SECTION 10: STRATEGIES AND TOOLS - REGIONAL LEVEL
Module 10 (continued)
The Right to Work and Rights at Work
Rights at Work or Labor Rights
Closely related to the right to work are rights at work or labor rights. This is the set of rights that protects the person who sells his or her labor. These rights include:
There is a close relationship between labor rights and trade union rights. Wage work emerged with the advent of the industrial revolution. Initially, there were no laws to protect the health of wage earners, no limits on the workday and no paid holidays, nor was there a right to organize on behalf of the common good. At first, the organizing of wage earners suffered harsh repression, and later it was merely tolerated. Ultimately, the contemporary regimes protecting labor rights were instituted. Thanks to their exercise of the right to organize trade unions, workers have won and maintained many work-related rights. Labor rights include the right to freedom of association, collective bargaining and the right to strike.
The right to dignified working conditions
The preamble of the 1944 International Labour Organization Constitution, which the ILO and its oversight organs have acknowledged to have the force of law and to be legally binding on member states, is the touchstone in international law for the right to dignified working conditions. In effect, the preamble proclaims the urgency of improving conditions of injustice, misery, and privation. It notes that "the failure of any nation to adopt humane conditions of labor is an obstacle in the way of other nations wishing to improve the lot of workers in their own countries."
The right to dignified working conditions is closely linked to the prohibition against slavery, servitude and forced labor. Even though most states today recognize the right to dignified working conditions, numerous forms of work persist in the world that are at odds with the right to dignity; these especially affect women and children.
In some countries debt servitude exists, and, in others, domestic servitude is practiced, with the employer having complete control over all aspects of the workers lives. In other countries, problems have been identified that entail the exploitation of children in prostitution and pornography. In many cases, there is national legislation outlawing such practices, but it is never fully enforced. Such situations clearly pose challenges to human rights activists, particularly activists organizing around ESC rights.
Prohibition of forced labor
Forced labor is defined as labor required under the threat of punishment, whatever it may be, and for which the individual has not offered himself or herself voluntarily. While most states have ratified the pertinent international instruments and proclaim the freedom to work in various forums, to consider forced labor a thing of the past would be a glaring mistake.
In reality, the forms of forced labor that affect the freedom to accept work often go unnoticed, and on occasion enjoy some social support. In several countries, prisoners are required to perform forced labor beyond the terms allowed in ILO Conventions 29 and 105.6 In other countries, persons are prevented from resigning from certain posts; other countries impose criminal sanctions for participation in strikes; and in others, persons rendering obligatory military service are forced to perform activities beyond those strictly military in nature.
Right to a minimum level of remuneration
Article 7(a)(ii) of the ICESCR guarantees the right to remuneration that provides for dignified living conditions for workers and their families. A similar provision appears in article 23 of the Universal Declaration of Human Rights. The ILO has adopted conventions that regulate the setting of minimum wage.7
The main problems posed to the recognition and enjoyment of this right relate to the methods used to determine minimum wage. Many governments often unilaterally determine it. The minimum hourly wage should be fixed in a way that allows a person working the normal number of hours per week to enjoy a decent and adequate standard of living for his or her family. Minimum wage legislation (already existing in many countries) is often severely affected by the fact that workers are threatened with a lack of employment if they insist on a minimum wage. Another problem is the failure to adjust wages to the real cost of an adequate standard of living.
Right to a limited workday
Convention No. 1 of the ILO limits the work day in industry,8 while Convention No. 30 does so for commerce and offices.9 Although only fifty-two countries have ratified Convention No. 1, and only thirty have ratified Convention No. 30, this is widely acknowledged to be an important right.
In some countries greater limitations on the workday have been adopted. In others, in contrast, there is more open-ended authorization for supplementary work or overtime, in practice restricting the scope of the right to a limited workday.
Right to form trade unions and join them
This right is recognized and guaranteed not only in the main human rights instruments but also in ILO Conventions Nos. 87 and 98.10 The latter are the most important elaboration of the mandate in the preamble to the ILO Constitution relating to the freedom of association. Convention No. 87 has 121 ratifications, while Convention No. 98 has 137. Despite this large number of ratifications, workers in many countries still face severe problems in exercising these rights. Difficulties range from violence against trade unionists and union leaders, to provisions that allow for the involvement of the administrative authorities in the work of the trade union, to provisions that restrict the enjoyment of this right to certain categories of workers.
The establishment of free trade zones (FTZs), while providing jobs that might not otherwise be available, has also had a significant impact on the rights of those specific sectors of workers-in large part because worker protections are usually eased and trade union activities restricted in FTZs.
Right to strike
It is the strength of workers struggles that has made the right to strike truly effective. Except for article 8 of the ICESCR, the international instruments do not set forth the right to strike. The ILO conventions have been silent with respect to this right, and it has been up to the oversight organs to develop it and determine its scope.
