The right to work affects the degree of enjoyment of many other rights such as the right to education, health and culture. Its realisation is not only important for the provision of income to the individual, but also for the individual’s personal development and dignity, as well as for peaceful progress of society. On the other hand, the right to work intrinsically creates a degree of dependency of the employed on his employer. As such, it could create a relationship of inequality. To protect the employed and to make a more level playing field, the right to strike and the right to associate are guaranteed, as well as the right to organise and to bargain collectively. Closely linked to the rights relating to work, are the rights related to social security.
This chapter examines a) the rights relating to work, and b) the rights relating to social security.
A. The rights relating to work
The right to work, in a broad sense, implies the right to enter employment, and the right not to be deprived of employment unfairly. The first component encompasses the factors that come into play regarding access to work; such as education, vocational training, and unemployment levels. The latter component deals with issues regarding employment security, for instance, security from being fired unjustly.
The main elements of the right to work are access to employment, freedom from forced labour and labour security. Other important components are:
The freedom to work; freedom concerning the choice of occupation as well as the place of performance;
The right to earn a living from work of one’s own choice, encompassing the freedom to establish one’s own independent form of employment or business;
The right to free employment services; the right to work has been interpreted as the commitment of the state to undertake continuous efforts to ensure full employment. Such efforts include the formulation and implementation of employment promotion policies and the promotion of technical and vocational education programmes aimed at increasing employment, as well as free access to information and assistance for job seekers;
The right to safe and healthy working conditions, as well as rest, leisure and reasonable working hours;
The right to employment; the right not to be arbitrarily dismissed and the right to protection against unemployment.
As in all socio-economic rights, the non-discrimination principle is an important dimension of the right to work. It entails non-discrimination in recruitment, in remuneration and in promotion opportunities, and in the treatment of aliens.
Several international standards deal with the right to work and many Conventions have been drafted on labour rights. Article 23 UDHR sets out the right to work, the right to equal pay for equal work, and just and favourable remuneration and Article 24 provides that everyone has the right to rest and leisure, reasonable limitations of working hours as well as periodic holidays with pay. Articles 6 and 7 ICESCR develop these rights further with regard to the right to work and its essential corollary, just and favourable conditions of work. Article 11 CEDAW provides that states shall take all appropriate measures to eliminate discrimination against women in the field of employment and Article 32 CRC sets out work conditions for children in order to protect them from economic exploitation and from work that would interfere with their education, health and development.
In the American system, Articles 6 and 7 Protocol of San Salvador set out the right to work and that conditions of work shall be just, equitable and satisfactory. Article 15 ACHPR stipulates that ‘every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work’. The Inter-American Democratic Charter sets out that the strengthening of democracy requires the ‘full and effective exercise of workers’ rights and the application of core labour standards, as recognised by the International Labour Organisation’.
The European Social Charter enshrines extensive protection of various aspects of the right to work, inter alia: the right to work (Article 1), the right to just conditions of work (Article 2), the right to safe and health working conditions and fair remuneration (Article 4) and the rights to organise and bargain collectively (Articles 5 and 6). Specific groups, such as migrant workers and disabled persons, are afforded protection and the equal rights of nationals of states parties to work in other member states are established.
When discussing labour rights it is important to stress the work of the International Labour Organisation (ILO). As stipulated in the ILO Constitution, labour should not be regarded as a commodity or article of commerce. The ILO has adopted several Conventions related to the right to work: ILO 100 concerning Equal Remuneration, ILO 122 concerning Employment Policy, ILO 111 concerning Discrimination and ILO 142 concerning Human Resources Development. Closely related to the right to work are trade union rights and the prohibition of forced labour. Several ILO Conventions protect these rights, especially ILO 87 and ILO 98 concerning Freedom of Association, ILO 29 and ILO 105 concerning Prohibition of Forced Labour, ILO 138 concerning Minimum Age and ILO 182 aiming at elimination of the worst forms of child labour.
A fundamental obligation laid on states is to ensure freedom from slavery and forced labour. Whereas a state is not obliged to guarantee work for all, it does have an obligation to take measures to achieve progressively a high, stable rate of employment. Establishing a system of government that clearly sets out a high, permanent rate of unemployment could be regarded a violation of the right to work.
