ILO 2015 -- Decent Work Report(Third Edition)

Summary overview

Human rights and fundamental freedoms are the birthright of all, as stated in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights, 25 June 1993. This is the essence of the Universal Declaration of Human Rights, which begins: “Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world...”. It finds specific application in the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); and other international instruments (see Chapter 1). States have affirmed this principle again and again, including in the Copenhagen Declaration and Programme of Action adopted by the World Summit for Social Development, 1995, acknowledging that the promotion and protection of those rights and freedoms are primarily the responsibility of governments. Acceptance of that responsibility should have led to ready ratification and implementation of international instruments and adherence to internationally-recognized declarations concerning the elimination of discrimination and the promotion and protection of human rights. That this did not happen to the extent it should is evident from regular exhortations, including from Heads of State and Government in Copenhagen, for greater compliance and the avoidance, as far as possible, of the resort to reservations.

All human rights are universal, indivisible, interdependent and interrelated. It is the duty of States, regardless of their political, economic, social and cultural systems, to promote and protect all human rights and fundamental freedoms.

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized, as stated in the UN Declaration on the Right to Development, 1986. Because all human rights are inviolable and none is superior to another, the improvement of any one right cannot be set off against the deterioration of another (UN 2001, para. 10). While development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights, as stated in the Vienna Declaration. In other words, the promotion and protection of human rights should be progressed without conditions attached.

Poverty denies the enjoyment of practically all human rights. The importance of international cooperation in the eradication of poverty and promotion of development is apparent. The principle of international cooperation has been recognized in the International Covenants.

Principal international legal instruments and policy initiatives

One of the earliest international acknowledgements of the right of people with disabilities to work opportunities was made by the ILO in 1944. In a comprehensive and far-seeing Recommendation, the ILO stated unequivocally that disabled workers, “whatever the origin of their disability, should be provided with full opportunities for rehabilitation, specialized vocational guidance, training and retraining, and employment on useful work” (Employment (Transition from War to Peace) Recommendation, 1944 (No. 71)). The ILO said that persons with disabilities should, wherever possible, be trained with other workers, under the same conditions and the same pay, and called for equality of employment opportunity for disabled workers and for affirmative action to promote the employment of workers with serious disabilities.

Four years later, the right to work of everyone, including persons with disabilities, was made binding by the UN. Article 23 of the Universal Declaration of Human Rights (adopted by the General Assembly on 10 December 1948) could hardly be more explicit: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. Everyone, without discrimination, has the right to equal pay for equal work. 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. Everyone has the right to form and to join trade unions for the protection of his interests.” What proved to be one of the most important international instruments in relation to the right to work of persons with disabilities - the Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99) - was adopted by the ILO in 1955. Until the adoption of the ILO Vocational Rehabilitation and Employment (Disabled Persons) Convention (No. 159) and its Recommendation No. 168 in 1983, almost thirty years later, Recommendation No. 99 served as the basis for national legislation and practice in relation to vocational guidance, vocational training, and placement of disabled persons. It built on the core provisions of earlier instruments in relation, for example, to vocational training, equality of opportunity and ’equal remuneration for work of equal value.

The 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted by the UN General Assembly on 16 December (resolution 2200A (xxi)), was drafted in close consultation with the ILO, and reiterates those above-mentioned earlier provisions in binding treaty form. States Parties to the Covenant recognize the right of everyone to work, which includes the right to the opportunity to gain one’s living by work freely chosen or accepted, and undertake to safeguard that right (Art. 6). Steps to be taken to achieve the full realization of that right include vocational guidance, training and productive employment. States Parties also commit themselves to fair wages and equal remuneration for work of equal value without distinction of any kind; safe and healthy working conditions; and equal opportunity for everyone to be promoted in employment to an appropriate higher level, subject to no considerations other than those of seniority and competence (Art. 7). The International Covenant on Civil and Political Rights (ICCPR), also adopted in 1966, does not deal specifically with employment, but it does contain an important provision stating that all persons are equal before the law and are entitled to the equal protection of the law, and prohibiting discrimination on any ground (ICCPR, 1966, Art. 26), a clause also contained in the ICESCR (Art. 2).: It also provides for the right to form and join trade unions (ICCPR, Art 22). While disability is not explicitly mentioned in either Covenant as a prohibited ground of discrimination, it is understood to be encompassed by the term “or other status” (UN CESCR 1994, General Comment No. 5).

