The right to work and the labour law

The right to work

The right to work is the first of the specific rights recognized in the International Covenant relating to economic, social and cultural rights (ICESCR). After the part II of the Covenant, which is concerned with determining the nature of States’ obligations, the part III on specific rights follows directly with the right to work (art. 6). This last deals exclusively with the access to work and, by the same, people who do not have access to work are the subject of the main attention. Despite its importance, the right to work is not very detailed. Much has been written on issues such as discriminatory access to work but not on the right to work per se. There are only few international instruments on the subject; the ILO Convention on Employment Policy is one of them. One of the reasons for this lack of attention could come from the reluctance to treat the work as a human right, in which every individual has the right to enjoy. Another problem comes from the very understanding of what the work is. What is the work? Is it reduced to salaried employment? Does it extend to the activities of the self-employed and to the economic activities of the local workers? The work and the right to work must be defined taking into account the standards set out in the Covenant.

Work as a human rights standard

Most human rights standards are seen as something positive – for example: the food, the education, the fair working conditions, the fair judgment and the freedom of expression. However, work has negative implications as regards the mental stress or the physical effort, the misery and even a certain degree of suffering. For many individuals work has also an unpleasant task connotation; it is perceived as something we need to do only to survive. Therefore, the frequent confusion about the right to work resides on the fact that this last is perceived as an obligation. Why do we need a right for something negative? Should we not have more machines who would take care of household chores that we could well do without?

The Article 6 of the ICESCR specifies that the right to work includes: “the right of every person to obtain the opportunity to make a living by working”. This identifies for us the crucial element of this human rights standard, which is the opportunity to make a living. What is the meaning of “make a living”? According to the Article 11 of the ICESCR, there is an unconditional right to a decent standard of living; it does not depend on the labour. Thus, work as a human right must not be seen as a mean of achieving a decent standard of living (this is guaranteed in another human right), but as a mean to earn such a standard of living.

The term “win” has some moral connotations. If you win money, you are rightly rewarded for a service you have rendered for the well-being of the others. The work therefore has something to do with your relationship and participation in the activities of the company (or of your family) to ensure your survival or well-being. It includes acceptance and gratification that you take from your community or society.

Even in societies where social assistance exists, where the right to a decent standard of living to food, to housing etc., is guaranteed to persons who do not participate in economic activities, the lack of participation is perceived as a severe deprivation by the victims of unemployment. This can lead to social isolation and personality disintegration. Consequently, work as a human right standard is much more than a tool to achieve a decent standard of living. Based on this description, it should be clear that work as a human right is very different from just paid work. Local farmers and fishermen work in the same way as hunters, pickers, traders and business men. Work can be more (such as for local workers) or less (such as for the employees) integrated with the rest of life and activities. Nevertheless, work always means doing activities that will meet the needs and it creates services for your group and your company and, therefore, it must be accepted and rewarded. 

Regional and international standards on the right to work

The Article 23 of the Universal Declaration of Human Rights (UDHR) guarantees that everyone “has the right to work, to have free choice of employment, to fair and satisfactory working conditions and to protection against the unemployment”. In Article 6 (1), the ICESCR specifies: “the right of every person to earn a living by working”. The section 6 (2) also states that “the full exercise of this right must include technical and professional guidance and training, the development of programs”. The Article 1 (2) of ILO Convention 122 specifies that each member must ensure “that there will be work for all who are available and in search of work”.

The Article 1 of the European Social Charter specifies: to ensure the effective exercise of the right to work, the Contracting Parties undertake:

  • to be recognized as one of their main objectives and responsibilities to achieving and maintaining the highest and most stable level of employment possible, towards the achievement of full employment;
  • to effectively protect the worker’s right to earn his/her living in an occupation freely entered upon;
  • to establish or maintain free employment services for all workers;
  • to ensure or promote an appropriate vocational guidance, training and rehabilitation.

The human right to work

The right to work as a human right recognizes work as something to which everyone and every individual has as a right. The right to work means, first of all, the right to participate in the activities of production and services of the society and the right to participate in the profits accruing from these joint activities, to the extent that a decent standard of living is guaranteed. The right to work therefore ensures that no one is excluded from the economic sphere. The type of work performed by a person depends on his/her access to resources, education and training. Work may be paid or independent. One of the key characteristics of work is that it enables a person to make a living. The right to work means that the work and the access to resources are distributed so that anyone who wants to work can do it. As mentioned above, the right to make a living implies, at least, that the benefits derived from these economic activities are sufficient to achieve an adequate standard of living.

The right to work is not satisfied by the participation in any type of economic activity. In fact, It includes “the right of everyone to earn a living by doing the work they voluntarily accept”. There is an important element of choice and freedom in the economic activity, which consists of earning a living. Subsequently, the right to work means that work is not only distributed in such a way that everyone can participate, but that everyone’s choice about how to make a living is guaranteed as a human right. In addition to the right to make a living, the Article 6 establishes the fact of freely choosing and accepting an employment as a human right. Here, the term “accept a job” refers to the salary while “chosen occupation” may refer to the self-employment.

Does this right guarantee that you can do whatever you want, consider it as a work and ask for a salary in exchange? The right to a chosen and to a freely accepted job may seem utopian. Nevertheless, if you look closer, we realize that this right is in fact very reasonable. For example, this does not mean that any individual who wants to become a full-time musician has the right to make a living by exercising this occupation. The right to a chosen and to a freely accepted job depends, of course, on the possibility of earning a living through the exercise of this job. Therefore, be a full-time musician cannot be considered as a job unless it is rewarded in such a way that one can earn a living from this occupation.

