The Right to Work (for everybody): The development of the right to work by the ILO

“Politics extols the rights of man and do not guarantee the prime and only useful right, the right to work.” Charles Fourier (1772-1837) (citied in Mayer, 1985: 226)

The Right to Work is an international labour right. Bob Hepple, in his article “A Right to Work?”  analysed the right to work as a right against:

a) the state (stemming from a state obligation to provide work/ manage the economy to create jobs).

b) employers – curbing their right to dismiss employees arbitrarily, and creating an obligation to provide work.

c) trade unions – creating liability in tort law against trade unions who operate closed shops or exclude individuals from membership of the union.

In 1981 Hepple concluded that the concept of the right to work has been used to support individual employment rights and to prevent unions operating closed shops. However, Hepple concluded that there was no ‘right to a job’ against the State. Hepple’s analysis did not focus on the inclusion of people who are disabled, but did reference early laws which created a right to work, of sorts, for people who were registered disabled by the imposition of quotas on larger employers. The maths meant that there were insufficient people registered disabled people to enable employers to meet these quotas – so it effectively created a right to work, but the legislation was never really enforced. Hepple also alludes to equalities legislation as a corollary of the right to work against employers and trade unions, in as much as non-discrimination provisions fetter the freedom of employers to hire or fire on a whim, where that whim amounts to disability discrimination. However, the literature on the right to work remains mainly focused on the right as a right for everybody.

The aspect of the right to work that this post is concerned with is that right against the state. In particular, this blog post will look at how the International Labour Organisation (ILO) has developed and interpreted the right to work as a right against the state, drawing on an article by Jean Mayer (1985).

The International Labour Organisation, the first organisation to engage in international standard setting of labour rights, considers the right to work – as an obligation on states to take effective measures to promote full(ish) employment.

The consideration of access to employment and the need of states to engage with demands for a livelihood are present from the outset and have gradually developed and crystalized into a right to work, through the following conventions and recommendations:

  • Constitution of the International Labour Organisation 1919
  • Unemployment Convention 1919
  • The Declaration of Philadelphia 1944
  • Employment Policy Convention 1964
  • Employment Policy Convention 1964 (No. 122), Recommendation
  • Employment Policy (Supplementary Provisions) Recommendation, 1984 (No. 169)

Mayer considers the modern concept of labour originates in industrial capitalism, which in the eighteenth century created a “clear-cut distinction between work and non-work, use value and exchange value” (1985: 226).

Mayer also considers that social rights emerged from the proclamations of the French Declaration of the Rights of Man and of the Citizen 1789  that “all men are born and remain free and equal in rights…any society in which no provision is made for guaranteeing rights… has no constitution” (1985:

Like Hepple, Mayer considers the ‘elimination of discrimination in access to employment’ as a corollary of the right to work, rather than an element of it (1985: 225).

Mayer charts the progress of the right to work from constitution to the Employment Policy Convention of 1964. The right to work has been a concern from the outset and is implicit in its constitution and the Philadelphia Declaration (Mayer, 1985: 225). The Employment Policy Convention 1964 and the accompanying recommendation is the most important document on employment (Mayer, 1985: 227). “The Committee of Experts on the Application of the Convention and Recommendations has stressed that, although there is no express mention in Convention No. 122 of the the right to work, the steps to be taken to achieve the full realisation of this right as set out in Article 6 (2) of the ICESCR are essentially measures of employment policy of the type required under the Convention (Mayer, 1985: 227 based on doc. E/1978/27).

Analysis of the drafting of the Employment Policy (Supplementary Provisions) Recommendation, 1984 (No. 169)

  • A Resolution of the 65th Session of the International Labour Conference in 1979, following on from the World Employment Conference, called for the revision of the Employment Policy Convention, 1964 (Mayer, 1985: 225).
  • A Draft resolution, calling for the right to work to be embodied in a new convention was rejected (Mayer, 1985: 225).
  • The ILO compiled an analysis of State Parties’ positions on the right to work, including whether the right was guaranteed and came with a corresponding duty.
  • “The differing positions adopted can be largely accounted for by the differences between the economic and social systems represented: on the one and, the centrally planned socialist economies called for the recognition and guarantee of the right to work as an essential component of a co-ordinated government policy; on the other hand, the developed and developing market economy countries either argued that the establishment of this right was unnecessary or accepted it only as a distant objective.” (Mayer, 1985: 238).
  • Many socialist countries felt that the right to work should include guaranteed work, or social security benefits, to conform with the ICESCR. (237)
  • The UK and other governments of market economies felt some unemployment was an acceptable trade-off to avoid directing labour and ensure work is freely chosen (237).
  • Other governments of market economies, like Cameroon and India, approved of the objective of full-employment but considered it difficult to realise for want of resources.
  • These divergent opinions led to the rejection of the amendment of the 1964 Convention to include a right to work, implementation of which would require the right to form an integral part of economic policy. Instead the amendment was adopted as a recommendation (238-9).
  • The recommendation represents a compromise between interventionism and laissez-faire policies (239).

