The committee on Economic, Social and Cultural Rights adopted General Comment No. 23 on the Right to Just and Favourable Condition of Work(article 7 of the International Covenant on Economic, Social and Cultural Rights)
Everyone has rights to the enjoyment of just and favourable conditions of work as recognized in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and other international and regional human rights treaties as well as related international legal instruments including ILO conventions and recommendations. By adopting this general comment, the committee members has drawn attention to states for the obligation towards the promotion and protection of this right as stated in the covenant. The committee has comprehensively interpreted the right to just and favourable conditions of work and now it is the obligation of states for the practical implementation of this right and form a set of criteria for evaluating the progress of states in their implementation of these rights.
This is a big achievement, PWESCR also feels proud in contributing and succeeded lobbying with the committee for the adoption of this general comment.
Committee on Economic, Social
and Cultural Rights
General
Comment No. 23 (2016) on the Right to just and favourable conditions of work (article 7
of the International Covenant on Economic, Social and Cultural
Rights)
. Introduction
1. The right of everyone to the
enjoyment of just and favourable conditions of work is recognized in the
International Covenant on Economic, Social and Cultural Rights and other international
and regional human rights treaties[1] as well as related
international legal instruments including ILO conventions and recommendations.[2] It is an important
component of other labour rights enshrined in the Covenant and the corollary of
the right to work as freely chosen and accepted. Similarly, trade union rights,
freedom of association and the right to strike are crucial means to introduce,
maintain and defend just and favourable conditions of work.[3]
In turn, social security compensates for the lack of work-related income and
complements labour rights.[4] The
enjoyment of the right to just and favourable conditions of work is
a pre-requisite for, and result of, the enjoyment of other Covenant rights, for
example, the right to the highest attainable standard of physical and mental
health, by avoiding occupational accidents and disease, and an adequate
standard of living through decent remuneration.
2. The
importance of the right to just and favourable conditions of work has yet to be
fully realized.
Almost 50 years after adoption of the Covenant, the level of wages in many
parts of the world remains low and the gender pay gap is a persistent and
global problem. The ILO estimates that annually some 330 million people are victims
of accidents at work and that there are 2 million work-related fatalities.[5]
Almost half the countries in the world still regulate weekly working hours
above the 40 hour work week, with many establishing a 48 hour limit, and some
countries have excessively high average working hours. In addition, workers in
special economic, free trade, and export processing zones are often denied the
right to just and favourable conditions of work through non-enforcement of
labour legislation.
3. Discrimination,
inequalities and a lack of assured rest and leisure conditions plague many of
the world’s workers. Economic, fiscal and political crises have led to
austerity measures that claw back advances. An increasing complexity of work
contracts, such as short-term and zero hour contracts, and non-standard forms
of employment, as well as an erosion of national and international labour
standards, collective bargaining and working conditions have resulted in
insufficient protection of just and favourable conditions of work. Even in
times of economic growth, many workers do not enjoy just and favourable
conditions of work.
4. The
Committee is aware that the concept of work and workers has evolved from the
time of drafting of the Covenant, to include new categories such as
self-employed workers, workers in the informal economy, agricultural workers,
refugee workers and unpaid workers. Following up on General Comment 18, on the
right to work, and benefitting from its experience in the consideration of
reports of States parties, this general comment is drafted by the Committee with
the aim of contributing to the full implementation of Article 7 of the
Covenant.
II. Normative
Content
5. The
right to just and favourable conditions of work is a right of everyone, without
distinction of any kind. The reference to ‘everyone’ highlights the fact that
the right applies to all workers in all settings, regardless of gender, as well as
young and older workers, workers with disabilities, workers in the informal
sector, migrant workers, workers from ethnic and other minorities, domestic
workers, self-employed workers, agricultural workers, refugee workers and unpaid
workers. The reference to everyone reinforces the general prohibition on
discrimination in article 2(2) and the equality provision in article 3 of the
Covenant and is supplemented by the various references to equality and freedom
from distinctions of any kind in sub-articles 7(a) (i) and 7(c).
6. Article
7 identifies a non-exhaustive list of fundamental elements to guarantee just
and favourable conditions of work. The reference to the term ‘in particular’
indicates that other elements, not explicitly referred to, are also relevant. In
this context, the Committee has systematically underlined factors such as prohibition of
forced labour, social and economic exploitation of children and young persons,
freedom from violence and harassment, including sexual harassment, as well as
paid maternity, paternity and parental leaves.