The right to work does not imply the right to be provided with employment. The state must ensure, however, that it does not discriminate in access to public jobs; distinctions based on gender, race, colour, nationality, or ethnicity may not be made. Neither Article 6 ICESCR nor international or national case-law have been interpreted to establish a right to receive a function in a public or private institution. An absolute right not to be dismissed is not established, but several human rights standards protect against arbitrary deprivation of one’s right to work.
The right to work contains aspects that reflect strict and legally enforceable rights, such as the freedom to work and the principle of non-discrimination, while other elements have traditionally been more difficult to enforce; they are in essence policy objectives, framed in terms of legal obligations for states.
The Committee on Economic, Social and Cultural Rights has, for instance, dealt with the prohibition of discrimination in relation to the right to work. The Committee has found laws requiring women to obtain permission from their husbands to work a violation and it has stipulated that women may not be subjected to inferior working conditions in relation to those of men, nor be paid less for the same work.
The Committee has interpreted the ICESCR to impose the positive obligation on states to implant the right to work, inter alia, to provide vocational training and guidance programmes to ensure the progressive realisation of equal pay (General Comment 16) and to eliminate practical obstacles to the employment of the disabled, e.g., accessible transport and wheelchair-friendly buildings (General Comment 5). In 2006 the Committee adopted General Comment 18 which provides a comprehensive analysis of the normative content of the right to work and states’ obligations.
As the right to work is not enshrined in the ICCPR, the Human Rights Committee has dealt with it solely in relation to non-discrimination. The Committee has decided that obliging construction workers to wear hard hats pursues the legitimate aim of safety and thus did not unfairly discriminate against Sikhs who wear turbans for religious reasons (Bhinder v. Canada). Discrimination in relation to work, based on nationality or political opinions, is prohibited (see, e.g., Karakurt v. Austria, Yilmazdogan v. The Netherlands and Bwalya v. Zambia). In Love et al. v. Australia it found that mandatory retirement age would not constitute age discrimination when it is based on reasonable and objective considerations, noting, inter alia, that mandatory retirement age does not appear to be prohibited in any of the ILO Conventions. The Committee has also dealt with several cases concerning Article 25 (the right to access to public service). In Adimayo M. Aduayom T. Diasso and Yawo S. Dobou v. Togo the Committee recalled that the principle of access to public service on general terms of equality implies that the state has a duty to ensure that it does not discriminate against anyone. This principle is all the more applicable to persons employed in the public service and to those who have been dismissed (see also, e.g., Adrien Mundyo Buyso v. Democratic Republic of Congo and General Comment 25).
The European Committee of Independent Experts supervising the ESC (now the European Committee of Social Rights) has stated, inter alia, that the prohibition of discrimination regarding the right to work is absolute and may require special legislation, and that special measures may be necessary to help disadvantaged groups. It has stated that laws requiring women to resign from public posts when they marry, as well as forcing employees to carry out work they do not want to carry out, are in violation of the right to work.
The African Commission has dealt with few cases relating to the right to work. Cases concerning slavery have been brought before it and the Commission has found a violation of the right to work in the case of a political prisoner not being reinstated in his former governmental position following an amnesty (Annette Pagnoulle on Behalf of Abdoulaye Mazou v. Cameroon, Communication 39/90).
The Inter-American system has dealt with the rights relating to work to a limited extent. For instance, in the Baena Ricardo Case brought before the Inter-American Court, 270 former state employees alleged they were illegally dismissed for exercising their right to assembly and association in violation of the American Convention. The Court found in favour of the applicants. Reference was made to the rights related to work as set out in the Protocol of San Salvador but as Panama had not ratified the Protocol, it could not be accused of violating it (Baena Ricardo et al. case (270 Workers v. Panama)). The Court has also ruled that states’ migration policies may not infringe on fundamental human rights such as equality before the law and its effective and equal protection. More specifically the Court found that undocumented migrant workers may not be placed at a legal disadvantage in terms of labour rights as compared with citizens or legal residents (Advisory Opinion OC-18, Juridical Condition and Rights of the Undocumented Migrants).
