The Right to Work &
The Right to an Adequate Standard of Living
Summary of discussion held on August 6th 2013:
Permit me to first thank Noreen Lawlor for persevering with delayed trains to travel to us from Beckenham, the other side of Bromley, and acknowledge the apology from Pauline Townsend, being too unwell to attend.
In our publicity for this evening we advertised it as ‘Discussing Articles 23 & 25 of the Universal Declaration of Human Rights: The Right to Work & The Right to an Adequate Standard of Living’.
However, we had the benefit of Ingrid van Dooren’s knowledge of Human Rights Law to be directed to Article 6 of the International Covenant on Economic, Social and Cultural Rights, a treaty ratified by the UK, which states in the first paragraph of Article 6: “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.”
We took time discussing the very real experiences of those out of work or in work without the prospect of earning a decent standard of living. There was reference to the attitudes towards people on benefits and also the feelings of those who have found it necessary to make a claim. In this latter situation there were numerous stories of not claiming despite entitlement as a matter of dignity.
There were brief diversions into topics of Austerity and Immigration but the general consensus was that these were topics for another day and their exclusion from the current debate did not diminish our perceptions.
One particular issue that served as a catalyst was that of ‘Zero hours contracts’. We heard reports that there are more than 1 million British workers are employed on these contracts. One newspaper article had the headline, ‘Why stop at zero hours? Why not revive child labour?’
It was generally felt that the current situation in the UK was falling short of terms in the International Covenant on Economic, Social and Cultural Rights. We also felt moved that we should do something about it. With that in mind, Ingrid van Dooren and I shall draft an open letter to relevant MP’s expressing our concern. It was also proposed that we shall have this available as a street and an online petition.
In addition it was noted that 38 degrees, the UK online advocacy community, are directing efforts at those companies that employ large numbers on zero hours contracts.
Notes shared before the meeting:
It is hoped to discuss these Articles from the Universal Declaration of Human Rights in relation to what can be done about the difficulties of our time.
- (1) Everyone has the right to work, to free choice of employment, to just and favourable 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 an 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 interests.
- (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
- (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Ingrid van Dooren has forfarded the summary of her Doctorate dissertation on the Right to Work added here after some salient highlights.
…a division should be made into obligations “to respect”,“to protect”, “to redress” and to “fulfil” for all human rights, including the right to work.
…respect for the freedom of individuals to try and be self-supporting is to be guaranteed at all times.
Under this treaty, states may restrict entry to the territory, but it is not allowed to restrict access to the labour market for those foreigners who are actually on the territory of the state, regardless of whether or not they are already lawfully resident.
Employers should convince themselves that non-discriminationis in their own interest. It is the only guarantee that the best qualified candidate will be appointed for a certain job. Also they cannot afford to miss a whole group of potential workers simply because they belong to a minority.
From: “Recht op arbeid vrij van rassendiscriminatie” (“Right to work free from racial discrimination”), M.I. van Dooren, Leiden, The Netherlands, 1997
The right to work free from racial discrimination bears in it several elements that bring us to the core of modern human rights law. Both the concern about high unemployment levels and the continuing fight against discrimination on the ground of race are involved. Various human rights treaties cover one or more aspects of the subject under consideration. The present book deals with the question to what extent the Netherlands have implemented the relevant treaty provisions.
The first chapter explains the concepts of discrimination, race, and the right to work. The concept of discrimination contains several elements. It refers to a negative distinction based on factors that are outside the control of the individuals involved and that are considered as characteristics of the group to which the individual that is discriminated against is supposed to belong. Another important element of discrimination is the lack of an objective and reasonable justification. Discrimination is an offence of the basic principle of the human rights system that says that all human beings are equal in their claim to protection of their human rights. It may also appear in an indirect form, that is, a rule that is neutral in itself may have an adverse effect on a particular group. Dutch law contains a definition of discrimination in article 90 quater of the Penal Code that closely resembles article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The AWGB (General Act on Equal Treatment) prohibits discrimination that is based on the grounds enumerated in the Act (among them race and nationality).