Article
7(a): Remuneration which provides for all workers, as a minimum, with:
(i) Remuneration
7. The
term ‘remuneration’ goes beyond the more restricted notion of ‘wage’ or
‘salary’ to include additional direct or indirect allowances in cash or in kind
that should be of a fair and reasonable amount paid by the employer to the
employee, such as grants, contributions to health insurance, housing and food
allowances, and on-site affordable childcare facilities.[6]
8. It
is clear that the reference to ‘a minimum’ in article 7(a) is to ensure that
the article should in no case limit efforts to improve the level of
remuneration above those standards.[7]
This minimum applies to ‘all workers’, reflecting the term ‘everyone’ in the
chapeau.
9. The
minimum criteria for remuneration are: fair wages, 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 (article 7(a) (i)); and a decent living for workers and
their families (article 7(a) (ii)).
(ii) Fair wage
10. All
workers have the right to a fair wage. The notion of a fair wage is not static
since it depends on a range of non-exhaustive objective criteria, reflecting
not only the output of the work but also responsibilities of the worker, the
level of skill and education required to perform the work, the impact
of the work on health and safety of the worker, specific hardships related to
the work and impact on the worker’s personal and family life.[8][9] Any
assessment of fairness should also take into account the position of women
workers, particularly where their work and pay has traditionally been undervalued.
Where workers have precarious contracts, supplements to the wage, as well as
other measures to guard against arbitrariness, may be necessary in the
interests of fairness to mitigate the lack of job security. Workers should not
have to pay back part of their wage for work already performed and should
receive all wages and benefits legally due upon termination of contracts or in
event of the bankruptcy or judicial liquidation of the employer. Employers are
prohibited from restricting freedom of workers to dispose of their
remuneration. Prisoners who accept to work should receive a fair wage. For the
clear majority of workers, fair wages are above the minimum wage. Wages should
be paid in a regular, timely fashion and in full.
(iii) 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
11. Workers
should not only receive equal remuneration when they perform the same or
similar jobs, but their remuneration should be equal even when their work is
completely different but nonetheless of equal value when assessed by objective
criteria. The requirement goes beyond only wages or pay to include other
payments or benefits paid directly or indirectly to workers. Though equality
between men and women is particularly important in this context and even merits
a specific reference in Article 7 (a)(i), the Committee reiterates that
equality applies to all workers without distinction based on race, ethnicity,
nationality, migrant or health status, disability, age, sexual orientation,
gender identity or any other ground.[10]
12. The
extent to which equality is being achieved requires an on-going objective
evaluation of whether the work is of equal value and whether the remuneration
received is equal.[11] It
should cover a broad selection of functions. Since the focus should be on the
‘value’ of the work,
evaluation factors should include skills, responsibilities and effort required
by the worker as well as working conditions. It could be based on a comparison
of rates of remuneration across organizations, enterprises and professions.
13. Objective
job evaluation is important to avoid indirect discrimination when determining rates
of remuneration and comparing the relative value of different jobs. For
example, a distinction between full time and part time work – such as payment
of bonuses only to full time employees – might indirectly discriminate against
women employees where a higher percentage of women are part time workers.[12]
Similarly, the objective evaluation of the work must be free from gender bias.
14. Equal
remuneration for work of equal value applies across all sectors. Where the
State has direct influence over rates of remuneration, equality should be
achieved in the public sector as rapidly as possible ensuring equal remuneration for work
of equal value in the civil service at central, provincial or local levels as
well as for work under public contract or in enterprises either fully or
partially owned by the State.[13]
15. Remuneration
set through collective agreements should seek equality for work of equal value.
States parties should adopt legislation as well as other measures to promote
equal remuneration for work of equal value including in the private sphere, for
example, by encouraging the establishment of a classification of jobs without
regard to sex; fixing time bound targets to achieve equality and reporting
requirements to assess whether targets have been met; and requiring progressive
decreases in the differentials between rates of remuneration for men and women
for work of equal value.[14] States
parties should consider the introduction of a wide range of vocational and
other training measures for women, including in non-traditional fields of study
and work.
