CONVENTION 111 NEW ZEALAND (TOKELAU)

Article 22 of the Constitution of the ILO

Report for the period 1 July 2004 to 31 May 2008
made by Tokelauon the

DISCRIMINATION (EMPLOYMENT AND OCCUPATION) CONVENTION, 1958 (No. 111)

 

1. Please give a list of the laws and regulations, bilateral or multilateral instruments, etc., which apply the provisions of the Convention. Where this has not already been done, please forward copies of such texts to the International Labour Office with this report. In so far as there exist measures other than legislation, administrative regulations, etc., which are relevant to the implementation of the Convention, please indicate their nature. Please give any available information concerning the extent to which these laws, regulations and instruments have been enacted or modified to permit, or as a result of, ratification.

In 2004 Tokelau agreed that all public services for Tokelau should be handled consistently and that common manuals and instructions should be developed for each village and the Apia based office.  In Tokelau, the Convention’s main principles are embodied in the Public Service Rules 2004 (the Rules) and the Tokelau Public Services Human Resources Manual (the Manual), which were approved and endorsed by the General Fono (Tokelau’s national legislative and executive body) in 2004. Rules of the General Fono have legal effect in Tokelau.

The Committee has already been provided with a copy of the draft Manual. A copy of the endorsed version of the Manual, the Code of Conduct and a copy of the Rules, is enclosed with this report.

Under Rule 2(4) of the Rules states that every person employed in the National Public Service or in the public service of a village shall, unless otherwise expressly provided in the employment contract, be employed in accordance with the conditions set out in the in Manual. The Manual presents the human resource policies, procedures and information relevant to those employed in the Tokelau public services. It covers all salaried employees, whether temporary or permanent. General workers (persons engaged to assist the village with village work e.g. maintenance) are also covered in Chapter 15 of the Manual.

2. Please indicate in detail, for each of the following Articles of the Convention, the provisions of the abovementioned legislation, administrative regulations, instruments, etc., or other measures under which each Article is applied. If in your country ratification of the Convention gives the force of national law to its terms, please indicate by virtue of what constitutional provisions the ratification has had this effect. Please also specify what action has been taken to make effective those provisions of the Convention which require a national authority to take certain specific steps for its implementation. If the Committee of Experts or the Conference Committee on the Application of Standards have requested additional information or have made an observation on the measures adopted to apply the Convention, please supply the information asked for or indicate the action taken by your Government to settle the points in question.

Article 1

1. For the purpose of this Convention the term “discrimination” includes:
   1. any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
   2. such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies.
2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.
3. For the purpose of this Convention the terms “employment” and “occupation” include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.

Rule 3(3) of the Public Service Rules 2004 states that appointments to the National Public Service shall be based on merit. Chapter 2 (2.5) of the Manual reiterates this requirement, and further sets out how merit is to be determined. This includes: work experience and competence shown in performance of duties carried out previously (whether in the Tokelau public services or elsewhere); personal qualities, and attributes relevant to the position; and relevant education and other qualifications.

3. Please state to what authorities or institutions the application of the above-mentioned laws, regulations, and international instruments, etc., is entrusted.

The Public Service Rules 2004 (enclosed) set out the lines of accountability in relation to National Public Service. There are specific processes for appealing appointment decisions set out in the Manual.

Previous reports have explained the special constitutional relationship between New Zealand and Tokelau. However, an information paper on the relationship is attached for the Committee’s information.

4. Please state whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention.  If so, please supply the text of these decisions.

No court or tribunal decisions of this kind have been issued in Tokelau.

5. Please add a general appreciation of the manner in which the Convention is applied, including, for instance, extracts from official reports and information on any practical difficulties in the application of the Convention.

Please see comments in previous reports.  The notions/ideals driving the Convention are cornerstones of the culture of Tokelau but the prescriptions of the Convention can be viewed by Tokelau as foreign western ideas.  However, once translated and expressed in their terms, as the Manual helps to do, there is a common understanding and motivation for the goals therein.  

6. Please indicate the representative organizations of employers and workers to which copies of the present report have been communicated in accordance with article 23, paragraph 2, of the Constitution of the International Labour Organization.  If copies of the report have not been communicated to representative organizations of employers and/or workers, or if they have been communicated to bodies other than such organizations, please supply information on any particular circumstances existing in your country which explain the procedure followed. Please indicate whether you have received from the organizations concerned any observations, either of a general kind or in connection with the present or the previous report, regarding the practical application of the provisions of the Convention or the application of the legislation or other measures implementing the Convention. If so, please communicate the text of these observations, together with any comments that you consider useful organisations of employers and workers to which copies of this report have been provided.

