University of Minnesota




Authorities and Precedents in International and Domestic Law for the Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. OEA/Ser.L/V/II.110, Doc. 22 (2001).


 

Article XIX. Workers rights

1. Indigenous peoples shall have the right to full enjoyment of the rights and guarantees recognized under international labor law and domestic labor law; they shall also have the right to special measures to correct, redress and prevent the discrimination to which they have historically been subject.

2. To the extent that they are not effectively protected by laws applicable to workers in general, the states shall take such special measures as may be necessary to:

a. effectively protect the workers and employees who are members of indigenous communities in respect of fair and equal hiring and terms of employment;

b. to improve the labor inspection and enforcement service in regions, companies or paid activities involving indigenous workers or employees;

c. ensure that indigenous workers:

i) enjoy equal opportunity and treatment as regards all conditions of employment, job promotion and advancement; and other conditions as stipulated under international law;

ii) enjoy the right to association and freedom for all lawful trade union activities, and the right to conclude collective agreements with employers or employers' organizations;

iii) are not subjected to racial, sexual or other forms of harassment;

iv) are not subjected to coercive hiring practices, including servitude for debts or any other form of servitude, even if they have their origin in law, custom or a personal or collective arrangement, which shall be deemed absolutely null and void in each instance;

v) are not subjected to working conditions that endanger their health and safety;

vi) receive special protection when they serve as seasonal, casual or migrant workers and also when they are hired by labor contractors in order that they benefit from national legislation and practice which must itself be in accordance with established international human rights standards in respect of this type of workers, and,

vii) as well as their employers are made fully aware of the rights of indigenous workers, under such national legislation and international standards, and of the recources available to them in order to protect those rights.

I. INTERNATIONAL AUTHORITIES AND PRECEDENTS

1. Draft United Nations Declaration on the Rights of Indigenous Peoples (UN 1994)

Article 18:

Indigenous peoples have the right to enjoy fully all rights established under international labor law and national labor legislation.

Indigenous individuals have the right not to be subjected to any discriminatory conditions of labor, employment or salary.

2. C 169, Convention on Indigenous and Tribal People (ILO Convention 1989)

Article 20:

1. "Governments shall, within the framework of national laws and regulations, and in co-operation with the peoples concerned, adopt special measures to ensure the effective protection with regard to recruitment and conditions of employment of workers belonging to these peoples, to the extent that they are not effectively protected by laws applicable to workers in general.

2. Governments shall do everything possible to prevent any discrimination between workers belonging to the peoples concerned and other workers, in particular as regards:

(a) admission to employment, including skilled employment, as well as measures for promotion and advancement;

(b) equal remuneration for work of equal value;

(c) medical and social assistance, occupational safety and health all social security benefits and any other occupationally related benefits, and housing;

(d) the right of association and freedom for all lawful trade union activities, and the right to conclude collective agreements with employers or employers' organizations.

3. The measures taken shall include measures to ensure:

(a) that workers belonging to the peoples concerned, including seasonal, casual and migrant workers in agricultural and other employment, as well as those employed by labor contractors, enjoy the protection afforded by national law and practice to other such workers in the same sectors, and that they are fully informed of their rights under labor legislation and of the means of redress available to them;

(b) that workers belonging to these peoples are not subjected to working conditions hazardous to their health, in particular through exposure to pesticides or other toxic substances;

(c) hat workers belonging to these peoples are not subjected to coercive recruitment systems, including bonded labor and other forms of debt servitude;

(d) that workers belonging to these peoples enjoy equal opportunities and equal treatment in employment for men and women and protection from sexual harassment.

4. Particular attention shall be paid to the establishment of adequate labor inspection services in areas where workers belonging to the peoples concerned undertake wage employment, in order to ensure compliance with the provisions of this Part of this Convention."

3. American Convention on Human Rights (OAS 1969)

Article 16(1): “Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.”

4. American Declaration on the Rights and Duties of Man (UN 1948)

Article XIV: “Every person has the right to work.” “Every person who works has the right to receive such remuneration as will, in proportion to this capacity and skill, assure him a standard of living suitable for himself and for his family.”