The meaning of the concept of race is to be considered against its historical background: the protection of minorities by the League of Nations, Nazism and the process of decolonisation. There is no clear definition of race in any of the treaty provisions, yet it is certain that the concept is to be interpreted broadly. Apart from race in a narrow sense, referring to biological characteristics, the broad concept of race also covers cultural elements (‘ethnic origin’) and geographical elements (‘national origin’). This is in accordance with the way the concept is used in article 1 CERD. Dutch law uses the same broad interpretation.
The main problem in respect of the concept of race is to what extent nationality is included. Nationality is usually excluded as a ground for discrimination from treaty provisions that prohibit discrimination on the ground of race. A distinction is to be made between nationality in an ethnic sense on the one hand and nationality in the legal sense on the other. The former is part of the concept of race, the latter is not. However, nationality in the legal sense of the word will be dealt with in this book, not only because it is linked to the ground of race but also because even states more and more agree to the outlawing of distinctions on the ground of nationality as part of the elimination of racial discrimination. This development is as yet unfinished: states often return to the possibilities international law provides them with to make a distinction between citizens and non-citizens.
Persons belonging to the group that is the subject of the present research will be referred to as members of ‘ethnic minorities’. The idea behind the use of this concept is that this group ethnically forms a minority within Dutch society. Not all of its members are necessarily immigrants themselves. Also not all members of the group are necessarily in a disadvantaged position in the labour market. If someone belongs to an ‘ethnic minority’ we may only suspect that the person in question is in such a disadvantaged position.
The right to work is a human right and as such should be enjoyable for all without any racial discrimination. The fact that many members of ‘ethnic minorities’ are in a disadvantaged position in the labour market shows that there is a problem with the realisation of this right. To be in employment is important from the point of view of self-fulfilment and because it makes people useful for society as a whole. The main aspects of the right to work are the promotion of full employment and free choice of employment. States have an obligation to refrain from interference but also to take measures that may further the realisation of the right to work. The right to work is a clear example of a human right that is neither ‘classical’ nor ‘social’ in the strict sense of the word: it contains elements of both categories of rights. Unfortunately this is not (yet) reflected in treaty provisions nor in the Dutch constitution.
The treaty provisions under consideration in this book relate to the elimination of racial discrimination, the recognition of (elements of) the right to work and/or the legal position of migrant workers. The second chapter deals with the relevant provisions. In article 5(e)(i) CERD it is stipulated that the right to work, to free choice of employment and to the protection against unemployment are to be enjoyed free from racial discrimination. Article 6 CESCR (International Covenant on Economic, Social and Cultural Rights) lays down the right to work. Article 2(2) of the same Covenant states that this right is to be enjoyed without discrimination of any kind. Article 25(c) CCPR (International Covenant on Civil and Political Rights) mentions the right of citizens to access to public service. The prohibition of discrimination for all rights of the CCPR is laid down in article 2(1). A general provision on equal treatment and non-discrimination can be found in article 26 CCPR. According to the Human Rights Committee individuals may also invoke this article when the right to work from the CESCR is at issue. The ESC (European Social Charter) contains some state obligations concerning the enjoyment of the right to work in its first article and a provision concerning non-discrimination in its preamble. The enumeration of grounds for discrimination in this case is a limitative one, but both race and national extraction are included.
The right to work is not explicitly laid down in any convention of the ILO (International Labour Organisation). A provision concerning this right would make more complete the ILO-system of conventions and stress the human rights side of ILO-activities. C. 111 prohibits discrimination on the ground of race or national extraction in the field of employment and occupation. C. 122 asks for a state policy that promotes “full, productive and freely chosen employment” and guarantees the enjoyment of free choice of employment without discrimination on the ground of race or national extraction. C. 158 prohibits dismissal without valid reason and mentions race and national extraction among the reasons that are not valid. C. 158 has not yet been ratified by the Netherlands.
