such as the rise in the number of discrimination complaints and the reasons why this as occurred.

Occupational Health and Safety

Background

In New Zealand, occupational health and safety has been treated, for many years, as a matter subject to legal intervention. Originating with a specific concern for the protection of workers in the place of work, over the years efforts to control occupational health and safety by law had become piecemeal, complex and unwieldy. The 1970s saw many overseas countries review their occupational health and safety legislation. A notable example was the United Kingdom’s Lord Robens’ report (1972) on the safety and health at work which outlined the principle of one Act, administered by one regulatory authority, covering all workers. While the Robens’ Report has had a considerable influence in New Zealand – particularly its recommendation for more joint self-regulation by employers and employees – New Zealand directed its attention to a comprehensive ‘no-fault’ system of compensation in the case of industrial injury and disease (see the Accident Compensation Act 1972 and 2001, and the Accident Rehabilitation and Compensation Insurance Act 1992).

It was not until 1992 that a Robens-type occupational health and safety legislation was enacted in New Zealand. The Health and Safety in Employment Act 1992 (HASIE Act) was introduced as part of the National Government’s employment package. It was intended to reflect the Government’s hands-off approach to employment relations and began the process of rationalising occupational health and safety; that is, creating one Act administered by one regulatory authority. It embodied the part of the Robens model whereby state-imposed standards have been developed into performance standards (Campbell, 1992; Lamm, Rasmussen & Anderson, 2013).

The scope of the HASIE Act was broader than that of the previous legislation, which covered only private-sector businesses and identified workplaces by the kind of work carried out or by machinery or processes used. The Act included most employers (whether or not they are principals, self-employed, or control the place of work), and covered most places of work. It has also shifted the legislative emphasis away from the control of specific hazards to the promotion of risk management in relation to work activities. The onus was (and still is) entirely on the employer (and to a lesser extent on the employee) to ensure that they create a healthy and safe workplace, with the regulatory agency stepping in only once a breach has occurred.

The failures of the Health and Safety Legislation

Unlike previous occupational health and safety legislation which was more prescriptive, the Health and Safety in Employment Act 1992, set out general duties for employers and employees and was supported by regulations and codes of practices which relate to specific hazards. The responsibility and accountability for occupational health and safety rested primarily with the employer who had to establish systems to identify existing and new hazards and regularly assess each hazard to determine whether or not it is significant. Other key aspects of the Act were training and supervision of workers as well as ensuring that workers were kept informed of all hazards they may encounter while at work. Monitoring of workers’ health was also to be carried out if there is a possibility that hazards may cause immediate or long-term harm to their health. It also required the employer to keep a register of all accidents that occur and to notify the regulatory authority of any serious accident. Penalties for breaches under the HASIE Act were considerably more severe than was the case under the previous legislation, i.e. the Factories and Commercial Premises Act. A maximum fine of $100,000 or imprisonment for a maximum of one year, or both, were enforceable.

Yet despite the vast increases in penalties for non-compliance and publicity about high-profile court cases, the rate of workplace injuries, illness and fatalities failed to decline. Between June 1994 and June 2000 there were, on average, two work-related fatalities per week in New Zealand (New Zealand Department of Labour, 2000). Failure to significantly reduce the level of injuries, illness and fatalities was blamed by some on the fact that the HASIE Act 1992 deviated from the Robens’ model of one authority administering one Act covering all workers and including joint participation in all health and safety matters. Specifically, the New Zealand HASIE Act did not incorporate formalised, joint participation mechanisms nor did it cover all workers.

As a result of these failures, the Labour-Alliance Coalition Government introduced the Health and Safety in Employment Amendment Act 2002 designed to address the gaps in the HASIE Act 1992 that were seen to impede its effectiveness. In parallel to the policy approach behind the original HASIE Act 1992, the Amendment Act 2002 was seen as complementing the Government’s legislative initiatives in employment relations and accident compensation (Pashorina-Nichols, Lamm & Anderson, 2017). The common thread throughout the strategy for reform of the Act was the notion of partnership: joint employer, management, trade union and employee responsibility for improving health and safety performance. The substantive changes in the Amendment Act 2002 fell into five broad areas:

• more comprehensive coverage — the maritime, air and rail industries were included, coverage of mobile workers was confirmed, and protection was extended to some volunteers, persons receiving on the job training or work experience and “loaned employees”. Court decisions establishing that the concept of “harm” under the HSIE Act covered work-related stress, and that a person’s behaviour could be a “hazard” under the Act, were confirmed;
• employee participation — provision was made for good faith, co-operation ensuring employee participation in the decisions affecting health and safety, including mandatory elected health and safety representatives and health and safety committees in organisations with 30 or more employees;
• enforcement — more effective enforcement measures, including the imposition of infringement fees and hazard notices, were introduced;
• penalties — penalties for offences were increased significantly; and
• indemnities — indemnification against the costs of fines and infringement fees was prohibited.

These measures were also intended to comply with the International Labour Organisation’s (ILO) conventions on health and safety, with particular reference to Convention 155 which requires governments to adopt coherent national OHS policy and law with the purpose of improving OHS in the workplace (see ILO Convention No. 155 Occupational Safety and Health Convention (adopted 22 June 1981); (Anderson, Hughes & Duncan 2017).