In 1971, the UN General Assembly proclaimed a Declaration on the Rights of Mentally Retarded Persons (resolution 2856 of 20 Dec. 1971), which affirmed, inter alia, their right to perform productive work or to engage in any other meaningful occupation to the fullest extent of their capabilities.

To encourage, assist and enable persons with disabilities to exercise their right to work on an equal basis and without discrimination, the ILO’s Human Resources Development Convention, 1975 (No. 142) called on member States to develop and implement open, flexible and complementary systems of general, technical and vocational education; educational and vocational guidance; and vocational training, including continuing employment information.

The accompanying Human Resources Development Recommendation (No. 195) adopted in 2004 to replace the original Recommendation No 150 of 1975, spells out in detail how the provisions of this Convention should be effected, highlighting the importance of policies to promote equal opportunities in accessing education, training and life-long learning, as well as career guidance and job-placement services including for persons with disabilities. The Recommendation recognizes the role of social partners, in particular employers, in promoting further training and work experience and of local authorities, communities and other interested parties in addition to government in providing services for persons with special needs.

In a further measure, the resolution concerning Vocational Rehabilitation and Social Reintegration of Disabled or Handicapped Persons, adopted on 24 June 1975, and again reflecting its perception of the importance of multi-sectoral collaboration among international bodies in pursuit of the exercise of the right to work of persons with disabilities, the ILO called for a comprehensive campaign for vocational rehabilitation² and social integration of disabled persons, in cooperation and coordination with the UN, its specialized agencies, and international, regional and non-governmental organizations (NGOs); a campaign which was to result in the International Year of Disabled Persons in 1981 and the World Programme of Action concerning Disabled Persons, among other initiatives.

Further affirmation of the right to work and the right to work-related services including vocational counselling and training, came almost immediately from the UN General Assembly in its Declaration on the Rights of Disabled Persons (resolution 3447 adopted on 9 Dec. 1975).

Building on the “full participation and equality” theme of the International Year and goal of the World Programme of Action (WPA), and conscious that developments since its seminal Recommendation No. 99 in 1955 had made it appropriate to adopt new international labour standards concerning vocational rehabilitation and employment, the ILO adopted landmark Convention No. 159 in 1983. The Convention requires each Member to formulate, implement and periodically review a national policy on vocational rehabilitation and employment of disabled persons. This policy should be based on a number of fundamental principles, in particular those of equal opportunity and treatment and provide for affirmative measures which should not be regarded as discriminating against other workers.

Measures should be introduced to foster the integration of persons with disabilities into mainstream work-related programmes and services, the development of services for those in rural areas and remote communities, the training of qualified staff. Employers’ and workers’ organizations as well as representative organizations of and for disabled persons should be consulted on the implementation of the policy. The accompanying Recommendation No. 168 details measures which should be taken to promote equitable employment opportunities, including the making of “reasonable adaptations to workplaces, job design, tools, machinery and work organization”, and outlines steps which should be taken to ensure that the consultative processes mentioned in the Convention work effectively.

The 1987 Global Meeting of Experts to Review the Implementation of the WPA proposed that a guiding philosophy should be developed to indicate priorities for action in the years ahead, and that the basis of that philosophy should be the recognition of the rights (including the right to work) of persons with disabilities. The Meeting recommended that the General Assembly convene a special conference to draft an international convention on the elimination of all forms of discrimination against disabled persons. Following a failure by the General Assembly to reach a consensus on this issue, the Standard Rules on the Equalization of Opportunities for Persons with Disabilities were adopted on 20 December 1993 (resolution 48/96). The Standard Rules are a set of non-compulsory guidelines, though the UN Economic and Social Council (ECOSOC) hoped they would become “international customary rules when they are applied by a great number of States with the intention of respecting a rule in international law” (A/C. 3/48/L.3, 1 Oct. 1993, p. 6). Employment is covered by Rule 7, which calls on all States to take various measures, most of which are contained in earlier relevant ILO Conventions and Recommendations, to ensure that persons with disabilities have equal opportunities for productive and gainful employment in the labour market.

