Module 10 (continued)

The Right to Work and Rights at Work

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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:

• the right to dignified working conditions;
• the right to work that is freely chosen or accepted;
• the right to adequate remuneration;
• the right to a limited workday and remunerated periods of rest;
• the right to equal pay for work of equal value;
• the right to equal treatment; and
• the right to safe and hygienic working conditions.

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.

Nondiscrimination

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.

Migrant Workers

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:

• frontier workers, who reside in a neighboring state to which they return daily or at least once a week;
• seasonal workers;
• seafarers employed on vessels registered in a state other than their own;
• workers on offshore installations which are under the jurisdiction of a state other than their own;
• migrants employed for a specific project; and
• self-employed workers.

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 one’s 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.

Child Labor

Another group that is vulnerable, exploited and denied rights at work are child workers working in difficult or hazardous conditions.  These young workers, in addition to facing immediate health and other hazards, suffer the potential for long-term physical, intellectual and emotional dis­tress.  Working children potentially face an adulthood of illiteracy and un­em­ployment.  Despite a range of prob­lems, child labor is widely practiced.  

Article 32 of the Convention on the Rights of the Child recognizes that a child has the right to be protected from work that is hazardous, that interferes with the child’s education, or is harmful to the child’s health, or physical, mental, spiritual, moral or social development.  It requests states to provide for rules related to the mini­mum age of employment and to regulate hours of work and conditions of employment.

The ILO has adopted several conven­tions concerning child labor.  The most recent and far-reaching is Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour.  Adopted in 1999, the convention has yet to come into force.  It obligates states that ratify it to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labor as a matter of ur­gency.  Under article 3, the worst forms of child labor comprise:

(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict;

(b)  the use, procuring or offering of a child for prostitution, for the production of pornogra­phy or for pornographic performances; 

(c) the use, procuring or offering of a child for illicit activities, in particular for the produc­tion and trafficking of drugs; and

(d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

Article 3(d) includes among other forms of work:

• work which exposes children to physical, psychological or sexual abuse;
• work underground, underwater, at dangerous heights or in confined spaces;
• work in unhealthy environments exposing children to hazardous substances, tempera­tures, noise levels, or vibrations damaging their health; and
• work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer.13

Changing Patterns of Work

During the 1980s new forms of the organization of production and new global patterns of investment have emerged.  These have changed the pattern and meaning of work.  In the last two decades, the majority of new jobs in the developed countries have been of a "casualized" nature, which is a shift from regulated and unionized work.  Most governments of the Or­ganization of Economic Cooperation and Development (OECD) have pushed for deregula­tion as well as privatization of the social means of production.  This has led to increased reli­ance on subcontractors by private and public sector corporations.  Workers in the subcon­tracted units enjoy far fewer legal rights and benefits.

Does the introduction of such flexibility mean an alternative to bureaucratic planning and the possibility of greater democratic control over work and consumption?  Or is it simply a device for extracting more labor from a low-paid, vulnerable workforce? There is also considerable disagreement about even how to define these shifts in in­vestment, production, technology, distribution and the location of industry.  Is there a decisive move away from "Fordist" mass production to a new economic order?  Are we in the era of  "post-Fordism" or "flexible specialisation", in which specialised products utilising new technology are to be made by decentralised workers?  Or are we in fact seeing a more confused pattern, a new combination of employment struc­tures in which employers favour flexibility or regulation depending on the nature of what is being produced?  In the midst of an unresolved debate it is clear that a break can be observed in the pattern of organisation of work in many of the richer countries and that similar trends are emerging in the newly industrialised world.14

Organizations of Invisible Workers

Workers in the unregulated sectors are called invisible workers since they work in isolation in scattered sweat­shops and home-based units.  They do not benefit from labor laws.  With­out a collective identity, they cannot receive much pro­tection, even if laws are en­acted in their favor.  Some countries have enacted laws related to homeworkers, and in 1990 the ILO pub­lished a conditions of work digest on homework.15 It provides in-formation on relevant, varied legislation enacted in various coun­tries.  In Peru, for example, the wage rate for homeworkers cannot be less than that paid for the same work in a factory or workshop.  In the Dominican Republic, homeworkers’ wage is based on the rates payable for the task.  In India, the Insurance Act is not appli­cable to homeworkers.  Laws for protection of home­workers need to be harmonized.  However, such laws will not be im­plemented until workers organize to ensure the enforcement of laws.  Normally, the organization of "casualized" labor or homeworkers takes the form of cooperatives or self-help organizations.

Authors: The authors of this module are Rolf Künnemann on the right to work, and Alberto Gómez on rights at work (labor rights).

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NOTES

5. Kathyayini Chamraj, "A Campaign against Oppression," The Hindu, 19 October 1997.