Unequal contract, Margaret Wilson

The Vision And The Reality: Equal Employment Opportunities in the New Zealand Workplace
Janet Sayers and Marianne Tremaine (eds)
Dunmore Press, $42.95

For those of us who teach and research in subjects that discuss the practice and theory of equality in New Zealand, this book is a welcome addition to that literature. Although there is an abundance of overseas material on the subject of equal employment opportunities (EEO), the New Zealand experience has not been available in accessible form. This book is, one hopes, the beginning of a literature that seriously examines the concept and practice of equal opportunity within the employment context. The fact that the New Zealand experience is different from other countries becomes obvious on reading the book. Apart from the bicultural dimension to EEO in New Zealand, the country’s lack of a comprehensive legislative framework legitimising the concept and promoting its inplementation is an anomaly within the international context.

The editors in their introduction note that the original purpose of the book was to provide a textbook for a university course on EEO. The course itself appears to have been a response to demand from managers following the Employment Equity Act in 1990. That act required employers to institute their own programmes of EEO measures. Even though this legislation has the distinction of having the shortest shelf life of any act of Parliament, it appears that there is still sufficient interest to EEO to sustain this course of study. One can only hope this interest is maintained in the absence of a supportive policy environment., The kindest description of the policy environment at the moment is that it is one of disinterest, evident in the lack of an EEO legislative framework.

The Human Rights Act does provide individuals with a right not to be discriminated against in employment. But there is no statutory obligation to redress systemic or institutional discriminatory practices. A recent case in the High Court ‑ NZ Vans Ltd ‑ has made it clear that it is unlawful under the Human Rights Act to require employers to introduce programmes or practice that would prevent future sexual harassment. Affirmative action is not now recognised by the New Zealand legal system. This is the position since the Employment Equity Act, which required employers to acknowledge the existence of discriminatory employment practices resulting in detrimental treatment for some groups of employees, such as women, Maori, Pacific island peoples and people with disabilities. The Employment Contracts Act in 1991 has removed all obligation from private sector employers to review and remove discriminatory management practices.

EEO is now not a matter of state responsibility but of contract between employers and individual employees. Since the employer is in theory and practice the dominant partner in the employment contract, the employer will determine whether EEO is included as term of the contract. This change in the construction of the EEO discourse requires us to reassess precisely what is meant by EEO and whether it is still a useful mechanism for advancing the equality agenda. In other words, can EEO survive in this age of the new contractualism? At first sight it would appear that the chance of EEO surviving is not great. This is simply because it will depend on the bargaining strength and negotiating ability of individual employees and their much weakened trade union representatives. This contractual bargaining is currently conducted on the so‑called level playing field where there are no designer bumps such as the requirement to manage an enterprise in a non‑discriminatory way.

As a society New Zealand has never felt the need or the confidence to commit to writing an agreed statement of values or principles against which individual and institutional behaviour can be assessed. Such statements are usually found within a written constitution. The closest we have come is the Bill of Rights Act but it has no special status and can be repealed by a simple majority. Although equality was one of the concepts that drove the nineteenth-century movement for political democracy, there has been a reluctance in New Zealand to affirm the primacy of this principle. A result of this reluctance is to make the task of those who advocate EEO as a means of bringing fairness and justice for all employees very difficult. It is one of the strengths of this book that it records the experiences of some of the individuals who have worked within the EEO movement.

The book is divided into two parts. The first is an overview of EEO policy and practice, followed by the practice and theory of EEO. There emerge several themes. They include the tension between the objective of EEO, namely, fairness and justice for all people in paid employment, and the means to achieve this objective through EEO programmes of policies and practices; the emphasis on public sector experience with EEO programmes and the absence of private sector practice; the importance of the international obligations as a source of legitimacy for the EEO as an ideal; and the use by women of the concept of EEO as a means to come closer to equality (though there is ambivalence within the Maori and Pacific island communities as to usefulness of the EEO).

The historical development of EEO in New Zealand is reviewed by Celia Briar. This places the New Zealand experience within an international context. The international context is developed in Judy McGregor’s essay on New Zealand’s international obligations, in particular the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) ‑ a useful reminder of the importance of the international dimension in the absence of domestic legislation. The reporting requirements under CEDAW provide one of the few opportunities to examine critically the lack of progress here in EEO. Also if the optional protocol to the convention is accepted by the United Nations, there may be a real possibility of pursuing an inquiry by the CEDAW committee into New Zealand’s lack of compliance.

Although EEO in New Zealand has a relatively short history, it is one worth recording. Through past experiences much can be learned about where EEO goes under the current policy of voluntarism. Everyone involved in EEO development has her own events of significance in the struggle. I have two events that do not figure in the analysis.

The first was the campaign against discrimination that was mounted in the early 1970s and resulted in the 1975 report of the parliamentary select committee on the role of women in New Zealand society in which for the first time a select committee acknowledged the importance of the issue of women’s inequality. The report’s recommendations provided the blueprint for policy development over the next 10 years. Most important, submission writing and presentation politicised many women and introduced them to the process of policy formation.

The second event was the holding of women’s forums in 1984 to include women in the process of the establishment of the Ministry of Women’s Affairs. Amongst the recommendations from these much-contested forums was a commitment to EEO. This commitment proved important in 1987‑90 when the ministry became actively involved in the formation of the employment equity policy.

The fact that neither event features in the various accounts of EEO in New Zealand highlights how quickly women’s history disappears. Deborah Jones has a particularly interesting essay on EEO discourses. As the discourse moves from an emphasis on equality issues to issues of good management practice it is important not to underestimate the contribution of women to EEO. It is probably women who have most to gain or lose from EEO policy.

The essays of Marianne Tremaine and Paul Spoonley and the interview with Joe Doherty provide the best discussion available of Maori ambivalence to EEO. There is a tension between concepts of equality for individuals (article 3) and the right to self‑determination of Maori as a people (article 2). While I am attracted to Marianne Tremaine’s conclusion that working for EEO and the treaty are different ways of working for change within organisations, this subject would benefit from more analysis as to whether there is a fundamental cultural difference involved in the objective of EEO and article 2 of the treaty. Similarly Marilyn Kohlhase’s insightful and tough‑minded approach to EEO for Pacific island people deserves greater attention.

The fact that EEO programmes are found substantially in the public sector is due to the State Sector Act good employer provisions and the pioneering work of the women who worked in the State Services EEO Unit that is now part of the human resources development branch of the State Services Commission. Essays by Janice Burns and Rae Torrie and the interview with Diana Crossan provide some insight into the successes and limitations of the commitment to EEO in the state sector. Walsh and Dickson also provide an overview of the EEO in the public sector that should be read by all who are interested in the area. Other state sector contributions come from Wendy Wicks and Robyn Hunt, who provide the only essays on the most difficult application of EEO practice, namely, to people with disabilities, and from Heather McDonald who looks at the fundamental barrier to EEO for women ‑ their family responsibilities.

The private sector is not well represented in the book for the reasons that emerge from the interviews with Gill Ellis and Trudie McNaughton. The absence of EEO legislation will prevent any real penetration by EEO into the private sector. Finally the other essays in the book come from a group of women academics at Massey University, Nicola Armstrong, Janet Sayers, Marian Court and Bev Marshall, who, together with Rose Ryan, demonstrate that academic women working in this area can make a difference. Through this book, the whole issue of EEO can be kept on the policy agenda, at least within tertiary education institutions.

Margaret Wilson is Professor of Law at Waikato University.

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Posted in Gender, Non-fiction, Politics & Law, Review and Sociology
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