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Comments adopted by the CEACR: Tokelau

ADOPTED_BY_THE_CEACR_IN 2020

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.
The Committee notes the observations of Business New Zealand, as well as the observations of the New Zealand Council of Trade Unions (NZCTU), received on 30 September 2019, together with the Government’s report.
Parts II and III of the Convention. General principles. Improvement of standards of living and other social policy objectives. The Committee recalls that, following two self-determination referenda held in 2006 and in 2007, the focus of the relationship between New Zealand and Tokelau since 2008 has been to address the core requirements of the three atoll populations before Tokelau undertakes any further act of self-determination. The Government indicates that, from July 2015 to June 2018, New Zealand contributed 35 million New Zealand dollars in budgetary support and an additional 5 million dollars to strengthen public services in Tokelau. The Government adds that, in 2018, New Zealand announced a further investment of 86 million dollars over the next four years to improve core public services and strengthen governance and management practices. The Government affirms its commitment to ensuring that quality education helps the youth of Tokelau to achieve their potential. With this objective, it conducted an Education Review in 2013 and a follow-up review in 2018 to identity improvements needed. The Committee notes that New Zealand commissioned an independent review in 2018 of clinical health services and patient referrals to identify opportunities to strengthen the health services provided. Furthermore, the Government indicates that, in December 2017, New Zealand announced an investment of 22.2 million dollars to connect Tokelau to undersea fibre-optic cables that will provide faster internet connection. In addition, the Committee notes with interest the steps taken by the Government towards building resilience to the impacts of climate change that the atolls are already experiencing. In this context, the Committee notes that the National Strategy for Enhancing the Resilience of Tokelau to Climate Change and Related Hazards (2017–2030) focuses on integrating climate change adaptation and disaster risk reduction in village decision-making. It also notes the increased technical assistance provided to the Taupulega (Village Councils) and public servants to incorporate climate change and disaster resilience in village planning. In its observations, Business New Zealand notes the steps taken by the New Zealand Government to improve the standards of living of the population of Tokelau. It observes that Tokelau’s primary sources of revenue stem from its fisheries and New Zealand’s development assistance, while the commercial activity carried on in Tokelau is limited, with trade relying mostly on imports. Business New Zealand also observes that, given that Tokelau is a small and isolated island, younger persons and those with families often decide to emigrate in pursuit of better employment and education opportunities overseas. The Committee requests the Government to continue to provide updated information on the progress made in pursuing the social and economic policies covered by the provisions of the Convention applicable to Tokelau, including disaggregated statistical data illustrating that the improvement of standards of living of the population is regarded as the principal objective in the planning of economic development. Noting the climate change challenges that Tokelau is facing, the Committee request the Government to provide updated information on the nature and impact of measures taken in the framework of the National Strategy for Enhancing the Resilience of Tokelau to Climate Change and Related Hazards (2017–2030).
Part IV and VI. Migrant workers. Abolition of discrimination. The Committee recalls the Government’s indication that the application of the provisions of the Convention related to migrant workers should be examined in the context of Tokelau’s cultural and geopolitical context. The Government refers to the Tokelau Immigration Regulations 1991, according to which non-nationals may not work in Tokelau unless they hold a current work permit or a current special permit that authorises them to work in Tokelau. The Government indicates that migrant workers in Tokelau are normally there to complete specific projects. In this respect, Business New Zealand expresses the view that, given that the vast majority of migrant workers in Tokelau work on specific projects for a limited period only, no issues arise with regard to migrant workers. The Committee recalls that in its previous observations, the NZCTU had observed that provisions concerning migrant workers and non-discrimination should receive expression in the Tokelau jurisdiction to the extent possible. The Committee reiterates its request that the Government provide updated information on measures taken or envisaged relating to migrant workers (Articles 10–13) and abolition of discrimination (Article 18).
