Daily Summary related to Draft Article 22
RIGHT TO WORK
Prepared by Landmine Survivors Network

Volume 3, #6
January 12, 2004

Afternoon Session
Commenced: 3.25 pm
Adjourned: 6:05 pm

RIGHT TO WORK

The Inter-American Institute on Disability (IAID) stressed the extreme importance of the right to work for adults with disabilities. Autonomy is fantasy for an individual with a disability, if he or she wants to work and is not able to. The individual becomes dependant on family and is deprived of the right to be productive. Unemployment is a serious problem with respect to PWDs. In Latin America, 75% of adults with disabilities are unemployed. Greater effort on the part of states is needed to deal with this. In spite of an individual’s best efforts, the attitude of society is oftentimes that the individual is unable to work, or that the PWD will be sick more often than a non-disabled worker. Furthermore, if the PWD has no opportunity to train, opportunities for work are limited. In many cases, experience cannot be gained. There may also be physical and ergonomic barriers, such as the inability to travel to the factories or offices, as well as economic demands placed in the workplace. With respect to access to transportation, if a PWD has to use a high-cost manner to commute to the workplace, this may contribute to unemployment. States must take action specifically related to the work environment, regarding reasonable accommodation or adaptation, ramps, access to bathrooms, and adequate lighting. The individual with a disability should be able to do his or her work safely and efficiently without excessive costs placed on the individual. States must ensure that this is applied to public institutions, and that there be incentives for private institutions to do likewise. Some countries already have experience with quota systems and incentives that we may draw from.
The individual with a disability must have opportunities for employment in the public and private sectors, as well as for self-employment, to feel productive and active.

India favored the more prescriptive approach to the right to work stipulated in Article 28 of the Bangkok draft and Article 12 of its own text. The delegate underscored the importance of ensuring the opportunity for self-employment, especially with regard to women with disabilities. Moreover, as many PWD live in destitution, governments need to include PWD in their programs to eliminate poverty. Workplace training, and in-place training is also essential, so that absorption in the workplace is made easier.

Japan asserted that the term “reasonable accommodation” in Article 25 of the Chair’s draft needed further qualification. This term is now in the General Obligations of States Parties section of the treaty, in close connection with the definition of discrimination. When we consider it we hope to take into account the various programs in each country as well as employers’ responsibilities.

Ireland asserted that the EU text contains many elements that are not in the Chair’s draft. Article 6 (c) stipulates that States are to “take measures to promote employment opportunities including free vocational choice for persons with disabilities so as to enable them to exercise the right to work and enjoy equal conditions of work.” Ireland would like to see the promotion of employment opportunities for PWD and the emphasis on equal conditions of work reflected in this article. Both the original meaning of the concept of reasonable accommodation and its reference in EU legislation is related to the context of employment. The WG needs to address it more specifically in this article, than in the general convention. A right to reasonable accommodation would present some difficulty but a provision on this would be acceptable. In this context the concept of training, as described in the EU’s legislation on the subject, may be relevant. EU Article 6 (b) provides useful language on vocational training that is relevant to the right to work. Some of the measures in other drafts do not go far enough, such as Article 14 of the Mexican draft on the right to work cited by the Indian delegation. The issues addressed in article 14 (a) are issues that need to be dealt with in legislation, and not simply in individual or collective labor agreements. Article 14 (c) of the Mexican draft addresses the issue of equal salary for equal pay; this should also be clearly set out in legislation.

Columbia concurred with Ireland that Article 25 needs to be strengthened and its scope broadened. Several important elements, included in other drafts, had been left out, such as professional rehabilitation, as proposed by Ecuador. A person who has suffered a disability or illness should be entitled to re-inclusion or transfer within the workplace. Professional rehabilitation entails rehabilitation because an individual often cannot continue to work after the disability and may need to be re-included in the company. If the person does have a pension, the individual may be more likely to be denied the right to return to the work place. In Columbia, there has been some success in relocating people with disabilities. Columbia stressed the importance for PWDs of the right to elect freely one’s career or employment, as well as of establishing national policies that need to be periodically reviewed. Furthermore, the stigma in accommodating working professionals needs to be erased so that an individual who has suffered a disability can continue to work. Awareness campaigns are an essential aspect of this.

Thailand stated that Article 28 (2) of the Bangkok draft on the right to work should be considered here, because this article offers more detail concerning the ways in which states need to guarantee this right than does the Chair’s Article 25. The Bangkok draft, for example, covers self-employment. The representative underlined the importance of requiring the same practices of the private sector, as of the public sector. Some countries, including Thailand, have developed laws and legislation that are only aimed at the private sector.