Health and Safety at Work Act 2015

As with previous occupational health and safety statutes, neither the HASIE Act 1992 nor the 2002 Amendment, stemmed the rise in workplace fatalities, injuries and illnesses in New Zealand. The 2010 Pike River Coal Mine explosion that killed 29 workers, the horrendous fatality rate in some sectors, such as forestry, and the 2010 and 2011 earthquakes that struck the Canterbury region killing over 180 people, resulted in a number of major safety reviews, notably the Royal Commission on the Pike River Coal Mine Tragedy 2012, the Royal Commission on the Canterbury Earthquakes 2012, the Independent Taskforce on Workplace Health and Safety 2013 and the Independent Forestry Safety Review 2014.

The recommendations outlined in the reports were remarkably similar in that there needed to be a stand-alone, well-resourced health and safety enforcement agency administrating legislation that reflected the current work practices and complex workplaces. A leadership and culture change at the senior management level was also recommended and that New Zealanders in general needed a much lower tolerance of risky, unsafe and unhealthy work. Finally, tripartism should operate at all levels. That is, the Government and employer and worker representative bodies should provide joint oversight of the system. Moreover, at an operational level, workers and employers need to actively engage with the regulator in developing regulations, codes of practice and guidance materials. In the workplace, workers should participate in the management of health and safety.

Introduced by the National Coalition Government in 2014, the occupational health and safety reform package was aimed at reducing New Zealand’s workplace injury and death toll by 25% within a five-year period. The reforms saw the creation of a new and better resourced occupational health and safety enforcement agency, WorkSafe New Zealand, with occupational health and safety policy residing in the Ministry of Business, Innovation, and Employment. Although the new legislative framework continues the principles-based approach, it is heavily influenced by Australian legislation, the Work Health and Safety Act 2012. The new law, the Health and Safety at Work Act 2015 (HSWA), is supported by guidelines and introduced a number of key changes:

• A fundamental change to the definition of who is responsible for workplace health and safety. “Duty holder” will be replaced with the more inclusive concept of “a person conducting a business or undertaking” (PCBU). The term PCBU is intentionally broad in order to capture the broad range of working practices within New Zealand. In many cases, there will be several PCBUs working at the same workplace. For example, in a construction, there can be a principal contractor, contractor and sub-contractor all working on the same site. All parties are PCBUs under the new Act and as such are expected to manage the health and safety of those below them in the chain.
• Directors and other officers now have a duty to exercise due diligence to ensure that the organisation complies with health and safety duties and obligation.
• A shift from the “all practicable steps” test in the current legislation to a “reasonably practicable” test. The cost associated with available ways of eliminating or minimising risks will now be relevant to the assessment of what is reasonably practicable primarily when ‘the cost is grossly disproportionate to the risk’.
• Under the new statute, there is not only a requirement to identify hazards but there is also more emphasis on managing current and potential risks. This means taking into consideration the potential for work-related health conditions as well as the injuries that could occur.
• All PCBUs must have worker engagement and participation practices, regardless of their size, level of risk or the type of work they carry out. That is, PCBUs must engage with workers on health and safety matters that will – or are likely to – affect them and provide reasonable opportunities for workers to participate effectively in improving health and safety on an ongoing basis.
• The roles of mandatory elected health and safety representatives and health and safety committees were continued but the threshold was reduced to organisations with 20 or more employees.

Overall, the recent health and safety reforms that started in 2013 with the establishment of WorkSafe are certainly a move consistent with the Robens’ model (Pashorina-Nichols et al., 2017). And while the number of work-related injuries, illnesses and fatalities have not reduced dramatically, the rates have stabilised. An independent inquiry, An Independent Report: Investigation and Prosecution – Reflective Learning Assessment, was undertaken as a result of a growing number of work-related injury and fatalities cases that WorkSafe either failed or did not complete an investigation/prosecution (Jones, 2019). The report concluded that there were major failings around: demand, workload and caseloads; investigation and investigator management; case management business model; victim focus; alignment and national consistency (Jones, 2019). Furthermore, there are still persistent and widespread issues, such as under-reporting of dangerous health and safety incidences, the lack of a basic understanding of how to manage risks in the workplace, etc. It is clear, therefore, that the health and safety of employees is still a work in progress.

Privacy Act

Background

Concerns over individual rights in respect of how personal information is collected, stored and accessed have been raised by New Zealanders over the years. By the 1990s, information was part of the New Zealand infrastructure brought about by the increased sophistication of information technology and new innovations in surveillance equipment. As a result, issues surrounding New Zealanders’ privacy came to the fore and there was an urgent need to create legislation and an administrative structure that would advise on privacy issues and enforce the principles and policies under such legislation. There was also a need to develop contemporary guidelines that would be relevant to the workplace and that would complement other legislation, such as the Official Information Act 1982.

In 1991, the National Government enacted the Privacy Commissioner Act which established an administrative office and appointed a Commissioner before the Privacy Bill was passed. As a result, the Commissioner and staff were able to consult widely on privacy issues and investigate international trends in privacy law with the purpose of drafting legislation that would bring New Zealand’s law in line with that of other countries and would reflect the growing global emphasis on individual rights (Longworth & McBride, 1994). The subsequent Privacy Act 1993 was hailed by the government as ground-breaking.

