Article 23 (1) of UDHR
“Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.”
Article 6 of ICESCR
“1. The States 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 of ICESCR
“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 the present 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 limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.”
The right to work
The right to work primarily protects individuals against exclusion from the economy, and also the unemployed against social isolation.
Free choice of work and the prohibition of forced labour are provided for in Article 6 (1) of the ICESCR. According to the UN Committee on Economic, Social and Cultural Rights, in its general comment No. 18 (2005), “The right to work is essential for realizing other human rights and forms an inseparable and inherent part of human dignity. Every individual has the right to be able to work, allowing him/her to live in dignity. The right to work contributes at the same time to the survival of the individual and to that of his/her family, and insofar as work is freely chosen or accepted, to his/
her development and recognition within the community.”
Box 83 Work-related duties of States under Article 1 of the European Social Charter
• To accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment.
• To protect effectively the right of the worker to earn his or her living in an occupation chosen freely.
• To establish and maintain free employment services for all workers.
• To provide or promote appropriate vocational guidance, training and rehabilitation.
When legislation is being drafted on the right to work and its implementation through national employment policies, particular attention should be paid to prohibiting discrimination with regard to access to work. Legislation should also aim to facilitate the entry of specific groups – such as the elderly, young people and persons with disabilities, and particularly women among those groups – into labour markets.
Women experience systemic barriers in almost every aspect of work, ranging from whether they have paid work at all, to the type of work they obtain or are excluded from, the availability of support such as childcare, the level of their pay, their working conditions, their access to higher-paying “male” occupations, the insecurity of their jobs, the absence of pension entitlements or benefits, and the lack of time, resources or information necessary to enforce their rights. Measures should also be taken by States to reduce the number of workers in the informal economy and to extend the protection provided by labour legislation to all areas of the economy, including the domestic and agricultural sectors.
The main goal of employment policies should be the attainment of full employment as quickly as possible, in accordance with a nation’s resources. Over and above social benefits, those policies should address the concerns of the long-term unemployed and low-income earners through the development of public work programmes.
The State should ensure that generally accessible and free or reasonably priced technical and vocational guidance and training programmes are established and that free employment services for all workers are put in place.
Rights at work
Article 7 of the ICESCR guarantees the right of every person to just and favourable conditions of work. These conditions include:
• remuneration that provides all workers, as a minimum, with:
– fair wages and equal payment for work of equal value, without any discrimination (particularly against women);
– a decent living for the workers and their families;
• safe and healthy working conditions;
• equal opportunities for promotion on the basis of seniority and competence;
• reasonable working hours, rest, leisure, periodic paid holidays and remunerated public holidays.
Therefore, in line with the recommendations made by the UN Committee on Economic, Social and Cultural Rights in general comment No. 18 (2005), and by
the UN Special Rapporteur on Human Rights and Extreme Poverty, parliamentarians should ensure that the following key elements are stipulated in legislation and implemented through relevant strategies, policies and programmes:
• Adopt rigorous labour regulations and ensure their enforcement through a labour inspectorate with adequate capacity and resources to guarantee enjoyment of the right to decent working conditions:
• Ensure that all workers are paid a wage sufficient to enable them and their family to have access to an adequate standard of living.
• Extend legal standards regarding just and favourable conditions of work to the informal economy, and collect disaggregated data assessing the dimensions of informal work.
• Take positive measures to ensure the elimination of all forms of forced and bonded labour and harmful and hazardous forms of child labour, in addition to measures that ensure the social and economic reintegration of those affected and avoid reoccurrence:
• Ensure that caregivers are adequately protected and supported by social programmes and services, including access to affordable childcare.
• Put in place specific measures to expand opportunities for employment in the formal labour market, including through vocational guidance and training and skills development.
• Eliminate discrimination in access to employment and training, and ensure that training programmes are accessible to those most vulnerable to unemployment, including women, migrants and persons with disabilities, and tailored to their needs.
• Respect, promote and realize freedom of association so that all workers are effectively represented in social and political dialogue about labour reforms.
Box 84 Labour rights before the Inter-American Court of Human Rights (Baena, Ricardo et al. (270 workers) v. Panama)
In February 2001, the Inter-American Court of Human Rights ruled on an application concerning the arbitrary dismissal of 270 public officials and union leaders. The persons concerned organized a demonstration after the government had rejected a petition concerning labour rights and announced a strike the following day. The day of the demonstration, 4 December 1990, military officers escaped from a prison and occupied the National Police headquarters for several hours. The trade union cancelled the strike. The Government insisted that there had been a connection between the two events and dismissed the persons by means of a simple letter, invoking a law that was adopted after the facts, and which replaced the applicable procedure before labour courts with an administrative one. The Court concluded that the State of Panama had violated the rights of the workers to freedom of association, judicial guarantees and judicial protection, as well as the principles of legality and non-retroactivity.
The Court ruled further that the due process guarantees set forth in Article 8 (2)
of the ACHR must be observed in administrative proceedings as well as in any other proceedings leading to a decision affecting the rights of persons, including labour rights. Consequently, the Court ordered the State to reassign the workers to their previous or equivalent positions, pay them the missed salaries and pay each of them US$ 3,000 for moral damages, in addition to the legal cost.8