In a further reaffirmation of the right to work, the World Conference on Human Rights, meeting in Vienna in 1993, in a direct reference to persons with disabilities, emphasized in the Vienna Declaration and Programme of Action that “every person is born equal and has the same rights to life and welfare, education and work, living independently and active participation in all aspects of society. Any direct discrimination or other negative discriminatory treatment of a disabled person is therefore a violation of his or her rights” (p. 18). The World Conference called on governments to adopt or adjust legislation to assure access to these and other rights for disabled persons.

Towards the end of 1994, the UN Committee on Economic, Social and Cultural Rights (UN CESCR) pointed out that the effects of disability-based discrimination had been particularly severe in the fields of education, employment, housing, transport, cultural life and access to public places and services (General Comment No. 5). The Committee considered the field of employment as one in which discrimination had been both prominent and persistent. In most countries, the unemployment rate among persons with disabilities was two to three times higher than that for others. Disabled persons were mostly engaged in low-paid jobs with little social and legal security and often segregated from the mainstream labour market. As the ILO had frequently noted, physical barriers such as inaccessible public transport, housing and workplaces were often the main reasons why persons with disabilities were not employed. The Committee drew attention to the valuable and comprehensive instruments developed by the ILO, including in particular Convention No. 159, and urged States Parties to the International Covenant to consider ratifying that Convention.

Heads of State and Government at the World Summit for Social Development in 1995, acknowledging the particular employment difficulties faced by persons with disabilities, committed themselves in the Copenhagen Declaration to putting the creation of employment, the reduction of unemployment, and the promotion of adequately remunerated employment at the centre of strategies and policies of governments, in full respect for those workers’ rights. The Programme of Action adopted by the Summit includes taking effective measures to bring to an end all forms of discrimination against persons with disabilities (para.15 (i)).

Echoing the exhortation of the UN CESCR a year earlier, the Programme of Action calls on governments to enhance the quality of work and employment by, inter alia, “strongly considering ratification and full implementation of ILO conventions relating to the employment rights of . . . persons with disabilities” (para.54 (c)). Acknowledging the singular role of the ILO at international level in relation to the world of work and the particular tripartite nature of its structure and operation, the Programme urges governments to promote the role of the ILO, particularly as regards improving the level of employment and the quality of work.

The Council of Europe’s European Social Charter (as revised in 1966) recognizes the right of everyone to “have the opportunity to earn [a] living in an occupation freely entered upon”, and that all workers have the right to just conditions of work. The Charter specifically acknowledges that disabled persons have the right to independence, social integration and participation in the life ofthe community.

A European Union (EU) Directive, adopted at the end of 2000, outlaws direct and indirect discrimination in the field of employment on a number of grounds, including disability. The Directive applies, inter alia, to selection criteria and recruitment conditions, vocational guidance, vocational training, employment and working conditions, including pay. Importantly, the Directive states that “reasonable accommodation” shall be provided, i.e. that employers are to take appropriate measures, where needed, to enable a person with a disability to have access to, participate in, or advance in employment, or to provide training, unless such measures would impose a ‘disproportionate burden’ on the employer(EU, 2000, pp.16-22).

The ILO Code of Practice on Managing Disability in the Workplace (ILO, 2002) was drawn up to provide guidance to employers on practical means of implementing the types of measures contained in international instruments such as those mentioned earlier. The Code was developed and unanimously agreed at a tripartite meeting of experts (representing governments and employers’ and workers’ organizations), convened in October 2001 based on the decision of the ILO Governing Body, taken at its 277th Session in March 2000. While addressed mainly to employers, the Code should also prove of considerable benefit to governments, which play a primary role in providing the necessary legislative framework for promoting equal opportunities and treatment in the workplace, and to workers’ representatives, whose main concern is to protect workers’ interests. The contents of the Code are based on the principles underpinning international instruments and initiatives.