The Privacy Act 1993

The basic philosophy underlying the Privacy Act is that of individual autonomy: the individual has a right to know what personal information is held about him or her by an organisation and for what purpose this information will be used. Respecting this right requires openness and accountability. Furthermore, the Act has implemented this philosophy by using principles rather than rules. There are 12 basic principles to which organisations must adhere, as listed below.

1. Personal information cannot be collected by an organisation unless it is done for a lawful purpose connected with a function or activity of the organisation and the collection of the information is necessary for that purpose.
2. Personal information can only be collected from the person concerned, unless the person agrees otherwise or the information is already public.
3. When personal information is collected from an individual, the organisation must ensure that the person is aware: of the purpose of the collection; of who will hold the information, and of the individual’s rights in respect of the information.
4. An organisation must ensure that personal information is not collected by unlawful means, or by means that are unfair or constitute an unreasonable intrusion on the personal affairs of the individual.
5. An organisation must also ensure that personal information is protected – using reasonable safeguards – against loss, unauthorised access and other misuse.
6. The organisation cannot keep personal information for longer than it is required for a lawful purpose.
7. A person is entitled to have access to the information held about him/her.
8. Requests made by an individual to have personal information corrected must be granted by the organisation concerned.
9. The organisation must ensure that personal information is accurate and not misleading.
10. Information collected for one purpose cannot be used for another.
11. An organisation cannot give information to anyone else unless that was part of the reason for its collection.
12. An organisation must not use personal identification numbers unless this is absolutely essential.

In summary, the privacy principles concern the collection, storage, use and disclosure of personal information by any agency concerning an individual. In the area of employment, these privacy principles are particularly relevant when: recruiting staff; terminating employment; managing staff; undertaking surveillance, drug-testing and medical screening. It, together with the Protected Disclosures Act 2020, also protects people who “blow the whistle” and disclosure of information in order to stop a particular unethical or illegal activity (see the Pugmire case, McGee, 2017). Under s 23 of the Act, every organisation is required to appoint a privacy officer to implement the legislation and monitor the organisation’s activities with regard to privacy issues. Breaches of the legislation are dealt with by the Privacy Commissioner and staff who have the mandate to investigate complaints, provide conciliation and ultimately forward unresolved disputes to the Complaints Review Tribunal which, in turn, has the power to award compensatory remedies of up to $200 000.

Recent Reforms

There have been significant developments in information technology since the Privacy Act was introduced in 1993. More personal information than ever before has been collected, stored and disclosed using social media, e-commerce, internet-connected devices, cloud storage and other new technologies. Personal information can be easily distributed around the world and large quantities of data are readily stored, retrieved and disclosed. Privacy breaches are also occurring regularly and often on a global scale.

It was clear, therefore, that the Privacy Act 1993, needed to be updated. The New Zealand Law Commission’s review of the Privacy Act in 2011 is the latest in a series of reviews. The Law Commissioners noted that the review of the Privacy Act was timely and called for the Privacy Act 1993 to be repealed and replaced with a modernised law. They also stated that:

The Act is now 18 years old. In this modern age, technology, and its ability to gather, store and disseminate information about people, has advanced beyond anything imaginable in 1993. Much personal information is held by large agencies in both the public and private sectors. It can be sent to agencies overseas. It is very important to people that their personal information is properly protected, and that the law is flexible enough to be able to move with the times and provide that protection. (New Zealand Law Commission, 2011, p. IV)

However, the Privacy Commissioner at the time, John Edwards, argued that the Bill did not go far enough (see Privacy Commissioner Annual Report, 2018a, p. 3). The Commissioner maintained that there was a need to be cognisant of the advances in technology as well as introducing meaningful consequences for non-compliance, that align with international best practice in a way that suits New Zealand’s unique society. Notwithstanding Mr Edward’s concerns, a new Privacy Act took effect from 1st December 2020, replacing the Privacy Act 1993. The 2020 Act supports early identification of systemic privacy risks and gives the Privacy Commissioner a stronger role. The changes also align New Zealand’s privacy law with international developments, such as the 2013 OECD Privacy Guidelines and the European Union’s General Data Protection Regulation. The Act incorporates key changes into New Zealand’s privacy framework, such as mandating reporting of data breaches, strengthening cross-border data flow protections, and empowering the Commissioner to issue compliance notices and access directions. The key changes are listed below:

• Requirements to report privacy breaches: If an organisation has a privacy breach that causes serious harm or is likely to do so, it must notify the people affected and the Commissioner.
• Compliance notices: The Commissioner will be able to issue compliance notices to require an organisation to do something, or stop doing something.
• Decisions on access requests: The Commissioner will make binding decisions on complaints about access to information, rather than the Human Rights Review Tribunal. The Commissioner’s decisions can be appealed to the Tribunal.
• Strengthening cross-border protections: New Zealand agencies will have to take reasonable steps to ensure that personal information sent overseas is protected by comparable privacy standards. The Act also clarifies that when a New Zealand organisation engages an overseas service provider, it will have to comply with New Zealand privacy laws.
• Class actions: The Act permits class actions in the Human Rights Review Tribunal by persons other than the Director of Human Rights Proceedings.
• New criminal offences: It will be an offence to mislead an organisation in a way that affects someone else’s information, and to destroy documents containing personal information if a request has been made for it. The penalty will be a fine of up to $10,000.
• Strengthening the Privacy Commissioner’s information gathering power: The Commissioner will be able to shorten the timeframe in which an organisation must comply with investigations and the penalty for non-compliance will be increased from $2,000 to 10,000.

