Following on the support expressed by the International Labour Organization for the development of a Convention on the protection and promotion of the rights and dignity of persons with disabilities, and statements made on behalf of the ILO at the first and second meetings of the Ad Hoc Committee, the ILO now submits for consideration by the Working Group, the views of the Organization on what the Convention should contain concerning the right to decent work.
In making this submission, the ILO notes that the Convention need not be limited to defining the rights of persons with disabilities. It may also set down governmental obligations for ensuring for ensuring those rights. It may include substantive articles as well as application provisions.
Taking into account existing international treaties and in particular, ILO Convention No. 159, ILO Convention No. 111 and related ILO instruments, the following general principles are suggested as a basis to inform that process, particularly in relation to the employment provisions of the proposed Convention.
- The proposed Convention should be approached from a human rights perspective. It should be informed by the overarching principle that all persons with disabilities, without exception, are entitled to the full benefit and enjoyment of all fundamental human rights and freedoms on the basis of equality and without discrimination.
- All international human rights instruments protect the rights of persons with disabilities through the principles of equality and non-discrimination. The adoption of international standards dealing specifically with the rights of persons with disabilities should be seen as giving more detailed content to internationally agreed general rights and freedoms.
- The Convention must apply to all categories of disabled persons.
- Special attention should be paid to the situation of people with disabilities facing multiple discrimination including, in particular, women with disabilities and poor disabled persons in developing countries.
- Special attention should be paid to the situation of persons with disabilities in rural and remote areas.
- The provisions of the Convention should not conflict with existing provisions either of national law or international instruments, in particular those of Convention No. 159 concerning Vocational Rehabilitation and Employment of Disabled Persons and Convention No. 111 concerning Discrimination in Respect of Employment and Occupation.
- The provisions of the Convention should be regarded as minima, which States party may go beyond in national law.
- The Convention should address itself primarily to governments, with whom the main responsibility rests, while requiring States party to seek the cooperation of employer' and workers' organizations, and organizations of and for persons with disabilities.
- The Convention should recognize that equality of opportunity exists only when any relevant restrictions or limitations caused directly or indirectly by a disability have been compensated for by appropriate modifications, adjustments or assistance. Denial of any such reasonable accommodation constitutes disability-based discrimination. It should thus require governments not merely to abstain from and prevent measures which might discriminate against persons with disabilities, but also to take affirmative action to reduce or remove barriers to full participation and to give preferential treatment, where necessary, in order to achieve equality of opportunity and treatment. Such affirmative action measures should not be regarded as discriminating against other workers.
- The Convention should recognize the importance of social dialogue in achieving the rights contained in the Convention through national level negotiations and, in the case of employment, in the concrete exercise of these rights in the workplace, through collective bargaining.
- As public services become generally more privatized, private employers and providers of goods and services, and other non-public bodies should increasingly become subject to both non-discrimination and equality norms in relation to persons with disabilities.
- Rights can only be properly exercised and protected if people are aware of their existence and are in a position to access them. In other words, rights must be visible and accessible, and there should be access to justice through easy-to-use dispute prevention and settlement systems and to legal aid.
- The Convention should recognize the importance of having an institutional framework to deal with the rights of persons with disabilities, appropriate to national conditions.
- The importance of international cooperation in the promotion of development and, hence, in the effective implementation of the Convention should be strongly reflected, and governments in particular urged to adopt special measures to help achieve that goal.
- The elaboration process should be open and transparent. It should provide for meaningful participation by all interested parties, in particular persons with disabilities and their representative organizations.
- The Convention should include provision for a monitoring mechanism which should involve the specialized United Nations agencies and other UN organs, in their respective areas of competence.
Provisions concerning the Right to Decent Work
- States party to develop, implement and periodically review national policies and systems on vocational rehabilitation and employment.
- States party to recognize the right to decent work of persons with disabilities according to personal capabilities, which includes the right to the opportunity to gain a living by work freely chosen or accepted, the right to vocational guidance, vocational training, placement and employment-related services.
- The right, according to personal capabilities, to secure and retain employment or to engage in a freely-chosen, useful, productive and remunerative employment.
- Vocational rehabilitation and employment measures to be made available and accessible to all categories of disabled persons.
- Wherever possible, persons with disabilities to avail of these services with and under the same conditions as other workers with any necessary adaptations or assistance, as required.
- The right to decent, just and favourable conditions of work which ensure, in particular:
equal pay for work of equal value
equality of opportunity and treatment for disabled men and women
safe and healthy working conditions
equal opportunity to be promoted to an appropriate higher level, subject to no considerations other than competence, experience and the inherent requirements of the job
rest and leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.
- The right to social security, including social insurance, and to a decent standard of living
- Social/Security/Insurance benefits should not constitute a disincentive to vocational rehabilitation or employment
- The right to join trade unions
- Equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of disability
- Protection against exploitation and any treatment of a discriminatory, abusive or degrading nature
- The right to protection in cases of termination of employment
- Measures to be taken to promote employment opportunities for persons with disabilities which conform to the employment and remuneration standards applicable to workers generally
- Special positive measures aimed at effective equality of opportunity and treatment between workers with disabilities and other workers not to be regarded as discriminating against other workers
- Elimination of physical, communication and other barriers and obstacles affecting transport and access to and free movement in training and employment premises
- The provision, where necessary, of support measures including technical supports, wage subsidies, and ongoing personal services to enable persons with disabilities to secure, retain and advance in employment
- Special measures to be taken to meet the vocational rehabilitation, work and employment needs of women with disabilities and other disabled persons facing multiple discrimination.
- Special measures to be taken to meet the vocational rehabilitation and employment needs of persons with disabilities in rural areas and remote communities
- Special measures to be taken to assist in overcoming prejudice, misinformation and attitudes unfavourable to the employment of persons with disabilities
- All States Parties to be encouraged to develop and adopt suitable legislation prohibiting direct and indirect discrimination in the field of training and employment on the grounds of disability, such legislation (a) to apply, inter alia, to recruitment and selection, vocational guidance, training and retraining, employment and working conditions, pay, retention, dismissal and promotion; (b) to include the requirement that reasonable accommodation be provided by employers where necessary to ensure equality of opportunity and treatment
- No provision in the Convention should affect any provisions which are more conducive to the realization of the right to decent work of persons with disabilities which may be contained in the law of a State party to the Convention or international law in force in that State, in particular Convention No. 159 concerning Vocational Rehabilitation and Employment of Disabled Persons.
- States party to ensure that other employment-related laws and regulations do not discriminate against persons with disabilities
- States party to ensure the development of alternative forms of employment for persons with disabilities who may not have the capacity to work in the open labour market
- Sheltered workshops to provide, not only useful and remunerative work, but opportunities for vocational advancement with, wherever possible, transfer to open employment
- States party to ensure that persons with disabilities have access to legal and other support to enable them to exercise their right to vocational rehabilitation and employment
- Representative organizations of employers and workers, and representative organizations of and for persons with disabilities, to be consulted on the implementation of vocational rehabilitation and employment policies for disabled persons
- States party, by methods appropriate to national conditions and practice, to pursue the policy in respect of decent work for persons with disabilities under the direct control of a national authority
- The role of the ILO in the field of vocational rehabilitation and employment of persons with disabilities to be promoted, particularly with regard to:
the encouragement and facilitation of international cooperation
the utilization of the ILO Code of Practice on Managing Disability in the Workplace
the improvement of reliable and valid statistical and other information
the promotion of research and evaluation of programmes and practices.
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