16. The
notion of ‘conditions of work for women not inferior to those enjoyed by men’
and ‘equal pay for equal work’ mentioned in the second part of Article 7 (i)
(a) are more restrictive than the notion of equal remuneration for work of equal value.
First, the former are specifically related to direct discrimination on the
basis of sex, while ‘equal remuneration for work of equal value’ is without
distinction on any grounds. Second, they focus on a narrower comparison between
the same job or post, normally in the same enterprise or organization, instead
of the broader recognition of remuneration based on the value of work. Therefore, in the specific situation where a man and
a woman perform the same or similar functions, both workers must receive the
same pay but this should not detract from the requirement to take immediate
steps towards the broader obligation of achieving equal remuneration for men
and women for work of equal value.
17. ‘Conditions
of work’ in this particular sub-paragraph include the ‘conditions’ identified
in the work contract that can affect the rate of remuneration as well as
broader ‘conditions’ in other paragraphs of article 7. Thus, a woman performing
work of equal value to that of a male counterpart should not have fewer contractual
protections or more arduous contractual requirements. This requirement does not
prevent women enjoying specific conditions of work relating to pregnancy and
maternity protection.
(iv) Remuneration that provides all workers with
a decent living for themselves and their families
18. Closely
linked to the notions of fairness and equality, ‘remuneration’ must also
provide a ‘decent living’ for workers and their families. While fair wages and
equal remuneration are determined by reference to the work performed by an
individual worker as well as in comparison to other workers, remuneration that
provides a decent living must be determined by reference to outside factors
such as the cost of living and other prevailing economic and social conditions.
Thus, remuneration must be sufficient to enable the worker and his or her
family to enjoy other rights in the Covenant, such as social security, health
care, education and an adequate standard of living, including food, water and
sanitation, housing, clothing, and additional expenses such as commuting costs.
19. A
minimum
wage is ‘the minimum amount of remuneration that an employer is required to pay
wage earners for the work performed during a given period, which cannot be
reduced by collective agreement or an individual contract’[15].
It provides a means of ensuring remuneration for a decent living for workers
and their families.
20. States
parties should prioritize the adoption of a periodically reviewed minimum wage,
indexed at least to the cost of living, and maintain a mechanism to do this.
Workers, employers and their representative organizations should participate
directly in the operation of such a mechanism.
21. Minimum
wages can only be effective if they are adequate to the goals set forth in
Article 7. The minimum wage should be recognized in legislation, fixed with
reference to the requirements of a decent living, and applied consistently. The
elements to take into account in fixing the minimum wage are flexible although
they must be technically sound, including the general level of wages in the
country, the cost of living, social security contributions and benefits and
relative living standards. The minimum wage might represent a percentage
of the average wage so long as this percentage is sufficient to ensure a decent
living for workers and their families.[16]
22. Reference,
in setting the minimum wage, to wages paid for work of equal value in sectors
subject to collective wage agreements is relevant as is the general level of
salaries in the country or locality in question. The requirements of economic
and social development and the achievement of a high level of employment also need to
be considered, but the Committee underlines that such factors should not be
used to justify a minimum wage that does not ensure a decent living for workers
and their families. While recognizing that minimum wages are often frozen
during times of economic and financial crises, the Committee further underlines
that, in order for States Parties to comply with Article 7 of the Covenant,
such a measure has to be taken as a last resort and must be of a temporary
nature, bearing in mind the needs of workers in vulnerable situations, with a
return to the standard procedures of periodic review and increase in the
minimum wage as swiftly as possible.[17]
23. The
minimum wage should apply systematically, protecting as much as possible the
fullest range of workers, including workers in vulnerable situations. The
minimum wage might apply generally or differ across sectors, regions, zones and
professional categories[18]
so long as the wages apply without direct or indirect discrimination and ensure
a decent living. In setting minimum wages at sector or industry level, the work
performed in sectors predominantly employing women, minorities or foreign
workers, should not be undervalued compared to work in sectors predominantly
employing men or nationals. It is particularly important to ensure that job
evaluation methods used to align or adjust sectoral or occupational minimum
wage schemes are not inherently discriminatory.
24. The
failure of employers to respect the minimum wage should be subject to penal or
other sanctions. Appropriate measures, including effective labour inspections,
are necessary to ensure the application of minimum wage provisions in practice.