Article XXII: “Every person has the right to associate with others to promote, exercise, and protect the legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature.”

5. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social And Cultural Rights (OAS 1988)

Article 6: Right to Work

1. Everyone has the right to work, which includes the opportunity to secure the means for living a dignified and decent existence by performing a freely elected or accepted lawful activity.

2. he State Parties undertake to adopt measures that will make the right to work fully effective, especially with regard to the achievement of full employment, vocational guidance, and the development of technical and vocational training projects, in particular those directed to the disabled. The States Parties also undertake to implement and strengthen programs that help to ensure suitable family care, so that women may enjoy a real opportunity to exercise the right to work.

Article 7: Just, Equitable, and Satisfactory Conditions of Work

"The States Parties to this Protocol recognize that the right to work to which the foregoing article refers presupposes that everyone shall enjoy that right under just, equitable, and satisfactory conditions, which the States Parties undertake to guarantee in their internal legislation, particularly with respect to:

a. emuneration which guarantees, as a minimum, to all workers dignified and decent living conditions for them and their families and fair and equal wages for equal work, without distinction;

b. he right of every worker to follow his vocation and to devote himself to the activity that best fulfills his expectations and to change employment in accordance with the pertinent national regulations;

c. he right of every worker to promotion or upward mobility in his employment, for which purpose account shall be taken of his qualifications, competence, integrity and seniority;

d. tability of employment, subject to the nature of each industry and occupation and the causes for just separation. In cases of unjustified dismissal, the worker shall have the right to indemnity or to reinstatement on the job or any other benefits provided by domestic legislation;

e. afety and hygiene at work;

f. he prohibition of night work or unhealthy or dangerous working conditions and, in general, of all work which jeopardizes health, safety, or morals, for persons under 18 years of age. As regards minors under the age of 16, the work day shall be subordinated to the provisions regarding compulsory education and in no case shall work constitute an impediment to school attendance or a limitation on benefiting from education received;

g. reasonable limitation of working hours, both daily and weekly. The days shall be shorter in the case of dangerous or unhealthy work or of night work;

h. est, leisure and paid vacations as well as remuneration for national holidays."

Article 8: Trade Union Rights

1. The States Parties shall ensure:

a. he right of workers to organize trade unions and to join the union of their choice for the purpose of protecting and promoting their interests. As an extension of that right, the States Parties shall permit trade unions to establish national federations or confederations, or to affiliate with those that already exist, as well as to form international trade union organizations and to affiliate with that of their choice. The States Parties shall also permit trade unions, federations and confederations to function freely;

b. The right to strike.

2. The exercise of the rights set forth above may be subject only to restrictions established by law, provided that such restrictions are characteristic of a democratic society and necessary for safeguarding public order or for protecting public health or morals or the rights and freedoms of others. Members of the armed forces and the police and of other essential public services shall be subject to limitations and restrictions established by law.

3. No one may be compelled to belong to a trade union."

Article 9: Right to Social Security

1. Everyone shall have the right to social security protecting him from the consequences of old age and of disability which prevents him, physically or mentally, from securing the means for a dignified and decent existence. In the event of the death of a beneficiary, social security benefits shall be applied to his dependents.

2. In the case of persons who are employed, the right to social security shall cover at least medical care and an allowance or retirement benefit in the case of work accidents or occupational disease and, in the case of women, paid maternity leave before and after childbirth.

6. International Covenant on Civil and Political Rights (UN 1966)

Article 22(1): “Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests."

7. International Covenant on Economic, Social and Cultural Rights (UN 1966)

Article 6:

1. The State Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual."

Article 7: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular:

(a) remuneration which provides all workers, as a minimum, with:

(i) fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) a decent living for themselves and their families in accordance with the provisions of this Covenant;

(b) safe and healthy working conditions;

(c) equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) rest, leisure and reasonable limitations of working hours and periodic holidays with pay, as well as remuneration for public holidays."

Article 8: “The State Parties to the present Covenant undertake to ensure:

(a) the right of everyone to form trade unions and join the trade union of his choice.