Privacy Issues

One of the major concerns regarding privacy in New Zealand and elsewhere is the misuse and appropriation of personal information. A 2018 survey commissioned by the Privacy Commissioner (2018b) showed that over half the people surveyed (67 percent) were concerned about their individual privacy. Respondents felt particularly vulnerable when sharing personal information over social media, for example, when posting personal information on one’s career. Sixty-five percent of those surveyed were uncomfortable about submitting information on the web and 75% had little or no confidence at all that their electronic information would be secure. The 2018 survey also showed that New Zealanders were most concerned about organisations sharing personal information with other organisations (79%). While sixty-two percent of New Zealanders said they trusted government organisations with their personal information, trust in private sector organisations was significantly lower at 32 percent.

The other area of contention is how the Privacy Act 1993 principles conflict with the practice of drug testing and employee surveillance. Increasingly, employers are implementing surveillance and drug-testing regimes as health and safety measures in order to offset the likelihood that they will be prosecuted if a worker is injured while under the influence of drugs or alcohol, or observed to have committed a hazardous act. However, unions state that drug testing and surveillance contravene the principles and the tenets of the Privacy Act. Unions and workers argue that, on the one hand, employers are invoking the principles of the Privacy Act and are reluctant to divulge information pertinent to workers’ health and safety, yet on the other hand, they are ignoring the Privacy Act when implementing drug-testing and employee-surveillance schemes to mitigate health-and-safety fines. In a detailed analysis of the issues surrounding the Privacy Act, McIntosh (1995, p. 50) states:

Conformity to the Privacy Act principles is an essential part of a drug testing program. A term in a contract which permits drug testing will therefore need to ensure that the employees to be tested have full information about the testing procedures, and the nature of the information which will be passed to the employer by the drug testing laboratory. Employers will provide employees with this full information if they ensure that the term conforms to the Privacy Act principles.

The Office of the Privacy Commission (2018) also advises that an employer may only require employees and other workers to submit to alcohol or drugs tests if this is a condition of their appointment and recorded in the employment agreement or other document. Employees should follow all legal and reasonable requests from their employer. Whether or not it is reasonable for an employer to require an employee to undertake a drug test depends on a variety of different factors. It can mean balancing two factors, for example, drug testing may be necessary to protect the safety of employees but may also be viewed as an unreasonable intrusion into the privacy of employees. Testing for alcohol or drugs is much more difficult if it is not in the employment agreement. In short, employers thinking about drug testing employees should seek legal advice.

The increasing use by organisations of surveillance of their employees and customers is also controversial. Current technology enables employers to spy on their employees by tapping telephones, reading e-mail messages and monitoring computer screens. They can bug conversations, analyse computer and keyboard work, peer through close-circuit television cameras to monitor personal movements and analyse urine to detect drug use (illicit or otherwise). In a judgment concerning the surveillance of an employee, the Privacy Commissioner commented that under Principle 3 (see p. 89), the employer must make all reasonable efforts to ensure the person knows that information is being collected, what it will be used for, to whom it will be passed on, and the consequences of not providing the information (Slane, 1995). However, he added that under certain circumstances there are reasonable grounds to conduct surveillance without the consent of the employee. These circumstances are as follows:

• it is not reasonably practicable to draw the fact of surveillance to the employee’s attention if the surveillance is intended to reveal covert and unlawful behaviour (Information Privacy Principles (IPP) 3(4)(e));
• it would prejudice the purpose of collection of information if the employee is told that he/she is under surveillance;
• non-compliance with Principle 3 is necessary to gain sufficient evidence of theft to enable prosecution of an offender before a court (IPP 3(4)c(iv)).

More recently, it was revealed that a large number of government agencies were using a private security firm to carry out the surveillance of members of the public. Instigated by the Public Service Commission (2018), the subsequent inquiry into the use of external security consultants by government agencies, found that multiple government agencies not only broke the public service code of conduct in their use of private investigators to spy on an array of people including earthquake claimants and protesters, but also contravened the principles of the Privacy Act. It was also noted in the report that the law in this area is complex and developing. However, it is clear that surveillance by government agencies without a warrant may be unlawful if it involves an unlawful invasion of privacy; that is, a surveillance activity will amount to the tort of invasion of privacy if it is a highly offensive and unauthorised intrusion into seclusion in breach of a reasonable expectation of privacy (Martin & Mount, 2018, p. 21).