Despite the widespread recognition of the exercise of this right, in some countries strikes are prohibited in a very wide array of services, including activities that are not, strictly speaking, essential services. In others, criminal or disciplinary sanctions may be imposed for participating in strikes. In addition, in some countries legislation gives public authorities broad discretion to prohibit strikes in certain services or to declare them illegal because of their impact on the national economy.
Right to equal pay for work of equal value
Despite ILO Convention No. 10011 and the progress made in advancing the principle of nondiscrimination, many obstacles remain to the full enjoyment of this right in many countries. Even though national legislation in most countries enshrines the principle of equal pay for work of equal value, discrimination in pay persists in practice.
Discrimination in pay affects not only women. It may also occur for any of the criteria prohibited by ILO Convention No. 111,12 by article 2(2) of ICESCR, and article 2(1) of the ICCPR.
In addition to minorities and woman who face discrimination, others who face discrimination are those who hold certain political opinions or religious convictions, those of certain social origins, and trade union activists. The same person may suffer discrimination for several reasons, and discriminatory acts may not be expressed openly, making it difficult to show evidence regarding discrimination. The same can be said of legislation that allows the employer to inquire into prospective employees political, religious or cultural views, even in the case of issues not related to the employment functions in question.
Right to trade union autonomy
Trade union autonomy is a fundamental element of the freedom of association. This presupposes not only that the state and employers refrain from engaging in acts that interfere with trade unions, but also that trade unions be able to adopt bylaws and a program of action, and have the ability to join together in trade union federations nationally and internationally. These rights, which are expressions of the right to trade union autonomy, often go unrecognized in the law and in practice in many countries.
In some states, authorities still have the power to dissolve unions. In others, authorities have been vested with the power to bring an action before the courts seeking dissolution of workers organizations, or to impose administrative sanctions on trade unions, which may go as far as controlling the organizations economic resources. In some states, there is a prohibition on forming more than one trade union per company or institution. Other states have adopted detailed rules governing the election of union officials, even setting forth requirements for becoming union representatives, thereby depriving the organizations of the possibility of regulating these matters in their bylaws.
Enforceability of labor rights and the freedom of association
The ILO has developed extensive doctrine on the scope and contents of the rights regulated by its conventions. National legal systems have assimilated these principles. States have established judicial and administrative systems for dealing with labor-related rights.
Human rights activists and labor rights defenders should make regular use not only of the national courts, but also of the mechanisms of the international community. In particular, they should
support the trade unions of the respective country to make comments on the reports that the governments must submit periodically to the International Labour Office;
include comments and information on labor-related rights in the alternative reports submitted to the CESCR; and
establish mechanisms with the trade unions to advise them on the documentation and submission of claims to domestic courts, the ILO and other international oversight organs.
The need for cheap labor as fuel for the economic expansion of rich countries, and the problems of unemployment and poverty in poorer countries, have contributed to increased migration of people. Most developing countries use export of labor for securing badly needed foreign exchange.
Migrant workers are subject to exploitation and denial of human rights. Migrant workers do not generally enjoy the same political or ESC rights as citizens of host countries do. Legal protection is generally unavailable. Undocumented workers are particularly vulnerable, since they have neither legal protection nor the possibility of seeking help because they fear imprisonment and/or deportation by the host country authorities.
Migrant workers usually work in dirty, difficult and dangerous jobs. Women migrant workers are even more vulnerable than men. Women work as housemaids, entertainers, bartenders and workers in the sex industry. They often face the problem of sexual harassment, including rape. Their vulnerability is heightened by the fact that they are often drawn into and used for criminal activities such as drug trafficking, prostitution and smuggling of prohibited articles. Job offers in foreign countries are sometimes used as a pretext for tricking poor women and thereby trafficking them.
The ILO was the first to enact standards for the protection of the rights of migrant workers. The ILO's two major conventions on the subject are the Migration for Employment Convention (Revised No. 97) of 1949 and the Migrant Workers (Supplementary Provisions) Convention (No. 143) of 1975. Convention No. 97 requires that ratifying states treat legal migrant workers on the same footing as their own nationals. Convention No. 143 provides that states must respect the basic human rights of migrant workers. They should take steps to prevent clandestine migration and stop manpower trafficking activities.
The UN has been concerned since the 1970s with the problem of migrant workers. In 1978, the first World Conference to Combat Racism and Racial Discrimination recommended that the UN draft a convention on the protection of rights of migrant workers. In the same year, the General Assembly made a similar recommendation. Subsequently, in 1980, a working group open to all member states was established by the General Assembly to draft a convention on the subject. In 1990, the working group completed the task of drafting an International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The convention is yet to become operational.
Definition of migrant workers under the convention
Article 2 of the UN convention defines migrant worker as "a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national."