The subject of migrant workers is covered by separate provisions meant to offer protection to migrant workers and their families and to guarantee that they will not be treated less favourably than the nationals of a State Party in certain fields. For the ILO C. 97 and C. 143 deal with migrant workers. C. 143 has not yet been ratified by the Netherlands. At the European level article 18 and 19 ESC and the ECLSMW (European Convention on the Legal Status of Migrant Workers) deal with the position of migrant workers. The UN convention concerning migrant workers (ICMW, the International Convention for the Protection of Migrant Workers and Members of their Families) has not yet entered into force.
The third chapter is on implementation of international law within the national legal order in general. According to Dutch law, judges may declare that treaty provisions are self-executing (that is, may be invoked in national courts) when according to their nature they may also bind individuals. Social rights usually are not considered as self-executing. Yet they may be considered self-executing in combination with article 26 CCPR on non-discrimination which is a self-executing provision. Judges should follow a progressive course in this matter.
Rather than dividing state obligations into obligations of a classical nature on the one hand and obligations of a social nature on the other, a division should be made into obligations “to respect”, “to protect”, “to redress” and to “fulfil” for all human rights, including the right to work. The actual provision of employment will only be at issue when all other obligations have appeared insufficient for the realisation of the right to work. Even then the other obligations still stand – respect for the freedom of individuals to try and be self-supporting is to be guaranteed at all times.
Treaty provisions may also have horizontal effect, that is, they may be applicable in the relationship between individuals, in particular between employers and employees.
Chapter 4A deals with access of foreigners to the Dutch labour market. Before any access to the labour market can be considered there is first of all another problem to be dealt with: the possibilities for foreigners to have access to the Dutch territory. International law does not prohibit restrictions on the access of foreigners to the territory of states as such. As a consequence we cannot say that the Netherlands do not sufficiently implement international law by restricting the entry of non-nationals. Access to the labour market is regulated by some sort of second system of entry-restrictions. As far as foreigners that are not yet admitted to the territory are concerned, restrictions on access to the labour market will not soon come into conflict with treaty provisions concerning the right to work, since those obligations usually start only when the foreigner in question is already lawfully resident on the territory – even if distinctions on the ground of nationality are prohibited. Article 18 ESC however requires states to apply restrictions on the access to the labour market “in a spirit of liberality” and to liberalise the relevant regulations for employees from states parties. Dutch law in fact went in the opposite direction: the new Act on employment of foreigners (WAV) brings about more restrictions than the WABW (Act on employment of foreign workers).
The only real exception to the above is article 6 CESCR in combination with the prohibition of discrimination of any kind that is laid down in article 2(2) CESCR. The CESCR is applicable for all who are under the jurisdiction or on the territory of the state. Under this treaty, states may restrict entry to the territory, but it is not allowed to restrict access to the labour market for those foreigners who are actually on the territory of the state, regardless of whether or not they are already lawfully resident.
In the case of foreigners lawfully resident on the territory of the state the same treaty provisions, article 6 CESCR in connection with article 2(2) CESCR, prohibit restrictions to the access to the labour market. Also the requirement of a work permit is contrary to article 8(2) ECLSMW since this article only allows restrictions on the free choice of employment during the first year, whereas the requirement of a work permit only ends after lawful residence during three years. Here Dutch law will be contrary to international requirements as long as the WAV continues to exist. Shortening of the period during which a work permit is required from three to two years would open the possibility for the Netherlands to ratify C. 143 of the ILO, since this convention allows restrictions on the free choice of employment for two years.
State reports as well as discussions in treaty bodies show that often measures to remove restrictions on the access to the labour market for foreigners are considered as measures relevant for the elimination of racial discrimination. This might mean that before long distinctions on the ground of nationality, even in the legal sense of the word, will be considered unlawful. But to what extent treaty provisions prohibiting racial discrimination oblige states to continue with removal of such restrictions is as yet unclear.