Thus, new technology continues to pose a challenge when it comes to ensuring that individuals’ privacy rights are upheld in the workplace. As more judgments are made by the Complaints Review Tribunal and the courts in terms of the Privacy Act, 2020 controversial or ‘grey’ areas, such as surveillance, drug testing and withholding or disclosing information, will become clearer. However, as happens with the Human Rights legislation, breaches of the Privacy Act continue to occur, with a number of public sector organisations repeatedly being listed as receiving more complaints than other organisations (Privacy Commissioner’s Annual Report, 2021). This point is particularly interesting, since the public sector is frequently seen as leading the way in advancing human rights and equal employment opportunities (EEO).

Human Rights Act

Human rights – an overview

Early examples of human rights-type legislation can be found in protective employment laws, such as the Females’ Act 1873, the Employment of Females and Others Act 1881, the Factories Act of 1894 and the Industrial Conciliation and Arbitration Act 1894. These Acts contained pro-human rights sentiments in that they set minimum standards of wages and conditions and allowed freedom of association (e.g. membership of trade unions). Also, New Zealand has been a signatory to the United Nations and International Labour Organisation (ILO) declarations and covenants on human rights since 1948.

However, traditionally law and policies on human rights lacked clarity and were contradictory and selective. The absence of anti-discriminatory laws fostered prejudice in New Zealand employment for over a century by favouring the rights of European men at the expense of women, children, physically and mentally impaired people and non-European workers. Furthermore, the practice of ensuring that men’s wages were higher than women’s and the segregation of women into a handful of occupations impeded the process of ensuring equality of the sexes in the workforce.

Throughout the 1960s and 1970s there was growing public disquiet about the continuing discriminatory practices in the workplace and in the wider society. One of the first pieces of human rights legislation was passed in 1960 and it promoted employment opportunities for people with disabilities. However, the movement to enforce equal pay and equal employment opportunities by law and to address the principles of the Treaty of Waitangi was led primarily by those working in the public sector. As a result, human rights principles became embedded in key public service employment legislation such as the Government Services Equal Pay Act 1960, the State-Owned Enterprises Act 1986 and the State Sector Act 1988.

The 1970s and 1980s saw the introduction of a succession of human rights legislation, aimed at curbing discriminatory practices in the workplace. The first such piece of legislation was the Race Relations Act 1971, and six years later the Human Rights Commission Act 1977 established the Human Rights Commission and the Equal Opportunities Tribunal. The Human Rights Commission Act prohibited discrimination on the grounds of: sex; race; colour; ethnic or national origin; marital status, and religious or ethical beliefs for employment, public access, provision of goods and services, accommodation and education. Sexual harassment was defined as discrimination under this Act. Twelve years after the passing of the Government Services Equal Pay Act, the Equal Pay Act 1972 was finally passed and applied to all private-sector workers.

During its 1984–1990 term, the Labour Government established the Ministry of Women’s Affairs (now known as the Ministry for Women), and then enacted the Employment Equity Act 1990 which went further than any other legislation to address employment inequities. When it was elected in 1990, one of the first actions of the National Government was to repeal the Employment Equity Act in 1990, but it enacted the Human Rights Act 1993 which replaced the Race Relations Act and the Human Rights Commission Act. While the Human Rights Act used the unlawful discrimination categories from the Human Rights Commission Act 1977, it was more wide-ranging and included categories such as age, disability, political opinion, employment status, family status and sexual orientation.

Complaints involving discrimination on the grounds of race, colour, national or ethnic origin covered under the Human Rights Act are currently dealt with by the Race Relations Office. The Office of the Race Relations Conciliator was first established by the Race Relations Act 1971 and currently has the responsibility of administering those parts of the Act that pertain to racial discrimination or racial harassment under the Human Rights Act 1993. For reasons of bureaucratic efficiency, the Office of the Race Relations Conciliator was consolidated with the Human Rights Commission by an amendment to the Human Rights Act in 2001. There are four Human Rights Commissioners – one of which is the Race Relations Commissioner.

The Human Rights Act 1993

The Human Rights Act protects both those seeking employment and those in employment and there is a wide variety of grounds on which it is unlawful to discriminate. The Human Rights Commission (1997, p. 1) states that:

Discrimination occurs where, under the same circumstances, someone is treated less favourably than someone else. Discrimination also exists where a condition is imposed which, although the same for everyone, unfairly disadvantages some people.

According to the Act, where a job applicant or an employee is qualified for particular job, it is unlawful for an employer or an employment agency to discriminate on the grounds listed below.

• Sex, which includes pregnancy and childbirth and sexual orientation, meaning a heterosexual, homosexual, lesbian or bisexual orientation.
• Marital status, which includes being single, married, separated, divorced, widowed or in a de facto relationship.
• Family status, which includes having or not having responsibility for children or other dependants; being married to or being a relative of a particular person.
• Religious, ethical beliefs or political opinion, including not having a political opinion.
• Ethnic or national origins, which includes nationality and citizenship.
• Disability, which includes physical or psychiatric illness, and most disabilities, including presence in the body of organisms capable of causing disease.
• Age, which provides protection from the age of 16. There is no upper age limit on discrimination.
• Employment status; that is, being unemployed or a beneficiary.

There are, however, exceptions that occur where discrimination is applied for genuine reasons as a qualification for a job. An example is requiring bar staff to be over 18 years of age in order to serve in licensed premises.