8. International Convention on the Elimination of all Forms of Racial Discrimination (UN 1965)

Article 5: States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone...(e)(i) to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration...(ii) to form and join trade unions.

9. Universal Declaration of Human Rights (UN 1948)

Article 23: “1. Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work. 3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family and existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and to join trade unions for the protection of his interest.”

Article 24: “Everyone has the right to rest and leisure, including reasonable limitations of working hours and periodic holidays with pay.”

10. African Charter on Human and Peoples’ Rights (Banjul Charter 1981)

Article 15: “Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.”

11. European Convention for the Protection of Human Rights and Fundamental Freedoms (ROME 1950)

Article 11(1): “Everyone has the right to freedom of peaceful assembly and freedom of association with others, including the right to form and join trade unions for the protection of his interests.”

12. Copenhagen Declaration on Social Development and Programme of Action of the World Summit for Social Development (Copenhagen, Denmark, March 6-12, 1995)

Annex II: Programme of Action of the World Summit for Social Development Content.

Chapter III. Expansion of Productive Employment and Reduction of Unemployment

-Para. D(61): The full participation of indigenous people in the labour market and their equal access to employment opportunities requires developing comprehensive employment, education and training programmes that take account of the particular needs of indigenous people."

13. European Social Charter (Strasbourg, 3.V.1996)

The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realized:

1. Everyone shall have the opportunity to earn his living in an occupation freely entered upon.

2. workers have the right to just conditions of work.

3. All workers have the right to safe and healthy working conditions.

4. All workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their families.

5. All workers and employers have the right to freedom of association in national or international organizations for the protection of their economic and social interests.

6. All workers and employers have the right to bargain collectively.

7. Children and young persons have the right to a special protection against the physical and moral hazards to which they are exposed.

8. Employed women, in case of maternity, have the right to a special protection.

9. Everyone has the right to appropriate facilities for vocational guidance with a view to helping him choose an occupation suited to his personal aptitude and interests.

10. Everyone has the right to appropriate facilities for vocational training.

11. Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable.

12. All workers and their dependents have the right to social security.

13. Anyone without adequate resources has the right to social and medical assistance.

14. Everyone has the right to benefit from social welfare services.

15. Disabled persons have the right to independence, social integration and participation in the life of the community.

16. The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development.

17. Children and young persons have the right to appropriate social, legal and economic protection.

18. The nationals of any one of the Parties have the right to engage in any gainful occupation in the territory of any one of the others on a footing of equality with the nationals of the latter, subject to restrictions based on cogent economic or social reasons.

19. Migrant workers who are nationals of a Party and their families have the right to protection and assistance in the territory of any other Party.

20. All workers have the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex.

21. Workers have the right to be informed and to be consulted within the undertaking.

22. Workers have the right to take part in the determination and improvement of the working conditions and working environment in the undertaking.

23. Every elderly person has the right to social protection.

24. All workers have the right to protection in cases of termination of employment.

25. All workers have the right to protection of their claims in the event of the insolvency of their employer.

26. All workers have the right to dignity at work.

27. All persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities.

28. Workers’ representatives in undertakings have the right to protection against acts prejudicial to them and should be afforded appropriate facilities to carry out their functions.

29. All workers have the right to be informed and consulted in collective

redundancy procedures.

30. Everyone has the right to protection against poverty and social exclusion.

31. Everyone has the right to housing."

II. DOMESTIC AUTHORITIES AND PRECEDENTS

14. Argentina

Constitución de la Nación Argentina

Artículo 14: "Todos los habitantes de la Nación gozan de los siguientes derechos conforme a las leyes que reglamenten su ejercicio, a saber: de trabajar y ejercer toda industria licita; de navegar y comerciar; de peticionar a las autoridades; de entrar, permanecer, transitar y salir del territorio argentino; de publicar sus ideas por la prensa sin censura previa; de usar y disponer de su propiedad; de asociarse con fines útiles; de profesar libremente su culto; de enseñar y aprender."