B. The rights relating to social security
Social security can be provided on many levels and the standards do not prescribe a particular system. The Committee on Economic, Social and Cultural Rights has interpreted the term social security to encompass all the risks involved in the loss of means of subsistence for reasons beyond a person’s control. ILO 102 concerning Social Security (1952) defines social security as the protection society provides for its members through a series of public measures against economic and social distress, that would be caused by the stoppage or substantial reduction of earnings resulting from sickness, maternity, employment injury, unemployment, invalidity, old age or death. These measures include the provision of medical care and the provision of subsidies for families with children.
The right to social security exists on three different levels; the first, minimal approach, is that of social assistance provided to the needy; the second is social insurance based on contributions, grounded in working relations stipulated in national law; and the third, the welfare state, combines the two, drawing means from workers’ contributions and state funding, extending to everyone in a comprehensive approach.
The so-called ‘rights based approach’ identifies five core elements of the right to social security: Comprehensiveness: Comprehensive coverage against all circumstances that threaten the income earning ability of persons and therefore their ability to enjoy an adequate standard of living should be provided. Universality: entails that everyone in need of social security should have access to it. Adequacy and appropriateness: entails that various social security schemes should provide adequate and appropriate benefits, sufficient to ensure that the beneficiary does not fall below the poverty line. Non-discrimination: Programs should not discriminate on grounds of race, sex, gender, sexual orientation, religion, political opinion, national or social origin, birth or socio-economic status. Finally, respect for procedural rights entails that reasonable and fair rules must be established to govern eligibility for social security programmes and effective legal remedies should be provided.
In general, the rights relating to social security presume the existence of a social security system. A state has the obligation to guarantee benefits and therefore may not reduce expenditure on social security. The right to social security obliges the state to guarantee minimum conditions for survival; e.g., to provide shelter when a person’s life is in danger because of homelessness. The state must make certain insurance available; for instance, establish a regime of old-age insurance to be prescribed by national law.
Article 22 UDHR stipulates that:
Everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international co-operation and in accordance with the organisation and resources of each state, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
And according to Article 25:
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.
Article 9 ICESCR stipulates that the parties recognise the right of everyone to social security without, however, defining or indicating the degree of protection to be guaranteed. Article 10 sets out the right to social security benefits for mothers during a reasonable period before and after childbirth. Article 11 CEDAW recognises the right to social security for women, especially in cases of retirement, unemployment, sickness, invalidity, old age and other incapacity to work. In addition, Article 11 recognises the right to paid leave, Article 26 CRC recognises the right of the child to social security and social insurance and Article 27 CMW sets out the right of all migrant workers to social security on equal footing with nationals, as well as to special complementary benefits. Article 28 CRPD recognizes the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability and enumerates steps that states shall take to safeguard and promote the realization of this right.
The American Convention does not specifically mention social security, but the Protocol of San Salvador sets out the right in Article 9 and specifies situations in which the right applies, such as in old age, disability and as regards those employed, social security shall cover medical care and allowance or retirement benefits in case of occupational accidents, as well as paid maternity leave before and after birth.
The African Charter stipulates that ‘the aged and the disabled shall also have right to special measures of protection in keeping with their physical or moral needs’. There is no mention of social security as an autonomous human right, but aspects of it are covered in other articles in relation to health, the right of the aged and the disabled to special measures of protection and the individual’s duty to society.
The European Social Charter sets ILO 102 as a minimum standard and states undertake to ‘progressively’ raise standards of social security (Article 12). The ESC furthermore sets out that all workers and their dependants have a right to social security and that anyone without adequate resources has a right to social and medical assistance (Article 13), as well as the right to benefit from social welfare services (Article 14).
A number of ILO Conventions set out in more detail what the right entails; what the protection is, who is entitled to the social security and under what circumstances as well as the level of minimum benefits. The relevant ILO Conventions include: ILO 24 and ILO 25 concerning Sickness Insurance (1927 and 1933); ILO 37 and ILO 38 concerning Invalidity Insurance (1933); ILO 39 and ILO 40 concerning Compulsory Widow’s and Orphan’s Benefits (1933); ILO 42 concerning Workmen’s Compensation for Occupational Diseases (revised, 1934); ILO 102 concerning Minimum Standards of Social Security (1952); ILO 118 concerning Equality of Treatment of Nationals and Non-Nationals in Social Security (1962); ILO 121 concerning Benefits in the Case of Employment Injury (1964); ILO 128 concerning Invalidity, Old-Age and Survivors’ Benefits (1967); ILO 130 concerning Medical Care and Sickness Benefits (1969); ILO 157 concerning Maintenance of Social Security Rights (1982); and the Employment Promotion and Protection Against Unemployment Convention (No.168) (1988).