The primary function of the Human Rights Commission is to deal with complaints under the Human Rights Act, 1993, which its officers will have to investigate. Its officers might then have to conciliate with the aim of achieving a settlement. The key concepts driving the settlement process are that the complainant has suffered discrimination and that a remedy is necessary to put the matter right. Where possible, the Commission will make all efforts to conciliate a settlement in a way that is agreeable to both parties. The benefits of choosing the conciliation option are that it is usually quicker than an investigation, it involves fewer people, and it often assists the parties involved in restoring and maintaining a better working relationship. However, in most cases an officer will be required to investigate the substance of the complaint while at the same time endeavouring to reach a settlement. Settlements may include any of the following:

• apologies
• assurance that the behaviour complained of will not be repeated
• money to compensate for hurt feelings, loss of wages, counselling, and so on
• access to services previously denied
• equal employment opportunity or sexual harassment prevention programmes, counselling or education.

If a settlement cannot be reached, then the Director of Human Rights Proceedings will make the decision on an application for legal representation in the Human Rights Review Tribunal. The Complaints Review Tribunal hears complaints not only from the Human Rights Commission, but also from the Race Relations Conciliator, Privacy Commissioner and Health and Disability Commissioner. Like a judicial court, the Complaints Review Tribunal involves the process of litigation and has the power not only to award compensation to the Proceeding Commissioner on behalf of the complainant but also to make various orders, such as requiring the respondent to apologise to the complainant.

Discrimination issues

The number of complaints has increased substantially over the years. In 2017 there were 1392 enquiries and complaints alleging unlawful discrimination over the year, 1274 of which were classified as unlawful discrimination complaints – a 14% increase of complaints received the previous year. However, by 2020 there was an exponential increase in the number of complaints and enquiries, in which the Human Rights Commission received 5915 new enquiries and complaints, and of those, 1445 were complaints of alleged unlawful discrimination. Of the 1445 complaints of alleged unlawful discrimination the Human Rights Commission (2021a) received in 2019-20, the five main grounds cited were: 1) ‘race-related’ complaints (383); 2) disability (249); 3) sex (110); 4) age (93); and, 5) sexual harassment (69). These five grounds have been consistently the most cited over recent years.

As part of their core business, the Human Rights Commission has produced numerous reviews and submissions (see https://www.hrc.co.nz/resources/). More recently, the Commission has, for example, compiled submissions to: the Productivity Commission’s on immigration (2021); the Petitions Committee supporting the prohibition of modern slavery (2021); and the Ministry of Justice on restricting the incitement of hatred and discrimination (2021). In their submission to the Productivity Commission, the Human Rights Commission stated that it is important to apply a human rights lens to the issue of immigration, that respect for human rights should be at the heart of any immigration policy review, and that flexibility must be embraced in the way that the immigration operations are conducted.

Moreover, in response to a growing number of cases of modern slavery, in which most of the cases involved the exploited migrant workers, the Human Rights Commission has supported the need to enact anti-slavery legislation similar to the legislation in the UK and Australia. Protecting workers’ rights is also evident in the Human Rights Commission’s submission to the Ministry of Justice on preventing incitement of hatred and discrimination. Here they argued that it is important that offensive, insulting, abusive comments targeted at particular groups are called out as being unacceptable in the diverse, inclusive society of contemporary New Zealand.

Many of the complaints concerned discrimination on the grounds of disability. Currently, about 1 in 5 or 1.1 million New Zealanders has a disability (Disability Commission, 2021). In the Human Rights Act, disability covers the following:

• physical disability or impairment (e.g. respiratory conditions)
• physical illness
• psychiatric illness (e.g. depression or schizophrenia)
• intellectual or psychological disability or impairment (e.g. learning disorders)
• any other loss or abnormality of psychological, physiological or anatomical structure or function (e.g. arthritis or amputation)
• reliance on a guide dog, wheelchair or other remedial means the presence in the body of organisms capable of causing illness (e.g. HIV/AIDS or hepatitis).

In an effort to address the complex issues around disability, the Labour Coalition Government established the Office for Disability Issues in 2002 to assist the Minister for Disability Issues (see https://www.odi.govt.nz/). Sitting within the Ministry of Social Development, the Office for Disability Issues promotes action and monitors implementation and progress to improve the lives of those who have a disability. The Office also supports the implementation of the United Nations Convention on the Rights of Persons with Disabilities and the New Zealand Disability Strategy.

In a recent speech, the Disability Rights Commissioner, Paula Tesoriero noted that while advances had been made in the area of disability, there were still outstanding issues. For example, 43% of young disabled New Zealanders aged between 15-24 years are not in education, employment or training compared with 10% of non-disabled people. She also noted that only 25% of disabled people participate in the workforce, compared with 75% of non-disabled people and that the unemployment rate of disabled people is more than double the rate of non-disabled (Disabilities Commission, 2019).