The Committee of Experts on the Application of Conventions and Recommendations describes some of its approach to some standards as “promotional”. “Promotional” Conventions set standards that ratifying states commit to achieving through a continuing programme of action, rather than immediately. The Employment Policy Convention is a promotional convention, making it difficult to supervise. (239).

Nevertheless, the Committee of Experts has made the following observations:

  • Where unemployment is rising the Committee’s task is “to ascertain that the protection and promotion of employment are among the central goals of national policy” (240).
  • Governments must provide information on its measures to tackle declines in important sectors of industries, including the promotion of new employment opportunities “promoting the major goal, laid down by the Convention, of ensuring that there is work for all who are available for work and seeking work” (240).
  • Government employment objectives should be specific when employment is high. (240)
  • Governments should not prioritise tackling inflation over employment policies. (240)

Mayer considers this to be a similar distinction to the obligations to consult and seek co-operation within tripartism (the idea that State, employers’ and employees’ representatives all have an active role) in the Employment Policy Convention. Article 3 creates a requirement to consult, but co-operation need only be sought.

“What is required, in short, is that governments should play an active part in promoting employment and, when drawing up their economic and social policies, take appropriate measures to that end after consulting employers’ and workers representatives. Total laissez-faire and an absence of social dialogue are thus both implicitly condemned. On the other hand, the degree of success achieved in reducing unemployment and promoting employment or in establishing a consensus is not in itself a matter for controversy that could invite ILO criticism, provided it is shown that the measures adopted are genuinely and effectively aimed at objectives corresponding to those established by Convention No. 122 and that the principle of tripartism has been applied. But it goes without saying that employment policy cannot be defended on the grounds of sincerity alone: if it does not produce results, it should be changed. The touchstone here is effectiveness” (Mayer, 1985: 240-1).

Since the publication of Mayer’s article the most significant event has been the adoption of the United Nations Convention on the Rights of Persons with Disabilities. This convention creates a specific right to work for people who are disabled and is discussed in a previous post. I hope to comment further on the interaction of these two separate conventions adopted by separate UN bodies.

For people who are disabled the importance of this right, including interpretation of this right by the ILO Committee of Experts on the interpretation of conventions and recommendations, is the pressure it puts to bear on governments to adopt economic policies to promote employment and the primacy of this obligation over competing demands, such as the pressure to control high inflation. For an inclusive interpretation this also means that there is an obligation to take effective steps to promote the employment of people who are disabled.

The UK government have recently issued a consultation paper: Improving Lives The Work, Health and Disability Green Paper , much of which is focussed on getting people who are disabled into work. It is available to download by clicking here

The paper recognises that less than half (48%) of disabled people are in employment compared to 80% of the non-disabled population.Its rhetoric is of fairness and the unacceptable injustice for people who are disabled. Who doesn’t want to make things fairer for people who are disabled, enable people who want to work to get decent jobs with promotion prospects and the flexibility to meet their individual needs without aggravating any impairment? These words are easy. Along with tackling barriers the  government’s agenda includes reducing the cost of the welfare bill, which it estimates at 19 billion per annum arising from ill health, with an overall costs to the economy as 100 billion. The situation is presented as ‘unacceptable’, requiring action. The strategy is to provide support centred on the disabled person or person with a health condition. The disabled person is to be put at the centre of multi-agency support, coaching and health care. A complaint of people with impairments used to be their treatment by ‘experts’ as passive recipients. Over time social policy has changed its emphasis, treating people who use health and social services as ‘active consumers’ (Dean, 2015: 15-16). This consultation echoes this trend, expecting individuals to ‘be better able to manage any health conditions’. We may then get the worst of both worlds, being placed at the centre of joined-up services and expected to take a lead, take responsibility for managing our health conditions and setting ourselves goals and high expectations for work under the watch of coaches, occupational therapists and health workers.

This is not the place to go into the report in depth. However, as people with ill health and impairments are increasingly scrutinised, presented as deviant, and find the thresholds for claiming support are being raised as services are cut, it may be worth looking at this report from the perspective right to work, questioning the onus on the individual with health concerns or impairment(s) and putting the focus back on the government’s responsibility to create an economy which provides decent, healthy jobs accessible to all.

Bibliography:

Dean, H. (2015) Social Rights and Human Welfare. London and New York: Routledge.

Department of Work and Pensions & Department of Health (2016) Improving Lives The Work, Health and Disability Green Paper cm 9342

Hepple, B. (1981). Right to Work. Industrial Law Journal 10(2), 65-83.

Mayer, J. (1985). The Concept of the Right to Work in International Standards and the Legislation of ILO Member States. International Labour Review 124(2), 225-242.

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Author: Caroline Lambert

I am a postgraduate student at the London School of Economics. My background is in discrimination law. I have a particular interests in disability discrimination and human rights. I fit the Equality Act definition of a disabled person.

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