Equality and Non-discrimination at Work Basics of International Human Rights Law 2013
Core human rights documents • ILO Constitution (amended 1944): All human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity; • UN Charter 1945: ..promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; • Universal Declaration of Human Rights 1948: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, • Art. 2:Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Convention on the Elimination of Racial Discrimination 1965: Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination • Convention on the Elimination of all forms of Discrimination against Women 1979: Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity,
International Covenant on ESC Rights 1966: • Article 7 (a) (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; • (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; • International Covenant on CP Rights 1966:Art. 2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. • UN Migrant Workers Convention 1990 • UN Convention on the Rights of Persons with Disabilites 2006
C100: Equal Remuneration, 1951 Ratifications (April 2013): 171 Not ratified by: Bahrain Brunei Darussalam Kuwait Liberia Marshall Islands Myanmar Oman Palau Qatar Somalia Suriname Timor-Leste Tuvalu United States
Principle: to ensure that men and women workers receive equal remuneration for work of equal value, establishing rates of remuneration without discrimination based on sex. The State has to ensure equal remuneration between men and women in the public sector and to promote the principle in the private sector.
Scope of application • Applies to all workers • Applies to all elements of remuneration • Implies a comparison between jobs • Comparison between jobs is not limited to the same job, the same employer or the same sector
Scope of remuneration • The basic, ordinary or minimum wage or salary and • any other additional emoluments, • paid directly or indirectly by the employer, • in cash or in kind, • arising out of the workers’ employment.
Scope of Remuneration (Cont’d) Additional emoluments may include: • Overtime pay • Cash bonuses • Uniforms, tools, PCs, cell phones • Family allowances, employer-paid social security benefits • Study grants or scholarships for members of the family • Fringe benefits such as company cars, business expense accounts, paid health benefits, fitness club memberships, housing, paid vacations and entertainment
Job evaluation to determine « equal value » • Analytical methodology preferred • Used to classify jobs in occupational hierarchy based on job content • Uses job descriptions • Rating of job content is based on criteria related to responsibility, skill, effort and working conditions
How to avoid gender bias? • Make gender equality an objective of the process • Use objective criteria • Avoid stereotypes • Avoid under-valuing tasks related to care-giving • Avoid over-valuing formal credentials • Consider informal as well as formal experience
C100 – most prominent problems As of April 2014. there are 233 ‘pending comments’ – i.e., questions posed by the Committee of Experts in observations or direct requests that are awaiting an answer. The most frequent questions concern: • Lack of legislative compliance with the principle of equal value – often understood as "same or equivalent work“ General Survey 2012: No coverage of the concept at all in the legislation of Barbados, Botswana, Gambia, Indonesia, Japan, Lebanon, Malaysia, Seychelles, Saint Kitts and Nevis, Trinidad and Tobago, Tunisia and Zambia – and there are probably others • Lack of complete coverage of all kinds of remuneration • Application beyond minimum wage • Lack of information and statistics
Growing gender wage gap • Mexico: 31.1 per cent in 2006. …slight downward trend in recent years from 43.9 per cent in 2000 to 32 per cent in 2007 • Finland 2012: The Committee notes from the Government’s report that the difference in pay between men and women was 17.9 per cent in 2011, and that according to the Government the gender pay gap has decreased, even if it has not reached the tripartite equal pay programme’s target of narrowing the gender pay gap to 15 per cent by the year 2015. • Part time work: women working part time are often not getting the extra earnings and bonuses received by their male counterparts working full time in the same job. • Inadequate complaints procedures • Lack of objective job evaluation
C111: Discrimination (Employment and Occupation), 1958 Ratifications (April 2014): 172 Not ratified: Brunei Darussalam Japan Malaysia Marshall Islands Myanmar Oman Palau Singapore Suriname Thailand Timor-Leste Tuvalu United States
Objectives: The development and implementation of a national policy promoting equality of opportunity and treatment in employment and occupation, with a view to eliminating discrimination. The repeal of any national legislation inconsistent with this national policy. Scope: Applies to all persons Applies to employment and occupation
Convention No.111: definition of discrimination • Any distinction, exclusion or preference based on (one or more of the prohibited grounds) which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. • Any discrimination whether it is • In law or in practice • Direct or indirect
Direct and indirect discrimination Direct Explicit and usually intentional Indirect May not be intentional. It is an apparently neutral law or practice which has a disproportionate negative impact on a particular group protected by the Convention or by national legislation.