Part VIII. Modifications to the provisions of the Convention. The Committee recalls that, in its declaration of 18 February 1954, appended to its ratification of the Convention, the Government of New Zealand undertook to apply the provisions of the Convention to the Tokelau Islands, subject to the following modifications: that the provisions of Part V of the Convention (Articles 14–17, concerning the remuneration of workers and related questions) and of paragraphs 2 and 3 of Article 19 of the Convention (concerning child labour, the school-leaving age and the minimum age for admission to employment) would not be applied to the Tokelau Islands (ILO, Official Bulletin, 31 December 1954, Vol. XXXVII, No. 7, page 377). The Committee notes that the rationale for the continued reliance of the Government on the modifications is that there is a lack of trade unions and of relevant legislation governing the matters arising under Article 14(1), and that these Articles therefore continue to be inapplicable to Tokelau. The Government reports that there have been no changes in the application of the Convention and that remuneration agreements continue to be negotiated either on a collective basis (i.e. between the Taupulega of each of the three villages) or on an individual basis. On the other hand, Business New Zealand is of the view that the provisions of the Convention related to the remuneration of workers do not apply to Tokelau. It observes that, due to the communal nature of Tokelauan society, sources of income, the most common being the public service salary, welfare benefits and inati (a communal fishing and distribution practice), are shared among households. The Committee recalls that the NZCTU had previously urged the Government to consider ending its reliance on these modifications. It maintained that the New Zealand Government should consider together with the Tokelau Government how freedom of association and the right to collective bargaining are guaranteed in Tokelau. The Committee therefore reiterates its request that the Government consider the possibility of taking such action in the near future in accordance with Article 22(3) of the Convention and article 35, paragraph 3 of the ILO Constitution.

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The Committee notes the observations of Business New Zealand and the New Zealand Council of Trade Unions (NZCTU) communicated with the Government’s report. Both organizations raise issues regarding the implementation of the Convention. The Committee notes more particularly that (1) the NZCTU questions whether the Convention is applied in Tokelau in any meaningful manner; and (2) Business New Zealand considers that the Convention tends to be too prescriptive to have strict relevance in Tokelau where the income is generally seen as household rather than individual income. The Committee takes note of these observations and wishes to recall, in that regard, that the obligation of any State in ratifying the Convention is to “promote” the application of the principle of equal remuneration for men and women for work of equal value by means appropriate to the methods in operation for determining rates of remuneration; and to “ensure” its application to all workers, insofar as this is consistent with such methods. While the Convention allows no compromise in the objective to be pursued, it provides flexibility regarding the measures to be used and the timing in achieving its objective (see General Survey of 2012 on the fundamental Conventions, paragraphs 659 and 670). The Committee asks the Government to provide information on any measures taken: (i) to raise public awareness of the principle of equal remuneration between men and women for work of equal value, in particular among workers, employers, their respective organizations, and enforcement officials; and (ii) to promote its application both in the public and private sectors, including with the cooperation of social partners.
Articles 1 and 2 of the Convention. Addressing the underlying causes of the gender pay gap. Occupational segregation. The Committee notes, from the 2016 Tokelau Census of Population and Dwellings, that more men than women are in paid employment (70.0 per cent and 49.9 per cent respectively) and almost all Tokelauans who have full-time paid employment are employed in the public sector. It further notes, from the statistical information provided by the Government in its report, the distribution of men and women in the public service (national level only) in the different grades, and particularly that, both in the general and specialist scales, women represent 60 per cent of the national public servants. It notes however that, in the three higher bands of the pay range, as regards the general scale, two women are employed compared to one man, while as regards the specialist scale where remuneration is higher, 6 women are employed compared to 16 men. On the other hand, in the three lower bands of the pay range, in the general scale, 14 women are employed compared to 8 men (no specialist scale). The Committee asks the Government to supply information on any measures taken or envisaged: (i) to reduce vertical and horizontal occupational segregation, including steps taken to increase women’s access to education and training in sectors that are predominantly occupied by men; and (ii) to enhance the economic participation of women in the private sector.
Articles 2 and 3. Application of the principle of the Convention. Objective job evaluation. Public service. The Committee previously noted that the National Human Resource Manager had been instructed to implement the new Remuneration Framework that was endorsed by the competent authority in March 2016 with a view to aligning all salaries of national and village employees. It requested the Government to indicate how the application of the principle of the Convention had been ensured in the context of the new framework. The Committee notes the Government’s indication, that the Hay job evaluation method was used to evaluate all positions in the Tokelau public service and the evaluation focused purely on the key duties and responsibilities of the job. The Government adds that two job evaluation training workshops were held for heads and managers of government departments and village Council Office in order to enable participants to apply and use this job evaluation method. The Committee notes that the application of the new Remuneration Framework was conducted by Human Resources Officers both at the villages and national levels. The Committee welcomes this information. Referring to its previous comments concerning the review of the Human Resources Manual (HRM), which provides that an employer may, in exceptional cases, place an employee on any salary step they deem fit notwithstanding the normal salary range applying to the position, it notes the Government’s statement that the review of the HRM is still ongoing. The Government adds that the Office of the Tokelau Public Service Commission will conduct the remaining consultations across the villages and the public service before the final version is submitted to the competent authority for consideration. Concerning the possibility to consider the salary levels in the home market of non-Tokelauan applicants when determining the remuneration for senior management positions in the public service, which may result in pay differences between women and men for the same position when women senior officials are recruited locally and men senior officials are recruited from outside Tokelau, the Committee notes the repeated lack of information provided by Government concerning the form of such pay differences. In the absence of further clarifications, the Committee again asks the Government to indicate whether differences in salary between Tokelauan and non-Tokelauan employees take the form of a difference in the basic wage or additional allowances and how the issue has now been dealt within the new Remuneration Framework. It also asks the Government once again to take the necessary measures to ensure that the principle of the Convention is taken into account in the review of the HRM, and to provide information on any progress made in the review.