Racial discrimination is one of the main causes for the disadvantaged positions of ‘ethnic minorities’ in the labour market. It took some time before this was recognised. Even now, some state that a low rate of education is the main cause. Part B of the fourth chapter deals with measures for the further realisation of a right to work free from racial discrimination.
In section a of chapter 4B several measures for the improvement of employment in general and employment of ‘ethnic minorities’ in particular are discussed. The Act that decreases the costs of labour for employers when they appoint employees that were unemployed for a longer period (WVA), the plans to appoint more members of ‘ethnic minorities’ as civil servants (EMO), the arrangement of the Labour Foundation to come to a proportional representation of ‘ethnic minorities’ in employment and the Act that was set up with the same purpose (WBEAA) all are initiatives that go in the right direction. However, the actual implementation of these measures is insufficient. More attention should be paid to the instrument of making a plan of action. Also employers should revise their own personnel policies.
Section b of chapter 4B discusses measures for the elimination of racial discrimination. Among them are provisions of the Penal Code, the AWGB, the Act implementing the ECLSMW that states that foreign workers should receive a treatment not less favourable than nationals, codes of conduct for the labour service and bureaus for employment, non-discrimination clauses in collective labour agreements and the recommendations concerning recruitment forwarded by the Labour Foundation. Those measures in principle meet international requirements. However, here also a better implementation of measures taken is necessary to reach better results. Also every organ involved should be more alert in cases of possible discrimination. This goes for the labour office as well as for the courts. A new initiative might be a code of conduct for recruitment situations. Employers should motivate a decision not to apply a candidate for a vacancy. Indirect forms of discrimination might come to the fore in this way, since it is easier to discuss requirements for the job when they are stated explicitly.
The last substantial chapter of this book deals with the elimination of racial discrimination in the case of dismissal. More attention should be paid to this subject since it is important from the point of view of the realisation of a right to work without racial discrimination.
Discrimination on the ground of race or nationality in the case of termination of employment is prohibited in the AWGB. The Penal Code prohibits racial discrimination by employers and the Act implementing the ECLSMW requires equal treatment of nationals and non-nationals in the case of dismissal. The Director of the Regional Bureau of the labour service as well as the judge when a case of dismissal is brought to court have to take into account all circumstances of the case and to consider the interests of all parties in an objective way.
Extra measures that favour the enjoyment of the right to work free from racial discrimination – that is, more than are necessary to comply with international obligations – are recommendable and would be in the spirit of international human rights law. Codes of conduct and individual plans of action by employers would be useful from the point of view of strengthening the chain that starts with rather abstract international human rights norms and ends with concrete application measures at the level of employers and employees themselves.
Extra measures should not have the form of positive discrimination. Only criteria that are relevant for the job are to be taken into account. To recruit someone on the basis of a policy of positive discrimination would imply that he or she is appointed because of being a member of a certain group and not because he or she meets the qualifications for the job.
Employers should convince themselves that non-discrimination is in their own interest. It is the only guarantee that the best qualified candidate will be appointed for a certain job. Also they cannot afford to miss a whole group of potential workers simply because they belong to a minority.
We cannot expect miracles from any measure meant to improve the employment situation of ‘ethnic minorities’. Rather we have to make use of every possible measure and make sure that it is adequately implemented. In the end the problem might solve itself – the problem of the disadvantaged position of ‘ethnic minorities’ in the labour market as well as the problem that members of ‘ethnic minorities’ are confronted with discrimination because they are considered as members of a minority. Yet there will always be new groups that are in a disadvantaged position because of their ethnic origin. To work for the realisation of a right to work free from racial discrimination is important not only for those that belong to an ‘ethnic minority’ at present but also for those who will belong to an ‘ethnic minority’ in the future.