Disability and social justice: the International Covenant on Economic, Social and Cultural Rights
5.3 The relevance of specific ICESCR rights in the context of disability
5.3.3 Rights to participate in the workplace
Work provides the material means for a life of independence. Access to work in the mainstream employment sector is therefore of crucial importance to people with disabilities as are the associated rights to just and favourable conditions of work and freedom of association. Workplaces must often be adjusted so that they reasonably accommodate workers with disabilities in order to ensure equal effective access to the right to work.
(a) The right to work in the context of disability (article 6) Article 6 reads as follows:
1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.
The 1991 revised reporting guidelines explicitly state that States parties should report on disability under article 6.
The Committee notes in General Comment No. 5 that the realization of the right to work for persons with disabilities will require the elimination of “prominent and persistent” discrimination as well as:
the physical barriers that society has erected in areas such as transport, housing and the workplace which are then cited as the reason why persons with disabilities cannot be employed.110
It is therefore not enough to address discrimination. It is also necessary to deal with other barriers to work. According to General Comment No. 5, States should actively support the integration of persons with disabilities into the regular labour market and:
108 Rule 3 (4 ) and (6).
109 Rule 3 (7).
110 General Comment No. 5, paras. 20 and 22.
develop policies which promote and regulate flexible and alternative work arrangements that reasonably accommodate the needs of disabled workers.111
(emphasis added)
States must also ensure that lack of access to transportation does not greatly reduce the chances of persons with disabilities of “finding suitable, integrated jobs, taking advantage of educational and vocational training, or commuting to facilities of all types”.112 Thus, General Comment No. 5 requires States parties to make employment accessible to workers with disabilities.
The General Comment concedes that sheltered employment may be suitable for some persons with disabilities, but adds that the confinement of persons with a certain category of disability to certain occupations or to the production of certain goods may violate the right freely to chose or accept work.113 The aim of such sheltered and supported employment should always be employment in the open labour market.114 The use of “therapeutical treatment” which amounts to forced labour may be considered a violation of the right to work.115
According to General Comment No. 5, "technical and vocational guidance and training programmes" required under article 6 (2)
should reflect the needs of all persons with disabilities, take place in integrated settings, and be planned and implemented with the full involvement of representatives of persons with disabilities.116
Reiterating Rule 7 of the Standard Rules, the General Comment notes that rural workers have the same right as urban workers to find “productive and gainful
employment”.117 According to the Standard Rules, action programmes to promote the employment of persons with disabilities should include measures to provide persons with disabilities with training, placement and ongoing support such as personal assistance and interpreting services, measures to design and adapt workplaces to make them accessible to persons with disabilities and measures to support the use of new technology and the development of assistive devices, tools and equipment.118 According to Rule 7, States should actively support the integration of persons with disabilities into open employment by measures such as:
vocational training, incentive-oriented quota schemes, reserved or designated employment, loans or grants for small business, exclusive contracts or priority production rights, tax concessions, contract compliance or other technical or financial assistance to enterprises employing workers with disabilities.119
111 Ibid., para. 22.
112 Ibid., para. 23.
113 Ibid., para. 21.
114 Ibid., para. 20.
115 Ibid., para. 21.
116 Ibid., para. 24.
117 Ibid., para. 22.
118 Rule 7 (3).
119 Rule 7 (2).
As employers, States should create favourable conditions for the employment of persons with disabilities in the public sector and take measures to include persons with disabilities in training and employment programmes in the private and informal sectors.120 Employers in general should be encouraged to make reasonable
adjustments to accommodate persons with disabilities.121 Rule 7 recognizes that empowering persons with disabilities is not enough to ensure that they enjoy the right to work. States must also educate other persons by initiating and supporting "public awareness-raising campaigns designed to overcome negative attitudes and prejudices concerning workers with disabilities”.122 This is an important point since considerable resistance may be met with from fellow workers.
Rule 7 addresses the need for participation by organizations of persons with disabilities, stressing that they must be consulted by States, workers’ organizations and employers “concerning all measures to create training and employment
opportunities, including flexible hours, part-time work, job-sharing, self-employment and attendant care for persons with disabilities”.123 These are, in a sense, different forms of "reasonable accommodation".
The themes running through the ICESCR right to work in the context of disability are therefore, broadly speaking, non-discrimination (interpreted to require "reasonable accommodation"), a strong preference for mainstream employment in the open labour market and adequate protections for those in sheltered employment.
(b) The right to just and favourable conditions of work in the context of disability (article 7)
Article 7 reads as follows:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an
appropriate higher level, subject to no considerations other than those of seniority and competence;
(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays
120 Rule 7 (5) and (8).
121 Rule 7 (2).
122 Rule 7 (4).
123 Rule 7 (9).
According to General Comment No. 5, the right to just and favourable conditions of work applies just as much in sheltered employment as it does in the open labour market.124
Read in conjunction with article 2 (2), the right to just and favourable conditions of work is to be accorded to everyone without discrimination. States parties must ensure that workers with disabilities are not discriminated against regarding wages or other conditions of work.125 General Comment No. 5 notes that States parties have a responsibility to ensure that disability is not an excuse for paying less for equal work or for imposing substandard working conditions.126
According to Rule 7 of the Standard Rules,
States, workers' organizations and employers should cooperate to ensure equitable recruitment and promotion policies, employment conditions, rates of pay, measures to improve the work environment in order to prevent injuries and impairments and measures for the rehabilitation of employees who have sustained employment-related injuries.127
Broadly speaking, therefore, the main theme of article 7 in the context of disability is non-discrimination with respect to pay and working conditions in both sheltered and open employment.
(c) The right to form and join trade unions in the context of disability (article 8)
Article 8 reads:
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.
2. This articles hall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State
124 General Comment No. 5, para. 25.
125 Ibid.
126 Ibid.
127 Rule 7 (6).
3. Nothing in this article shall authorize States Parties to the International Labour
Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.
General Comment No. 5 notes that article 8, in conjunction with other rights,
emphasizes “the importance of the right of persons with disabilities to form their own organizations” for the protection and promotion of economic and social interests.128 Furthermore, these organizations “should be consulted regularly by government bodies and others in relation to all matters affecting them; it may also be necessary that they be supported financially and otherwise so as to ensure their viability.”129 Trade union rights are important for all disabled workers and perhaps more so for those in sheltered employment. Problems may arise if traditional trade unions refuse to accept members with disabilities or if there is resistance to the organization of workers in sheltered work environments.