Canada asserted that there are two aspects contained in this Article. One is the establishment of the right to work as stipulated in the ICESCR. Regarding this first aspect Canada pointed to the phrase “productive resources and services” in the Chair’s Article 25, as it was not sure as to the meaning. The second aspect in this article, as indicated by Canada, is the provision of equal services in the workplace. PWD should have the opportunity to obtain skills through training, as mentioned by Ireland. Awareness raising was mentioned by several delegates, but encouraging employers to hire people with disabilities constitutes a more proactive approach. Thailand proposed providing opportunities for self-employment, however the establishment of business by PWD should also be covered. Lastly, a return to work provision is essential for PWD, because quite often PWD must take absence from their work more often than others. This needs to be recognized so that PWD may return to the workplace after an absence.

WNUSP concurred with much in the Indian draft as well as with the Mexican text. The issue of non-discrimination in the workplace has to be recognized. Language “prohibiting and abolishing any discriminatory practices” is not the same as recognizing the issue of discrimination in the sense of structural systematic barriers, such as the failure to provide reasonable accommodation. People with psychosocial disabilities are significantly represented in the unemployed, even as compared with other categories of PWD. WNUSP stressed the importance for PWD of the right to equal pay for equal work. Exploitation happens when people are in segregated projects. PWD are paid token sums for actual productive work. The issue of free choice is an integral issue, which entails economic opportunities beyond working for someone else. The Bangkok draft reference to self-employment of PWD, in its Article 28 (d) is limited to PWD in rural and remote areas. Though WNUSP respects the particular needs these groups might have, it is essential to address self-employment with respect to PWD in general.

Rehabilitation International (RI) drew a distinction between the 2 components of this Article, the substantive right to work and the concept of reasonable accommodation, and proposed they be addressed in two subparagraphs. On the former, “active labor market policies in favor of PWD including skills enhancement” as well as emphasizing “the insertion of PWD into the open labor market” need to be addressed, “which leaves open the difficult question of sheltered employment.” On the latter, the search for RA should be a “voluntary and interactive process”, with sensitivity to the public / private divide, and “great care will be needed to set out the ingredients of RA”, what is required of employers, and in this respect documents from the EU and the ILO will be useful. While reasonable accommodation might not be a right, it is a corollary to a right, namely the right to non-discrimination. Like Canada, some emphasis should be placed on right to self –employment in the context of disability. The interaction between Article 25 and the General Obligation of states to engage in positive action measures, namely quotas, in the context of employment is a controversial and difficult issue that will not be resolved here but needs to kept in mind for the future.

Germany concurred with Ireland’s statements on equal work conditions and the promotion of employment opportunity. Germany supported India with respect to including wording on the situation of women with disabilities, who often suffer double discrimination.

Regarding barriers to employment, World Federation for the Deaf (WFD) noted that legislation or even the issue of security in the workplace may constitute difficulties for PWD to exercise their right to work. In many states there is strict guidance on job security issues. On a site to repair streets, deaf people may not allowed to be hired, yet the hearing workers have to wear hearing protection devices. Security issues must be bases on real issues and not just assumptions.

World Blind Union (WBU) noted that blind people, deaf people and people with intellectual disabilities have a particularly high rate of unemployment. The reason behind this is discrimination. PWDs are among the poorest of poor. They have lower incomes, less education and fewer job opportunities. Legislation in many countries forbids blind people from certain professions and duties, such as being a witness. Countries should to take a look at their legislation to ensure that the market is open. WBU asserted that the section of the convention on employment must be more specific. Moreover, though it is indispensable to change peoples’ attitudes and perceptions towards disabilities, concrete issues such as transportation and vocational training must be addressed in order to get not only society and but also the committee who will eventually implement the treaty to understand the extent of exclusion experienced by PWD. The WBU supported comments make by Canada and Columbia.

China asserted that the WG should look at this problem from two angles. The first is to guarantee equal participation and equal pay for equal work. There is a need to make sure that PWD have protection in the workplace such as leave with pay and vocational training. Secondly, it is essential to make sure that Sates Parties take active measures to promote job opportunities for PWD.
Article 8 paragraphs (2) (3) (4) and (5) of China’s text on page 96 of the Compilation includes proposals to that effect, including support for self-employed PWDs.