New Zealand Council of Trade Unions
Business New Zealand

Responses to comments made by the Committee of Experts on the Application of Conventions and Recommendations in 2007

1. Article 1 of the Convention. Protection against discrimination in the public service.
   
   The Committee notes that the Tokelau Public Service Code of Conduct of 2004 requires public service employers to develop and implement a human resources policy which includes “good and safe working conditions including freedom from harassment and discrimination”. Section 2.5 of the Code provides that employees shall “not discriminate against, harass (including sexual harassment) or bully others including for the reasons of gender, race, age, disability, religious or ethical beliefs”. The Committee further notes that section 13.1(b)(viii) of the Public Service Manual of 2004 provides for disciplinary proceedings when an employee contravenes the provisions of the Code of Conduct. The Committee asks the Government to provide information in its next report on the practical application of these provisions, including on any disciplinary proceedings taken on the basis of section 13.1(b)(viii). Please also indicate how protection against discrimination is provided with respect to the other grounds set forth in Article 1(1)(a) of the Convention, in particular “colour, national extraction, political opinion and social origin”.

These Comments are made in response by the Government of Tokelau:

• To date section 13.1(b)(viii) has never been used. The employees of the Tokelau Public Service are aware of Code of Conduct.
• Protection against discrimination is provided with respect to other grounds in Article 1 (1)(a) of the Convention in particular ‘colour, national extraction, political opinion and social origin”. This has never been an issue in Tokelau as employment opportunities are open to both men and women regardless of their colour, religion, social origin and so on. Further, provision 2.5 of the Code of Conduct protects all employees of the Tokelau Public Service from any kind of discrimination.

2. Discrimination based on sex.Maternity leave.
   
   The Committee notes that section 7.7(a) of the Public Service Manual provides that female employees who have completed at least one year’s service, may be granted maternity leave without pay for a period of up to two months. However, the first 30 consecutive days may subsequently be treated as leave on pay, provided that the employee resumes work before the expiry of six months’ leave, and that the position of the employee will be held for six months only (section 7.7(b) and (c)). It further notes that the Public Service Manual provides for leave without pay for both men and women for a period of up to 12 months (section 7.10). The Committee wishes to assure itself that the abovementioned provisions do not amount in practice to substituting maternity leave for leave without pay which would constitute discrimination against women. The Government is therefore invited to elaborate in its next report on the practical application of these provisions so as to ensure that women are not put in a disadvantageous position as compared to men with regard to their leave entitlements. Furthermore, the Committee points out that making maternity leave conditional upon at least one year of service would exclude women employed for less than one year from maternity protection, including protection against dismissal, which would be contrary to the Convention. The Committee requests the Government to provide information on the measures adopted or envisaged to secure maternity leave for all women employees.

These comments are made in response by the Government of Tokelau:

• The Manual for the Tokelau Public Service provides protection for all employees of Tokelau. Hence, to ensure that  employees, and mainly for the purpose of this Convention, women will not disadvantaged,  meetings for the public service are often held to discuss and bring more awareness to the employees on their entitlements under the Manual. There is a process where any employees could raise any concerns about their working conditions if they felt that they are not protected or have been discriminated against and that the manual needs to be amended to address their concerns.
• Since this Convention applies in Tokelau there is an obligation on the Government to comply with the principles of the Convention. Having looked at the manual particularly on the maternity leave provision, the Government may consider amending Section 7.7 Maternity Leave (a) and (b). Section 7.7 (a) and (b) implies that the women are disadvantaged when they go on maternity leave. Women employees should be acknowledged and given special treatment due to their child bearing role given by God. It is a privilege given to women from God to bear children and women should not be disadvantaged from the working place when exercising this role. Women employees are born as mothers and as mother they have been given a child bearing role by God. Women have a wider role in the social context of building a nation. The Government may consider amending the manual to give 3 months maternity leave. 
• Measures adopted or envisaged by Government to secure maternity leave for all women: As mentioned above the Convention applies in Tokelau and Tokelau must therefore comply with the Convention.

3. Practical application in the public and private sector. Please provide statistical information disaggregated by sex on the number of men and women employed in each of the positions in the grading and salary scales in Appendix 1, as well as information on the measures taken to improve the status of women in employment and occupation and the results achieved.

The comments are made in response by the Government of Tokelau:

• On the disaggregated data, refer to response to the Committee’ of Expert’s comments on Convention No. 100.
• Regarding information on the measures taken to improve the status of women in employment and occupation and the results are achieved:  Women employees are encouraged to voice any concerns regarding their status of employment with their Human Resources Adviser. The principle of equal employment is for both women and men and this is not an issue in Tokelau.

Tokelau offers equal employment opportunities regardless of sex, race, colour of skin, religion etc. As shown in the statistics information provided, more than half of the total national public services are females. That is 57.8% of the total national public service. In terms of race and ethnicity, 45.5% are Tokelauans, 18% Samoans, 6.8% Tuvaluan, 4.5% New Zealanders and 2.3% Fijians.