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The Committee notes the observations of Business New Zealand communicated with the Government’s report.
Article 1 of the Convention. Protection against discrimination in the public service. The Committee previously noted that: (1) section 2.5 of the Public Service Code of Conduct of 2004 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”; and (2) section 13.1(b) of the Public Service Human Resources Manual (HRM) of 2004 provides for disciplinary proceedings when an employee contravenes the provisions of the Code of Conduct. The Committee notes the Government’s statement, in its report, that workshops were conducted where villages Human Resources Advisors and national public services come together to ensure that they share common understandings, interpretations and applications of the public service policies and procedures stipulated in the HRM, Code of Conduct and other policies. It further notes that the review of the HRM is still ongoing and the Office of the Tokelau Public Service Commission will conduct the remaining consultations across the villages and the public service before the final version is submitted to the General Fono for consideration. The Committee asks the Government to continue to provide information on the application in practice of the Public Service Code of Conduct, including on any complaints or disciplinary proceedings under section 13.1(b) of the HRM. It further asks the Government to provide information on: (i) the progress made in the review of the HRM; and (ii) any specific steps taken to raise awareness among public officials of the Code’s provisions on non-discrimination and harassment.
Discrimination based on sex. Maternity protection. Public service. The Committee previously noted that, pursuant to section 7.7(a) and (b) of the HRM, women employed for less than one year in the public service do not qualify for the 30-day paid maternity leave, and pointed 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. It also noted that, during consultations on the Manual in villages, women asked for a review of the provisions concerned. Recalling that the review of the HRM is still ongoing, the Committee asks the Government to take the necessary steps to amend section 7.7 (a) and (b), with a view to ensuring that women employed in the public sector for less than one year have the same level of maternity protection as women employed for more than one year, including protection from dismissal.
Articles 2 and 3. Equality of opportunity and treatment between men and women. With respect to the employment of women, the Committee notes that, according to the 2016 Tokelau Census of Population and Dwellings, more men than women are in paid employment (70.0 per cent and 49.9 per cent respectively), with women being concentrated in the following sectors: labourers, agriculture and fisheries workers (40 per cent), professionals workers (36 per cent), and clerical and administrative workers (10 per cent). In contrast, men are more likely than women to be technicians and trade workers (20.1 per cent of men, and 1.5 per cent of women). Traditional roles are also reflected in unpaid work where men mostly help with village fishing (59.4 per cent), while women mostly care for the children (80.6 per cent). The Committee further notes, from the census, that in 2016, 31.3 per cent of women had no qualification compared to 29.6 per cent of men. However, the proportion of women still studying at tertiary level was higher than for men (7.9 per cent and 3.1 per cent respectively). The Committee notes the Government’s statement that, while the National Policy and Action Plan for Women of Tokelau (NPAP) ended in 2015, the Tokelau National Strategic Plan 2016–2020 and Villages Plans capture the essence of improving the quality lives for all the people of Tokelau and women are included. The Committee observes that the National Strategic Plan contains a specific outcome to improve education but that no specific reference is made to women’s access to training or employment. The Government further indicates that the Tokelau National Women Conference held in April 2019 was an opportunity to empower the women and girls of Tokelau with knowledge and information pertaining to national core services provided for the people of Tokelau, in particular education, and particularly closely examining those national services from women’s perspectives. It adds that, as a result of the conference, a report with resolutions and recommendations on specific services that must be improved to remove any barriers and discrimination against women and girls was developed and will be submitted to the competent authority. Welcoming this information, the Committee asks the Government to provide information on: (i) any measures taken to improve equality of opportunity and treatment between men and women in all aspects of employment and occupation, including education, training and employment, in the framework of the Tokelau NSP 2016-2020 or otherwise; (ii) any steps taken to develop a new national policy and action plan for women of Tokelau; (iii) the conclusions and recommendations in the report adopted following the Tokelau National Women Conference; and (iv) the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, both in the public and private sectors.
General observation of 2018. The Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction, which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.
The Committee draws the Government’s attention to its general observation of 2018 and asks the Government to provide information in response to the questions raised in that observation.
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