In Pursuit of Equality in South Africa

Right to Just and Favourable Conditions of Work (Article 7 of the International Covenant on Economic, Social and Cultural Rights)

MANDIVAVARIRA MUDARIKWA AND CHARLENE MAY

 

INTRODUCTION

This is a submission made on the Draft General Comment on the right to just and favourable conditions of work as entrenched in Article 7 of the International Covenant on Economic, Social and Cultural Rights. As this draft comment will be instrumental in the realisation of rights of vulnerable persons to access just and favourable working conditions, the submission was made specifically to ensure that the development of any normative content internationally does not exclude any class or group of people. We sought to ensure that the draft general comment is understood and finalised within the context of substantive equality.

INPUTS ON THE DRAFT GENERAL COMMENT

1. Unrecognised professions

Our engagement with marginalised groups indicates that a number of professions that are not formally recognised often function without any form of regulation. This is true for professions such as paralegals, sex workers and care workers1. It is usually in this context that women, disabled persons, LGBTI persons and other vulnerable persons suffer the most discrimination and exploitation. As a result, they are ‘an unseen labour force’ that largely falls outside of the ambit of the labour protection mechanisms in place because they are not recognised as workers. We would, therefore, like to encourage the Committee to urge State parties to ensure that all professions are recognised and regulated in an effort to realise the rights entrenched in Article 7 of the International Covenant on Economic, Social and Cultural Rights (‘Convention’). We believe that this will ensure that this right is made a reality for many people ‘working’ in unrecognised professions without regulations or protection.

2. Remuneration

We welcome the Committee’s recommendation in relation to minimum remuneration, which includes benefits such as health insurance, housing and other allowances. However, we are concerned that the Committee does not emphasise the need for State parties to take measures to ensure that all wage earners earn the minimum remuneration in reality. This is a critical issue for those in private sectors, such as domestic workers, and those outside of the recognised and regulated professions. We believe that there must be measures put in place to ensure that workers are able to receive the regulated minimum remuneration without threats to the security of their employment, which is usually what happens when employees attempt to assert their rights to receive remuneration similar to other workers similarly placed. Additionally, in some countries there are regulated sectorial determinations for specific professions, for example Sectorial Determination 7: Domestic Workers, which regulates the, ‘employment of domestic workers; which includes housekeepers, gardeners, nannies, domestic drivers…2’ While this is a commendable step in the recognition of domestic workers’ rights, not all professions have such sectorial determinations; in fact, some operate on remunerations regulated by the employers without any accountability or regulation. We, therefore, call upon the Committee to encourage State parties to determine and regulate minimum wages for all professions without unfairly excluding those professions that are not necessarily viewed as formal professions. This again relates to the issue of formal recognition of some professions, as mentioned above.

3. Equal opportunities for employment

While we appreciate the need for equal remuneration for all workers, we wish to point out that, without creating equal opportunities for vulnerable persons to join the workforce, this obligation is meaningless. Often vulnerable people are denied the opportunity to join the workforce because the prospective employer is not willing to put additional measures in place to meet the needs, for example, of a blind or deaf or physically impaired prospective employee. We believe that this undermines the value of the work that can be potentially conducted by persons fitting the previous examples or other similarly placed persons. It is, therefore, imperative for equal opportunity remuneration to be understood as an interwoven element of the obligation to create equal opportunities of employment for men and women, abled bodied and disabled persons, old and young persons, migrant and local persons, just to name a few, and noting that this is not a closed list of examples.

4. Bias and discrimination

While we note that Article 7 of the Convention specifically mentions women as a vulnerable group, we wish to remind the Committee that Article 2(2) emphasises that the rights in the Convention will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This list is non-exhaustive and similar areas of discrimination are also prohibited, including disability, age and sexual orientation; among others. We, therefore, note from the wording that, while the obligation to address and eliminate gender discrimination is specifically mentioned, it should not be perceived as the main challenge that Article 7 aims to address. Often you find that a disabled woman of colour, for example, may suffer discrimination as a result of the intersectionality of all her vulnerabilities. It is, therefore, important to clarify the obligation within an intersectional framework to ensure that the right to just and favourable conditions is guaranteed to everyone, especially all vulnerable groups, including women, older persons, sexual minorities, migrant/refugee workers, workers in the informal sector, domestic workers, unpaid care workers, unpaid workers, amongst others, without discrimination. In addition, when the Committee identifies special topics of broad application3, it is important to note, in that section, these groups of workers identified are either just examples of how bias/discrimination can be addressed or simply identify some of the steps that State parties and employers have to be cognisant of when dealing with vulnerable and marginalised persons in realising this right, to avoid limiting the understanding of the right within only the named class of persons.

5. Safety and healthy working conditions

We note with appreciation the emphasis by the Committee urging State parties to take legislative and other measures to prevent occupational injuries and disease. We wish to, however, note that in some countries, State parties have indeed put laws in place that are aimed at creating compensation mechanisms for occupational injuries and disease. These laws have not been fruitful because employers fail to register their employees in order to enable them to claim compensation should they be injured or contract a disease related to their employment, which limits the availability of this right. Often there are no accountability measures to ensure that employers register their employees. Consequently, we wish to bring this to the attention of the Committee to consider how to address employers that fail to register their employee, for example with punitive measures; alternatively, to urge State parties to make the compensation for occupational injuries and disease unconditional on pre-registration.

6. Reasonable accommodation to ensure safety and healthy working conditions

We want to emphasise here, again, that in addition to ensuring that the General Comment can be applied to varying situations of bias and discrimination, it is important for the Committee to urge State parties to put measures in place and take additional steps to reasonably accommodate the specific needs of vulnerable persons to reduce risks of occupational injuries and disease. Through the implementation of such measures and reasonable accommodation, discrimination in certain professions, such as extractive and security industries, would be addressed.

7. Risk assessment

It is important for State parties to develop and implement medical surveillance programmes in the form of regular medical check-ups to prevent or diagnose early any work-related illness to avoid deaths and serious irreparable harm to the health and safety of workers. This is of particular importance in some professions where persons work with dangerous equipment, work underground, and work with patients with communicable and fatal diseases, amongst other conditions that create the real possibility of exposure to common and serious illness such as tuberculosis, or could be exposed to violence at work. The risk assessment should also include an assessment of the protective equipment that must be provided at all times to ensure that risk of injuries and diseases are limited.

8. Core obligations

We note that general obligations of State parties in terms of economic, social and cultural rights is to respect, protect and fulfil the rights as entrenched in the Convention. In addition, Article 2(1) of the Convention also obligates State parties ‘to take steps… to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures’. It is our submission that the description of the core obligations4 must speak to these obligations particularly on fulfilling the right to just and favourable working conditions. In most cases rights are merely recorded on paper and, in practice, employers operate as if they do not exist. It is chiefly important in improving the plight of vulnerable and marginalised persons to make sure that State parties respect, protect and fulfil this right within available resources to ensure all its elements described in the draft general comment are a reality; both in law and in practice. We, therefore, urge the Committee to revise the core obligations in the draft comment to ensure that they speak to the obligations articulated above.


 

  1. These are professions not formally recognised as such in South Africa and many other countries. 
  2. http://www.labour.gov.za/DOL/legislation/sectoral-determinations/sectoral-determination-7-domestic-workers.
  3. Page 11 of the Draft General Comment.
  4. Page 17 of the Draft General Comment.