There is no doubt that general international human rights instruments apply to all persons, including persons with disabilities. Explicit confirmation was given in 1994 by the UN CESCR (General Comment No. 5). The Committee acknowledged, however (para.2), that States Parties devoted very little attention to persons with disabilities in their reports on compliance with that Covenant. The need for explicit, disability-related provisions in international human rights instruments was recognized in later measures, including the Convention on the Rights of the Child (Art. 23), the African Charter on Human and Peoples’ Rights (Art. 18 (4)), and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Art. 18), leading the Committee to conclude that “it is now widely accepted that the human rights of persons with disabilities must be protected and promoted through general, as well as specially-designed, laws, policies and programmes” (para. 6).

In 1999, a renewed campaign, Rehabilitation International: Charter for the Third Millennium (9 September 1999), was initiated to have a specially-designed law, a UN Convention on the Rights of Persons with Disabilities, elaborated. In December 2001, on the basis of a resolution sponsored by the Government of Mexico, the UN General Assembly established an Ad Hoc Committee (AHC) “to consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the holistic approach in the work done in the fields of social development, human rights and non-discrimination and taking into account the recommendations of the Commission on Human Rights and the Commission for Social Development.”

The AHC commenced work in July 2002. Following an open and transparent elaboration process, which provided for meaningful participation by all interested parties, including persons with disabilities and their representative organizations, the AHC held eight sessions before concluding its work with the adoption on 13 December 2006 by the UN General Assembly of the CRPD (resolution 61/106). The Convention is seen as “a comprehensive and integral convention to promote and protect the rights and dignity of persons with disabilities (which) will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries” (op. cit., preamble (y)).

The principles of the CRPD are: respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women; respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

States Parties to the CRPD have general as well as specific obligations. The former include undertaking to:

• adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention;
• take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;
• ensure that public authorities and institutions act in conformity with the Convention;
• take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;
• promote the training of professionals and staff working with persons with disabilities in the rights recognized in the CRPD.

With regard to work and employment, States Parties to the CRPD recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a work environment that is open, inclusive and accessible. States Parties also undertake to take appropriate steps, including those specifically listed in the CRPD, to safeguard and promote the realization of the right to work.

The CRPD restates, reinforces and develops rights contained in other international instruments; confirms that all such rights apply to persons with disabilities; provides for the establishment of a Committee on the Rights of Persons with Disabilities to monitor the CRPD; and obliges States Parties to closely consult with and actively involve persons with disabilities, through their representative organizations, in the development and implementation of legislation and policies to implement the CRPD, and in other decision-making processes concerning issues relating to persons with disabilities.

Despite existing national, regional and international laws and other instruments, and despite the activities of international bodies and the efforts of NGOs, persons with disabilities throughout the world continue to be subjected to widespread violations of their human rights. This is an undeniable fact. In the field of employment, the available statistics indicate that the labour force inactivity rate of workers with disabilities tends to be much higher than that of other workers. Problems of access to the physical environment, including transportation, housing and workplaces, risk of losing benefits on starting work, coupled with still-held prejudices among many employers, co-workers and the general public, aggravate an already difficult situation. This is not to suggest that there has been no improvement. The significant growth in domestic anti-discrimination legislation in recent years is encouraging, even though adoption of a law does not guarantee its enforcement. The persistent efforts of international agencies, and in particular the ILO, in promoting equal opportunity and treatment in employment continue to make important inroads into the economic and social exclusion of persons with disabilities.

The CRPD has already reinforced and transformed national and international efforts and provided a renewed impetus in eliminating discrimination on the basis of disability and in positively promoting equality and inclusion. This new impetus is reflected in the reports of States Parties to the UN Committee on the Rights of Persons with Disabilities. It has also influenced the work of UN agencies individually and collaboratively through the Inter-Agency Support Group to the CRPD. It has led to the establishment, in 2011, of the UN Partnership on the Rights of Persons with Disabilities, a multi-donor Trust Fund that sponsors UN Country Teams to support CRPD implementation measures at country level. It is also reflected in the 2030 Agenda for Sustainable Development adopted by the UN General Assembly in September 2015, forming the basis for inclusive international development efforts in the coming decades.