The convention is path-breaking in including under its scope previously neglected categories of migrant workers. Migrant workers identified by the convention are:
Rights enshrined in the convention
Articles 8 to 32 under part III of the convention deal with the human rights of migrant workers and their families. The rights include: the right to life, prohibition against torture, prohibition against slavery or servitude, freedom of thought, conscience and religion, freedom to manifest ones religion or belief, freedom of expression, prohibition against arbitrary arrest, unlawful interference with his or her privacy, prohibition against arbitrary deprivation of property, protection against violence, right to fair trial, prohibition against retroactive application of criminal laws, prohibition against confiscation or destruction of identity documents, prohibition against collective expulsion, right to take part in trade union activities, same treatment as that of nationals with regard to social security, right to receive medical care, right of a child of a migrant worker to name and nationality, right of a child of a migrant worker for access to education, respect for cultural identity of migrant workers and the right to transfer their belongings and savings upon termination of their employment.
Articles 36 to 56 under part IV of the convention deal with other rights of migrant workers and members of their families. Articles 57 to 64 under part V deal with particular categories of migrant workers and their families. These provisions provide necessary modifications for provisions under part III and part IV of the convention.
Monitoring the implementation of the convention
Article 72 of the convention provides for the establishment of a committee to review the implementation of the convention by state parties. Initially, after ratification by twenty states, the committee will consist of ten independent members. It will be increased to fourteen members when forty-one ratifications have been made.
All states parties to the convention are obligated to report to the committee within a year of entry into force of the convention. Afterwards, they must submit a report every five years. The report should deal with the legislative, judicial, administrative and other measures they have taken to protect the rights enshrined in the convention.
The convention also contains provision for the committee to receive communications (complaints) from one state party against another and complaints from individuals of a state claiming violation of rights enshrined under the convention. However, the committee can receive complaints against a state only when that state party accepts the jurisdiction of the committee to receive such complaints.
The Dinesh Bidi Cooperative
"The Dinesh Bidi (bidi is a cigarette rolled in hand) Cooperative started in 1968, in the state of Kerala, India, when the private commercial entrepreneurs left the district in response to the 1966 Bidi and Cigar Workers' Act. The Act gave bidi homeworkers employment rights on a par with factory workers. The cost of hiring homeworkers rose, and private employers left the business, heralding unemployment for 12,000 home-based workers. The state government responded to that situation by organising workers in a series of producers' cooperatives and giving loans to workers to buy shares and raw materials. The cooperatives started with 3,000 members in 1968; by 1983, the membership had grown to 30,000. In the cooperatives, workers received fair wages maternity leave, group insurance and retirement benefits. All in all, they proved an immense success and were viewed as worthy of replication in several parts of India.
"The replication, initiated by governments,
however, proved far more difficult. Besides
the local characteristics of the workers
and the market, the secret of success
of the Dinesh bidi cooperatives lay in
the strong trade union movement of Kerala.
The strict monitoring of the implementation
of the Bidi and Cigar Workers' Act by
unions encouraged the private manufacturers
to desert the area, leaving the market
entirely to the workers. In the non-unionised
regions, in contrast, the private sector
still functioned, relying on clandestine
labour; and thereby undercutting the cooperatives
who paid fair wages and the taxes."
5. Kathyayini Chamraj, "A Campaign against Oppression," The Hindu, 19 October 1997.
6. International Labour Organization, Convention concerning Forced or Compulsory Labour (ILO No. 29), 39 UNTS 55, entered into force 1 May 1932; International Labour Organization, Abolition of Forced Labour Convention (ILO No. 105), 320 UNTS 291, entered into force 17 Jan. 1959.
7. See International Labour Organization, Minimum Wage Fixing Convention (ILO No. 1131), entered into force 29 April 1972; International Labour Organization, Minimum Wage Fixing Machinery (Agriculture) Convention (ILO No. 99), entered into force 23 Aug. 1953.
8. International Labour Organization, Hours of Work (Industry) Convention (ILO No. 1), entered into force 13 June 1921.
9. International Labour Organization, Hours of Work (Commerce and Offices) Convention (ILO No. 30), entered into force 29 Aug. 1933.
10. International Labour Organization, Freedom of Association and Protection of the Rights to Organise Convention (ILO No. 87), 68 UNTS 17, entered into force 4 July 1950; International Labour Organization, Right to Organize and Collective Bargaining Convention (ILO No. 98), 96 UNTS 257, entered into force 18 July 1951.
11. International Labour Organization, Equal Remuneration Convention (ILO No. 100), 165 UNTS 303, entered into force 23 May 1953.
12. International Labour Organization, Discrimination (Employment and Occupation) Convention (ILO No. 111), 362 UNTS 31, entered into force 25 June 1958.
13. International Labour Organization, Worst Forms of Child Labour Convention (ILO No. 190) adopted 17 June 1999 (not yet in force).
14. Sheila Rowbotham and Swasti Mitter, Dignity and Daily Bread: New forms of economic organising among poor women in the Third World and the First (New York: Routledge, 1994), 14.
15. International Labour Organization, Conditions of Work Programme, Conditions of Work: Homework (Geneva, 1990).
16. Swasti Mitter, "On Organising Women in Casualised Work: A global overview," in Rowbotham and Mitter, op.cit., 32.