The State’s obligations which derive from the right to work

Is there a violation of the right to work every time an individual is unemployed? The State’s Generic Obligation within the framework of the right to work includes the right to respect, protect and satisfy any individual to have access to work for a living. It also includes the obligation to ensure that work can be freely chosen or accepted.

For example, this means that states cannot annihilate a person’s ability to earn a living (obligation to respect). States must ensure that this possibility is observed by third parties (obligation to protect). States must give the opportunity to earn a living to anyone who currently does not have that opportunity (obligation to comply). In addition, work preferences should be met where possible.

The follow-up

With regard to the right of work, some elements of the State’s obligations are as follows: career guidance, training and employment services.

The ICESCR includes certain performance obligations such that “technical career guidance and training programs” as well as “policies and techniques to ensure economic, social and cultural development, the full employment and the productive employment”. As an obligation of the State relating to a human right, the access to vocational guidance and to training must be made possible for everyone and for free, or at a cost that does not limit the access in it.

Another element of the State’s obligation is non-discrimination. All human beings, regardless of their gender, their ethnic or national origin, their religion or social status must have access to the labour market (or to any policy or program relating to this right).

For example, within the framework of the right to work, the European Social Charter stipulates that the free employment services are an additional obligation of the State. Respectively, the Articles 9 and 10 of the ESC refer to the right to career guidance and to the right to vocational training. As numerous as they are, all these government obligations cannot prevent a high unemployment rate nor the suffering of those affected – even if social security plays its role. The obligation of the State that will really address this problem will be to provide “full employment and productive employment”.

The full employment

Per job, we should always understand the salaried employment and the self-employment. Even if the Article 6 stipulates that States need only “to take action” that can lead to full employment, the Article 2 (1) specifies that measures must be taken to the maximum of the availability of resources, and hence, as quickly as possible.

In a society where the majority of people want to work for a salary in the market sector, full employment policies do not mean that the state must create new activities to absorb the available workforce (for example, through investment programs). However, the State should promote the distribution of the already existing volume of work, and ensure that anyone willing and able to do the work can get access to it.

The guarantee of employment in the “common sector”.

There is no doubt that even the best employment policies in the world will not provide access to employment, through the labour market or self-employment, in the market economy, to any person that is looking for a job. At the same time, it should be recognized that many activities that could be qualified as work are carried out outside the market, except that these people do not make a living from these activities. There are a lot of activities that are absolutely necessary, especially performed by women, who are not paid. These activities constitute an important part of the economy even if there is no exchange of money. These last belong to a sector that could be called the “common sector”. It is important to note that in a money-dominated economy, the marginalization of the common sector, which includes raising children, caring for the elderly and improving the quality of the community, has serious consequences for social well-being. In India, the employment guarantee programs and the programs that say “work is better than social assistance” in Germany, provide acceptable and paid work to those that are looking for such jobs. These programs reflect important elements of the State’s obligation with regard to the right to work, which go beyond the limited focus of the obligation to ensure full employment in the market sector. Through such programs, personal income is sufficient to achieve a satisfactory standard of living, but they cannot compete with the wages offered in the market.

Consequently, a distinction must be made between the common sector and the public sector (State sector). Instead, the common sector guarantees a minimum wage job to all those who do not want or cannot work in the market sector. The activities in the common sector are social activities which are not profitable enough for the private sector, whose urgency is not sufficient to justify the public sector seeking employees in the labour market. In the common sector, employers do not necessarily need to be state agencies, they may also be not-for-profit organizations.

The majority of people will prefer to work in the labour market or as self-employed person in the market sector, because all these activities lead to a higher standard of living.

The obligation that a job must be freely chosen and undertaken implies that a private sector and government measures must exist, to ensure that the labour market meets the labour needs and preferences of all those who wish to enter in the labour market.

Labour rights or workers’ rights

The labour rights or worker’s rights are closely linked to the right to work. The rights listed below are a set of rights that protect any individual who sells his or her work:

  • right to dignity in work;
  • right to a freely chosen and undertaken work;
  • right to an equitable remuneration;
  • right to a limited work day and to a compensation for the rest periods;
  • right to an equal pay for a work of equal value;
  • right to equal treatment;
  • right to safety and health at work.

There is a close relationship between workers’ rights and trade union rights. Wage labour has appeared only with the industrial revolution. Originally, there was no law to protect the health of salaried workers, no limit to the number of hours worked, no paid holidays and no right of association for the common good. At the beginning, the workers’ association suffered from harsh repression, later, it was only barely tolerated. Finally, contemporary regimes instituted some rights to protect the workers. Through their exercise of the right to form trade unions, workers won and helped maintain many labour rights. Human rights include the right to freedom of association, the right to negotiate with employers and the right to strike.

The right to dignity in work

The preamble of the 1944 Constitution of the International Labour Organization, that the ILO and its oversight bodies have recognized as having the force of law, and as legally binding on the Member States, is a cornerstone of international law on the right to dignity in work. In fact, the preamble proclaims the urgency to remedy to the conditions of injustice, misery and deprivation. It noted that: “the failure of any nation to adopt human conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries”. The right to dignity in work is closely associated to the prohibition of slavery, of servitude and forced labour. Although today most of the States recognize the right to dignity in work, many forms of work still exist in this world which are in contradiction with the right to dignity; they mainly affect women and children. In some countries, the debt of the servitude exists, and, in other, the domestic servitude is practiced; this is the case when an employer has absolute control over all aspects of the worker’s life. In other countries, problems have been identified that relate to the exploitation of children, by acts of prostitution and pornography. In many cases, there is a national legislation which makes such practices illegal but it is never fully applied. Such situations pose clear challenges for human rights activists, in particular to activists campaigning for ESC rights.