In a study on the working experiences of people with disabilities, van Dalen (2017) also notes that people who are living with a disability are vastly overrepresented in New Zealand’s poverty figures, and 74% of those who are not in work want to be working. His study indicates that there is an increased likelihood of people with disabilities having lower incomes than people without disabilities. This is largely due to the high living costs and low incomes of people with disabilities. However, Disability Commission, (2021) argues that employing people with disabilities is beneficial to employers. Generally, such workers are loyal and committed employees, rate higher on attendance, and are less likely to take sick leave. Employees with disabilities improve wider organisational performance, increase understanding of customers with disabilities, and can raise standards and expectations of all employees. According to the Disability Commission, (2021), many of the costs involved in employing people with disabilities are one-off and often smaller than expected.

While complaints on the grounds of disability represent a significant portion of overall complaints received by Human Rights Commission, the Commission also received a large number of complaints on the basis of race, colour, national or ethnic origin. Since the outbreak of COVID-19 in 2020, the Human Rights Commission noted that there had been a parallel rise in the number of complaints of discrimination and racism by people from the Chinese, Asian, Māori and Pacific Island communities. The results from a survey led by the Human Rights Commission also showed that more than half of Māori and Chinese respondents experienced some form of discrimination, and Chinese had much greater concerns about their personal safety compared with other respondents. The most common forms of racism and discrimination reported by the nearly 2000 respondents were online and face-to-face negative racist and xenophobic comments, abuse, threats of violence and spitting. Māori and those of the Asian and Chinese community stated that their experiences of discrimination and racial abuse meant they struggled to feel a sense of belonging and they suffered mentally and emotionally because of it (Human Rights Commission, 2021b).

Discrimination on the basis of age and sex are also perennial issues. In a 2018 survey by the Commission for Financial Capability (now Te Ara Ahunga Ora Retirement Commission), over half of respondents felt that when applying for a job they were discriminated against on the basis of age (Commission for Financial Capability 2018). Moreover, while age and sex discrimination occur in a broad spectrum of occupations, they are more noticeable in the professional and managerial occupations. For example, in 2020 women held only 22.5% of board director roles and 25.4% of senior leadership positions in New Zealand Stock Exchange (NZX) listed companies (Ministry for Women, 2021). In addition, women made up 53.2% of the top three tiers of the public service, and half of its chief executives in 2020. While there is currently no official statistics on private sector pay gaps by industry or occupation, the Ministry for Women has been collecting data on the public sector. The public service gender pay gap has fallen to 9.6% by 2020 – the lowest gap since measurements began 20 years ago (Ministry for Women, 2021).

The Human Rights Commission, and other government agencies, have also had to respond to the public revelations of sexual harassment in high profile organisations. The international #MeToo movement, which was intended to expose sexual harassment in the entertainment industry, together with heightened media reporting of sexual harassment, put the spotlight on the issue in New Zealand. Up until 2018 data on the extent of the problem was scant. In the absence of any research, the national media outlet Stuff used the Official Information Act to investigate the scale of sexual harassment across nearly 1400 public organisations, employing 273,000 people (Anthony, 2018).

The audit revealed that the number of sexual harassment complaints increased year on year. In 2015 there were just 70 complaints, in 2016 there were 88 and in 2017 it spiked to 139. In the first four months of 2018 there were 60 complaints – which is tracking towards 180 by year’s end. The audit also highlighted major failings in how the organisations had responded to those complaints. One of the smallest organisations, Film Commission, with just 40 staff, had the highest rate of harassment: four female complainants in the past three years; three men accused of harassment. In all the cases, the commission treated the complaints as “informal” and resolved them “informally” (Anthony, 2018).

In response to the rise in the number of sexual harassment complaints, the Public Service Commission in 2019 initiated a system wide-work programme, led by two Public Sector chief executives. According to the Public Service Commission (2021), the work programme will help agencies to have work environments where people enjoy what they do, are respected for who they are, and contribute to the maximum of their potential.

Conclusion

Since 1992, occupational health and safety, privacy and human rights legislation has ensured that New Zealanders have some protection against the infringement of their rights. However, the onus is on the individual to seek redress for breaches of the legislation. The primary role of the occupational health and safety, privacy, human rights officers is investigative, relying almost entirely on incoming complaints. However, relying on the individual to make a complaint is problematic. There is growing evidence to show that there is a large degree of under-reporting of occupational health and safety, privacy and human rights violations against a backdrop of unemployment and insecure work. Recognising this perennial issue, the Race Relations Conciliator noted that:

Because employment involves people’s livelihoods and working environments, it is easy to understand why employees may be reluctant to complain. They may be fearful of their employer’s response to a complaint and therefore choose not to take this course of action … Employment-related discrimination, however, represents the primary area of complaint, despite our numbers placing it in third position. (Office of the Race Relations Conciliator, 2000, p. 29)

In spite of the many issues outlined in this chapter, there is no doubt that the three Acts have had a significant impact on employment relations. The substantial fines that can be imposed for breaches of the legislation have caused employers to rethink the way they manage their staff and the working environment they provide. In particular, there has been increased efforts between government agencies and employer and worker organisations to adopt a more collaborative approach in which there is a move away from the neo-liberal, market orientated approach to one that encourages employee involvement and is aligned more with the tenets of the Employment Relations Act of good fair bargaining and employee democracy.

References

Anderson, G., Hughes, J., and Duncan, D. (2017). (2nd ed). Employment Law in New Zealand. LexisNexis NZ Limited.