States parties should provide adequate information on minimum wages in relevant
languages and dialects as well as in accessible formats for workers with
disabilities and illiterate workers.
Article
7(b): Safe and healthy working conditions
25. Preventing
occupational accidents and disease is a fundamental aspect of the right to just
and favourable conditions of work and closely related to other Covenant rights,
in particular the right
to the highest attainable level of physical and mental health.[19] States
parties should adopt a national policy for the prevention of accidents and
work-related health injury by minimizing hazards in the working environment[20] and
ensuring broad participation in its formulation, implementation and review, in
particular of workers and employers and their representative organizations.[21] While
full prevention of occupational accidents and diseases might not be possible,
the human and other costs of not taking action far outweigh the financial
burden on States parties for taking immediate preventative steps that should be
increased
over time.[22]
26. The
national policy should cover all branches of economic activity including the
formal and informal sectors and all categories of workers,[23]
including non-standard workers, apprentices and interns. It should take into account specific risks to
the safety and health of female workers in case of pregnancy, as well as of
workers with disabilities, without any form of discrimination against these
workers. Workers should be able to monitor working conditions without fear of
reprisal.
27. The
policy should address at least the following areas[24]:
design, testing, choice, substitution, installation, arrangement, use and
maintenance of the material elements of work (workplaces, working environment,
work processes, tools, machinery and equipment, as well as chemical,
physical and biological substances and agents); the relationship between the
main elements of work and the physical and mental capacities of workers,
including their ergonomic requirements; training of relevant personnel; and
protection of workers and representative organizations from disciplinary
measures when they have acted in conformity with the national policy, such as
in response to imminent and serious danger.
28. In
particular, the policy should indicate specific actions required of employers
in areas such as prevention and response to accidents and disease as well as
recording and notifying relevant data, given the fundamental responsibility of the
employer to protect the health and safety of workers; include a mechanism,
which might be a central body, for coordination on policy implementation and support
programmes and with the authority to undertake periodic reviews. To assist with
the review, the policy should promote the collection and dissemination of
reliable and valid data on the fullest possible range of occupational accidents
and disease, including accidents of workers while commuting to and from work.[25] Data
collection should respect human rights principles, including confidentiality of
personal and medical data[26]
as well as disaggregation of data by sex and other relevant grounds.
29. The
policy should incorporate appropriate monitoring and enforcement provisions including
effective investigations, and provide adequate penalties in case of violations including
the right
of enforcement authorities to suspend operation of unsafe enterprises. Workers affected by a preventable occupational
accident or disease should have a right to a remedy, including access to appropriate
grievance mechanisms, such as courts, to resolve disputes. In particular,
States parties should ensure that workers suffering from an accident or
disease, and where relevant, their dependents, receive adequate compensation,
including for costs of treatment, loss of earnings and other costs, as well as
access to rehabilitation services.
30. Access
to safe drinking water, adequate sanitation facilities that also meet women’s
specific hygiene
needs and materials and information to promote good hygiene are essential elements
of a safe and healthy working environment. Paid sick leave is critical for sick workers
to receive treatment for acute and chronic illnesses and to reduce infection of
co-workers.
Article
7(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
31. All
workers have the right to equal opportunity for promotion through fair, based
on merit, and transparent processes that respect human rights. The applicable criteria
of seniority and competence should
also include an assessment of individual circumstances as well as the different
roles and experiences of men and women, in order to ensure equal opportunities
for all. There should be no place for irrelevant criteria such as personal
preference or family, political and social links. Similarly, workers must have
the opportunity for promotion free from reprisals related to trade union or
political activity. The reference to equal opportunity requires that hiring, promotions
and terminations are not discriminatory and this is highly relevant for women
and other workers, such as workers with disabilities, workers from certain
ethnic, national and other minorities, LGBTI workers, older workers, and
indigenous workers.
32. Equality
in promotion requires the analysis of direct and indirect obstacles to
promotion as well as introduction of measures including training and initiatives
to reconcile work and family responsibilities, such as affordable day-care
services for children and dependent adults. In order to accelerate de facto equality, temporary special measures might be necessary.[27] They
should be regularly reviewed and appropriate sanctions applied in case of
non-compliance.