15. Canada

Royal Commission on Aboriginal Peoples, 4.6.18

The Royal Commission recommends that:

Government employment policies accommodate the demands of traditional economic activities by increasing opportunities for job sharing, periodic leave and shift work.

2.5.36

With respect to employment development, the Commission recommends that Federal and provincial governments fund a major 10-year initiative for employment development and training that is aimed at preparing Aboriginal people for much greater participation in emerging employment opportunities; sponsored by Aboriginal nations or regionally based Aboriginal institutions; developed in collaboration with public and private sector employers and educational and training institutions; and mandatory for public sector employers.

23.2.1

The objective of this Article is to increase Inuit participation in government employment in the Nunavut Settlement Area to a representative level. It is recognized that the achievement of this objective will require initiatives by Inuit and by Government.

16. Panama

Constitución Política de la República de Panamá

Artículo 63: A trabajo igual en idénticas condiciones, corresponde siempre igual salario o sueldo, cualesquiera que sean las personas que lo realicen, sin distinción de sexo, nacionalidad, edad, raza, clase social, ideas políticas o religiosas.

17. Paraguay

Constitución Nacional de Paraguay

Artículo 88: De la no discriminación. No se admitirá discriminación alguna entre los trabajadores por motivos étnicos, de sexo, edad, religión, condición social y preferencias políticas o sindicales.

El trabajo de las personas con limitaciones o incapacidades físicas o mentales será especialmente amparado.

18. Peru

Ley 22.175 Ley de Comunidades Nativas y de Desarrollo de las Regiones de Selva y Ceja de Selva

Artículo 23: Los funcionarios y empleados públicos, quedan obligados, bajo responsabilidad civil y penal, a dar curso inmediato a las denuncias presentadas por comuneros nativos referentes al incumplimiento de la legislación laboral, irregularidades en la tramitación de la documentación de identidad personal, ocupación o explotación ilícita de recursos naturales pertenecientes a la comunidad u otros hechos o acciones que le perjudique.

19. Guatemala

Constitución Política de la República de Guatemala

Artículo 69: "Traslación de trabajadores y su protección. Las actividades laborales que impliquen traslación de trabajadores fuera de sus comunidades, serán objeto de protección y legislación que aseguren las condiciones adecuadas de salud, seguridad y previsión social que impidan el pago de salarios no ajustados a la ley, la desintegración de esas comunidades y en general todo trato discriminatorio".

20. St. Vincent and St. Grenadines

Constitution of St. Vincent and St. Grenadines (1979)

Article 11(1): "Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of assembly and association, that is to say, his tight to assemble freely and associate with other persons and in particular to form or belongs to trade unions or other associations for the protection of his interests."

21. Suriname

Constitution of Suriname

Article 28: "All employees have, independent of age, sex, race, nationality, religion or political opinions, the right to:

a. Remuneration for their work corresponding to quantity, type, quality and experience on the basis of equal pay for equal work;

b. The performance of their task under humane conditions, in order to enable self-development;

c. Safe and healthy working condition;

d. Sufficient rest and recreation."

Article 30: "Employees are free to establish trade unions to foster their rights and interests. For the exercise of the rights of trade unions the following freedoms are guaranteed indiscriminately:

a. Freedom to join or not to join a trade union;

b. The right to participate in trade union activities.

Article 31(3): "Trade unions shall have the right to conclude collective labor agreements."

22. Venezuela

Constitución Política de Venezuela

Artículo 123: “Los pueblos indígenas tienen derecho a mantener y promover sus propias prácticas económicas basadas en la reciprocidad, la solidaridad y el intercambio; sus actividades productivas tradicionales, su participación en la economía nacional y a definir sus prioridades. Los pueblos indígenas tienen derecho a servicios de formación profesional y a participar en la elaboración, ejecución y gestión de programas específicos de capacitación, servicios de asistencia técnica y financiera que fortalezcan sus actividades económicas en el marco del desarrollo local sustentable. El Estado garantizará a los trabajadores y trabajadoras pertenecientes a los pueblos indígenas el goce de los derechos que confiere la legislación laboral”.



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