Prohibited grounds of discrimination Race Color National extraction Social origin Religion Political opinion Sex (Gender?) And any other ground specified by the national legislation (e.g. age, nationality, family responsibilities, language, sexual orientation, health, etc.)
Sexual harassment • Two main types of sexual harassment: • quid pro quo harassment and • sexual harassment due to a hostile working environment, which takes the form of an intimidating, hostile or humiliating work environment.
Application of Convention No.111: Equality of opportunity and treatment in employment and occupation includes: Equal access to vocational training General education, career guidance and counselling services and vocational training Equal access to employment and occupation Recruitment and hiring process, placement services, access particular occupations, including non-traditional occupations Equality in terms of conditions of work Professional training, opportunities for advancement, termination of employment, benefits, work environment, health and safety)
Exceptions to prohibition of discrimination • Inherent requirements of the job • Truly relevant facts that mean only members of an identifiable group can do the job • Difficult to identify in most cases • Security of the State • Subject to review by a court • To overcome past discrimination • Affirmative action • Quotas not preferred method, but not forbidden
Requirements of the Convention • Repeal any statutory provisions, administrative regulations or practices that are inconsistent with the national policy. • Declare and pursue a national policy to promote equality of opportunity and treatment. • Enact legislation and promote educational programmes. • Pursue the policy in the context of employment under direct control of the national authority. • Ensure observance of the policy in the context of vocational guidance and training and placement services under the direction of the national authority. • Seek cooperation with employers’ and workers’ organizations in promoting the acceptance and observance of the policy.
C111 – some current problems • Inadequate list of grounds • Lack of coverage of economic sectors • domestic workers (see new Convention and Recommendation) • agricultural workers • informal economy • Statistics • Complaints and redress mechanisms • Religious inhibitions • Inadequate treatment of sexual harassment • Job stereotyping - sex, race, culture, etc. • Lingering prejudice • women's capacity • benefits • schooling in minority areas • Affirmative action
C156: Workers with Family Responsibilities, 1981 Objective • Establishing equality of opportunity and treatment • between men and women workers with family responsibilities • between workers with family responsibilities and other workers that do not have such responsibilities Scope • Applies to all men and women workers with family responsibilities • Applies to all sectors and all categories of workers
Requirements of Convention No.156 • The national policy should permit workers with family responsibilities to engage in employment without discrimination and, to the extent possible, without conflict between their work and family responsibilities. • Enable these workers to choose their employment freely • Take account of their needs in respect of terms and conditions of work and social security
Requirements of the Convention (cont’d) • Take account of the needs of these workers in community planning and in the development of community services. • Promote information and education to generate broader public awareness. • Organize vocational guidance and training to enable re-entry and stay in the labour force. • Ensure that family responsibilities cannot constitute a valid reason for termination of employment.
Application of the provisions • national legislation • collective agreements • works rules • arbitration awards • judicial decisions • or a combination of these • or any other manner consistent with national practice
Migrant workers: Conventions Nos 97 and 143 • Governments can restrict immigration, but … • Migrant workers have the right to equal treatment with nationals in respect of work, once in the country – perhaps after period of settling in. • Undocumented migrants have all basic human rights, whether or not legally present, including non-discrimination
ILO Migrant Workers Conventions basis for UN Migrant Workers Convention • UN Convention deal more with family situations, general human rights of migrants • None widely ratified, especially by receiving countries • UN to consult ILO on all reports – ensures equivalent treatment
Indigenous and tribal peoples • ILO Convention No. 169 (revises C107) • Only binding international standards on subject • Virtually always ethnic minorities in their countries • Subject to worst exclusion and social conditions • Suffer from globalisation because of exploitation of regions, knowledge
UN Declaration of 2007 builds on ILO indigenous Conventions • UN not a binding instrument – must be used in complementary way • Growing consensus on consultation/consent and participation – but practice far behind
New ILO standards based on equal treatment • Domestic Workers Convention (No. 189) and Recommendation (No. 201), 2011 • Remove exemption of DW from labour law, treat as equally as special situation allows. • HIV and AIDS Recommendation, 2009 (No. 200) • Treat those affected by HIV and AIDS, including families, equally with other workers