Anthony, J. (2018). ‘Sexual harassment complaints double: Behind everyone is a human story’. Stuff, 2nd September, https://www.stuff.co.nz/business/industries/106471651/sexual-harassment-in-public-sector-nearly-doubles-since-2015

Campbell, I. B. (1992). From no fault to own fault? Changes in OSH regulations. Journal of Occupational Health and Safety—Aust. & NZ, 8 (1), 3-4.

Commission for Financial Capability. (2018). Ageing Workforce: Business- Survey Results. Commission for Financial Capability New Zealand.

Disability Commission. (2021). Annual Report. Health & Disability Commission New Zealand.

Human Rights Commission. (2019). Disability Rights in Aotearoa New Zealand – Where Have We Got To? Paula Tesoriero, Disability Rights Commissioner, https://www.hrc.co.nz/news/disability-rights-aotearoa-new-zealand-12-years-where-have-we-got/

Human Rights Commission. (2022). Annual Report 2019-2020. https://www.hrc.co.nz/news/latest-annual report-released/

Human Rights Commission. (2021). Prevalence and Patterns of Racism and Xenophobia in the Covid-19 Context: A focus on Chinese and Asian communities, https://apo.org.au/node/311028

Human Rights Commission. (2020). Annual Report. https://www.hrc.co.nz/files/8116/0850/9706/HRC_Annual_Report_19-20_FINAL.pdf.

Human Rights Commission. (1997). Pre-Employment Guidelines: Based on the Human Rights Act 1993. Auckland: Human Rights Commission.

Jones, G. (2019). An Independent Report: Investigation and Prosecution – Reflective Learning Assessment, WorkSafe New Zealand.

Lamm, F., Rasmussen, E. and Anderson, A. (2013). The Case of the Disappearing Department of Labour: Whither goes state protection for vulnerable workers. In Sargeant, M. and Ori, M. (Eds.). Vulnerable Workers and Precarious Work (pp. 184-219). Cambridge Scholars Publishing.

Longworth, E., and McBride, T. (1994). The Privacy Act: A guide. GP Publications.

McIntosh, I. (1995). Employee Drug Testing in New Zealand. LLB Thesis, University of Auckland.

McGee, D. (2017). Ombudsmen and Officers of Parliament: Ombudsmen – whistleblowing. Te Ara, The Encyclopaedia of New Zealand. https://teara.govt.nz/en/ombudsmen-and-officers-of-parliament/page-5

Martin, D. and Mount, S. QC. (2018). ‘Inquiry into the use of external security consultants by Government Agencies’. Public Service Commission.

Ministry for Women. (2021). Annual Report of Manatū Wāhine Ministry for Women. https://women.govt.nz/documents/annual-report-2021

New Zealand Department of Labour. (2000). The Costs and Benefits of Complying with the HSE Act 1992. The Department of Labour Occasional Paper Series 2001/4. Wellington: DOL with the Ministry of Economic Development.

New Zealand Law Commission. (2011). ‘Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4’. [2011] NZLCR 123.

Office of the Race Relations Conciliator. (2000). Annual Report. Human Rights Commission.

Pashorina-Nichols, V., Lamm, F. and Anderson, G. (2017). Reforming workplace health and safety regulation: Second time lucky. In Anderson, G., Geare, A., Rasmussen, E. & Wilson, M. (Eds.). Transforming workplace relations in New Zealand 1976-2016 (pp. 129-148). Victoria University Press.

Privacy Commissioner. (2018a). Annual Report of the Privacy Commissioner. Privacy Commission New Zealand.

Privacy Commissioner. (2018b). Privacy Concerns and Sharing Data. Privacy Commission New Zealand.

Public Sector Commission (2021). Positive and Safe Workplaces. https://www.publicservice.govt.nz/resources/positive-and-safe-workplaces/

Robens, L. (1972). Report of the Committee on Safety and Health at Work. London: Majesty’s Stationery Office.

Slane, B. (1995). Privacy Commissioner’s Case Notes. Case Note: 0632. Privacy Commissioner, January.

van Dalen, D. (2017). Acknowledging ability: Overcoming the barriers to employment for people living with disabilities. Maxim Institute., https://www.maxim.org.nz/article/acknowledging-ability/

Current Legislation

Accident Compensation Act 2001

Employment Relations Act 2000

Equal Pay Act 1972

Health and Safety at Work Act 2015

Human Rights Act 1993

Official Information Act 1982

Privacy Act 2020

Privacy Commissioner Act 1991

Public Service Act 2020

Race Relations Act 1971

State Owned Enterprises Act 1986

State Sector Act 1988

International Instruments

European Union General Data Protection Regulation (EU 2016/679)

International Labour Organisation Occupational Safety and Health Convention, 1981 (No. 155)

OECD Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data (Adopted 23 September 1980, Amended 11 July 2013, Follow-up report 2021)

United Nations Universal Declaration of Human Rights 1948

Enquiries

Independent Forestry Safety Review 2014

Independent Taskforce on Workplace Health and Safety 2013

Royal Commission on the Canterbury Earthquakes 2012

Royal Commission on the Pike River Coal Mine Tragedy 2012