Uganda explored what was meant by the term “productive resources and services” in the Chair’s draft. Uganda offered that what was meant by this language was that PWD establish their own business and participate in the economic sector of their societies. The delegate specified that there was a need for that aspect to be properly covered. Uganda agreed that PWD must be provided with technical vocational skills to enable them to be competitive. There is also a need also for career guidance for PWDs to enable them to make the right choices. In situations with high unemployment, there is temptation to exploit PWDs. Hence the need to have measures in place so that they are protected from working longer hours for less pay for example. States Parties should have clear policies on employment, outlined in consultation with PWDs. These policies should be clear and well disseminated.

DPI noted that often when PWD do have access to work, it is for lower wages. In addition, PWD are often stereotyped for a certain type of work. The Mexican and Bangkok drafts clearly guarantee PWDs employment on their own terms. The Chair’s draft is less comprehensive. Article 28 (c) of the Bangkok draft, for example, specifically mentions the issue equal wages.

WFDB asserted that employment amongst deaf-blind people hardly exists. In some countries deaf-blind people have something like a job, for example shelving shoes. Most deaf-blind people work as volunteers. There is still a lot to do with respect to deaf-blind people exercising the right to work.

Lebanon concurred that Article 25 of the Chair’s draft is not comprehensive. It does not include positive actions such as quotas or vocational training, as contained in other texts, notably the ILO proposal. Lebanon is facing the particular problem of employers who are requesting the redefinition of the capacity of PWDs to ensure productivity. If this issue is not addressed, implementation of the right to work will be in danger.

The Coordinator noted the general agreement among members of the Working Group that this article needs to be expanded.

Volume 3, #9
January 15, 2004

Morning Session
Commenced: 10:30 AM
Adjourned: 1:03 PM

RIGHT TO WORK

Republic of Korea commented that Paragraph (a) calling for “an open and inclusive labor market” was too vague and presented no real options to the state. China suggested adding “promote” in the chapeau in addition to states’ obligation to “safeguard”.

Canada was concerned that the tendency to make lists can be counterproductive, inadvertently limiting rights of certain people in terms of labor agreements for example, establishing a hierarchy between measures that make it to the list and those that don’t.

WNUSP responded that were it not for the fact that certain measures are specified in this article, they would not be understood. For example, equal remuneration for equal work of equal value career advancement, are rights that PWD are often denied. To the chapeau for the article should be added: “including, but no limited to:”

Sierra Leone affirmed its full support for this draft article.

Lebanon added “equal opportunities” to “equal remuneration for work of equal value”

Japan called for an explanation of Reasonable Accommodation as in Para (e). The implications if, for example, there is a dispute between the employer and worker need to be known to Japan.

Inclusion International agreed with Korea that this article was vague and in this respect stood in contrast to the article on the right to education. There should be consistency in the way the articles deal with the subject. Inclusive education needs to continue in the form of inclusive employment as PWD try to become integrated into the workplace. Inclusive employment is important for persons with intellectual disability, the practice needs support, it is mentioned in this article but not defined.

WBU highlighted the importance of work “to avoid poverty among PWD” who now constitute among the world’s poorest of the poor. This phrase was added to the chapeau as an objective to the right to work.

Colombia called for the mention of “professional training” and “professional rehabilitation” applicable to people who have an accident in the workplace in (b), (g) and (j). “Recognized” alone may not be enough to describe the obligations here so perhaps there should be a mention of certification for those who receive this service as well as the presumption that PWD are competent workers.

LSN proposed an amendment to (h) to replace “protect” with “guarantee without discrimination the right of.”

South Africa proposed integrating the notion of access to work, given the importance of the need for PWD to have reliable transportation to the workplace.

Rehabilitation International proposed adding “general” to “vocational guidance programs” in (b) that would subtly bring forward a preference towards inclusion and against passive labor market policies without calling for specialized “guidance programs”. Given the non-market participation of PWD, (c) could specify this objective at the outset: “pursue active labor market policies and promote equal employment….”. Colombia’s amendment on professional training programs should be incorporated in the article on education.

Uganda recommended the article also address governments, they are a major employer, who could set an example.

Ireland generally agreed with this article except for para (h). The phrase “individual and collective labor agreements” needed to be removed since the protection the of PWD with regard to employment should be done through legislation.

Thailand asked for a specific and clear mention that nothing in this article would be taken to mean that disability could be used to discriminate against a person in seeking employment.

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