33. In
the public sector, States parties should introduce objective standards for hiring,
promotions and terminations that seek to achieve equality, particularly between
men and women. Public sector promotions should be subject to impartial review. For
the private sector, States parties should adopt relevant legislation, such as
comprehensive non-discrimination legislation, to guarantee equal treatment in
hiring, promotions and terminations, and undertake surveys to monitor changes
over time.
Article
7(d): Rest, leisure, reasonable limitation of working hours and periodic
holidays with pay, as well as remuneration for public holidays
34. Rest
and leisure, limitation of working hours as well as paid periodic holidays help
workers to maintain
an appropriate balance between professional, family and personal
responsibilities and to avoid work-related stress, accidents and disease. This
also promotes the realization of other Covenant rights and therefore, though
States parties have flexibility in light of the national context, they are
required to set minimum standards that must be respected and cannot be denied
or reduced on the basis of economic or productivity arguments. States parties
should introduce, maintain and enforce laws, polices and regulations to cover
several factors.
(i) Limits on daily hours of work
35. Working
days in all activities, including unpaid work, should be limited to a specified
number of hours. While the general daily limit (without overtime) should be
eight hours,[28] the
rule should
take into account the complexities of the work place and allow for
flexibilities, responding, for example, to different types of work arrangements
such as shift work, consecutive works shifts, work during emergencies, and
flexible working arrangements. Exceptions should be strictly limited and
subject to consultation with workers and their representative organisations. Where
legislation permits longer working days, employers should compensate
longer days with shorter working days so that the average number of working
hours over a period of weeks does not exceed the general principle of eight
hours per day.[29] Requirements
for workers to be on-call or stand-by need to be taken into account in the
calculation of hours of work.
36. Legislation
should establish the maximum daily hours of work and they could differ in light
of the exigencies
of different employment activities but should not go beyond what is considered
a reasonable maximum work day. Measures aimed at assisting workers to reconcile
work with family responsibilities should not reinforce stereotyped assumptions
that men are the main breadwinners and that women should bear the main
responsibility for the household. If substantive equality is to be achieved,
both men and women workers with family responsibilities should benefit from the
measures on an equal footing.[30]
(ii) Limits on weekly hours of work
37. The
number of hours of work per week should also be limited through legislation. The
same criteria as indicated for daily limits of working hours apply. The
limitation should apply across all sectors and for all types of work, including
unpaid work. Reduced working weeks may apply, for instance, in relation to
arduous activities. The Committee is aware that many States parties have opted
for a forty hour week and recommends that States parties that have not yet done
so take steps progressively to achieve this target.[31] Legislation
should allow for some flexibility to go beyond the limited number of hours of
work per week corresponding to different working arrangements and sectors. However,
as a general rule, the hours per week averaged over a period of time should
meet the statutory standard working week. Workers should receive additional pay
for overtime hours above the maximum additional hours worked in any given week.
(iii) Daily rest periods
38. Rest
during the day is important for workers’ health and safety and therefore
legislation should identify and protect rest periods during the work day. Where
workers operate machinery or undertake tasks that can affect the life and
health of themselves and others, legislation should include mandatory rest
periods. Legislation should also include specific regulations on rest
periods for night workers and acknowledge certain situations, for example, of
pregnant women, or lactating women that may require rest periods in order to
breast feed, or workers undergoing medical treatment. Daily rest periods should
take into account possibilities of flexible working arrangements which allow
for extended working days in return for an additional day of rest in a weekly
or fortnightly period.
(iv) Weekly rest periods
39. All
workers must
enjoy weekly rest periods, in principle, amounting to at least 24 consecutive
hours every period of seven days,[32] though
two consecutive days of rest for workers is preferable as a general rule to
ensure their health and safety. Days of rest should correspond to the customs
and traditions of the country and workers in question[33] and
apply simultaneously to all staff in the enterprise or workplace.[34]
40. Temporary
exceptions should be permissible in certain cases such as accidents, force
majeure, urgent work requirements and abnormal pressure of work or to prevent
the loss of perishable goods[35]
and where the nature of the service provided requires work on generally applied
days of rest, such as weekend retail work. In such cases, workers should
receive compensatory rest as much as possible within the seven day work period
and at least for 24 hours.[36] Any
exceptions should be agreed through consultation with workers and employers and
their representative organizations.