In broad terms, the right to social security can be regarded as guaranteeing the material conditions for an adequate standard of living. Social security serves to protect individuals from degrading living conditions, poverty, sickness, and material insecurity. As such, it is possible to derive a right to social security from several civil and political rights, such as the prohibition of torture and ill-treatment, the right to life, and the right to security of the person. To date, these rights have not been interpreted to encompass the right to social security; the supervisory bodies have mainly dealt with cases on discriminatory regulations regarding the beneficiaries of, or contributors to, the social security systems. Other issues include undue delay in payment, arbitrary change of amounts of benefits, and authorities’ undue delay in dealing with complaints regarding social security benefits.
The Human Rights Committee has decided a number of cases regarding discrimination in allocation of social security benefits. It has held in numerous views and a General Comment that the prohibition of discrimination extends to the right to social security. Although the ICCPR does not require states to adopt social security legislation, if it does, such legislation and its application may not be discriminatory. The Committee has held that an unemployment benefits law making benefits available to married men and not to married women (as they were not considered ‘breadwinners’) was discriminatory (Zwaan-de Vries v. The Netherlands and S.W.M. Broeks v. The Netherlands). The Committee has found violations of Article 26 where entitlement to social security benefits is linked to nationality (Gueye v. France), sexuality (Young v. Australia) and gender (Pauger v. Austria). It has found a breach of Article 26 where a long-serving civil servant was dismissed without severance pay, as the applicant did not benefit ‘without any discrimination (from) equal protection of the law’ (Orihuela v. Peru). On the other hand, differentiation based on marital status as regards benefits does not constitute discrimination under the Covenant, provided that the difference in treatment is reasonable and based on objective grounds (Sprenger v. The Netherlands).
The Committee has found the requirement of being unemployed at the time of application for unemployment benefits is reasonable and objective, in view of the purposes of the legislation to provide assistance to the unemployed (Cavalcanti v. The Netherlands). The ICESCR Committee has interpreted the normative content of the right to social security in detail in General Comment 18. The right encompasses the right to access and maintain benefits, whether in cash or in kind, without discrimination in order to secure protection, inter alia, from: lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member; unaffordable access to health care; and insufficient family support, particularly for children and adult dependents.
In relation to the right to social security, the Inter-American bodies have received a handful of cases regarding pensions. The Court has, for instance, ruled that arbitrarily reducing pensions of former civil servants to a fraction of their value violated the right to judicial protection and the right to property, but rejected the claim of a violation of the right to social security under Article 26 ACHR (progressive development) (Torres Benvenuto et al. v. Peru (Five Pensioners Case)).
The African Commission has not decided any cases regarding the right to social security.
The European Court has decided numerous cases regarding discrimination in the provision of social security benefits. It has consistently found states to be in violation, be it with regard to contributions (Van Raalte v. The Netherlands) or assistance (Taylor v. The United Kingdom). The Court has found that only very strong considerations can justify differentiation based on sex in relation to social security (see, e.g., Schuler-Zgraggen v. Switzerland). Differentiation solely based on nationality with regard to benefits constitutes prohibited discrimination under the ECHR (see, e.g., Gaygusuz v. Austria).
The Committee of Independent Experts that supervises the European Social Charter (now the European Committee of Social Rights) has stated, like the ICESCR Committee, that states have to establish or maintain a system of social security which should be on a level at least equivalent to that provided by ILO 102 and that they should endeavour to raise this level gradually. The Committee has also stated that the close relationship between the economy and social rights means the pursuit of economic goals is not necessarily incompatible with the requirement of raising the level of social security; consolidating public finances in order to prevent deficits and debt interest, is one way of safeguarding the social security system, but the Committee reserves the right to assess whether the methods chosen are appropriate.
The European Court of Justice has adjudicated several cases regarding social security, for instance, in relation to gender equality and the rights of migrant workers. An example is a case against the United Kingdom which concerned discriminatory laws regarding social benefits where the Court ruled that paying men winter fuel benefits up to a higher age than women was discriminatory (The Queen v. Secretary of State for Social Security, ex parte John Henry Taylor).