(v) Paid annual leave
41. All
workers, including part time and temporary workers, must have paid annual
leave.[37] Legislation
should identify the entitlement, at a minimum, of three working weeks of paid
leave for one year of full-time service. Workers should receive at least the
normal pay for the corresponding
period of holidays. Legislation should also specify minimum service
requirements, not exceeding six months, for paid leave. In such situations, the
worker should nonetheless enjoy paid leave proportionate to the period of
employment. Leave due to illness or other justified reasons should not be
deducted from paid annual leave.
42. Part-time
workers should receive paid annual leave equivalent to that of comparable
full-time workers and proportionate to hours of work. A failure to include
part-time workers in the scope of legislation will lead to inequalities between
men and women where a higher proportion of women rely on part-time work, for
example, when returning to work after maternity leave.
43. The
timing for taking paid annual leave should be subject to a negotiated decision between
the employer and the worker; however, legislation should set a minimum period
of ideally two weeks of uninterrupted paid annual leave. Workers may not
relinquish such leave, including in exchange for compensation. Upon termination
of employment, workers should receive the period of annual leave outstanding or
alternative compensation amounting to the same level of pay entitlement or
holiday credit.
44. Legislation
should identify other forms of leave, in particular entitlements to maternity, paternity
and parental leaves, to leave for family reasons and to paid sick leave. Workers
should not be placed on temporary contracts in order to be excluded from such
leave entitlements.
(vi) Paid public holidays
45. Workers
should benefit from a set number of public holidays with payment of wages
equivalent to those for a normal working day. Workers that have to work on
public holidays should receive at least the same wage as on a normal working
day as well as compensatory leave corresponding to the time worked. The setting
of minimum work requirement for entitlement to paid public holidays should be
prohibited by law. Paid public holidays should not be counted as part of annual
leave entitlements.
(vii) Flexible working arrangements
46. In
light of contemporary developments in labour law and practice, the development
of a national policy on flexibility in the work place might be appropriate. It could
include flexible arrangements
in the scheduling of working hours, for example through flex time, compressed
working weeks and job sharing, as well as flexibility in the place of work to
include work at home, telework or from a satellite work centre. Such measures
can also contribute towards a better balance between work and family
responsibilities provided they respond to the different requirements and
challenges faced by men and women workers. Flexible working arrangements must
meet the needs of both workers and employers and in no case should they be used
to undermine the right to just and favourable conditions of work.
Special
topics of broad application
47. The
right to just and favourable conditions of work relates to specific workers:
(i) Women workers: Progress
on the three key interrelated indicators for gender equality in the context of
labour rights – the ‘glass ceiling’, the ‘gender pay gap’ and the ‘sticky
floor’ - remain far from satisfactory. Intersectional discrimination and the absence
of a life-cycle approach regarding the needs of women lead to accumulated disadvantages
that have a negative impact on the right to just and favourable conditions at
work and other rights. Particular attention is needed to address occupational
segregation by sex and to achieve equal remuneration for work of equal value as
well as equal opportunity for promotion, including through the introduction of
temporary special measures. Any assessment of the ‘value’ of work must avoid
gender stereotypes that could undervalue work predominantly performed by women.
States parties should take into account the different requirements of male and
female workers. For example, specific measures might be necessary to protect
the safety and health of pregnant workers in relation to travel or night work. Day-care
services in the work place and flexible working arrangements can promote equal conditions
of work in practice. Workers benefiting from gender-specific measures should
not be penalized in other areas. States parties must undertake measures to address
traditional gender roles and other structural obstacles that perpetuate gender inequality.
(ii) Young and older workers:
All workers should be protected against age discrimination. Young workers
should not suffer wage discrimination, for example, being forced to accept low
wages that do not reflect their skills. An excessive use of unpaid internships
and training programmes, as well as of short-term and fixed term contracts that
negatively affect job security, career prospects and social security benefits
is not in line with the right to just and favourable conditions of work. Laws
and regulations should include specific measures to protect the health and
safety of young workers, including through raising the minimum age for certain
types of work.[38] Older
workers should receive fair wages, equal remuneration for work of equal value,
and have equal opportunity to promotion based on their experience and know-how.[39] Specific
health and safety measures might be necessary and older workers should benefit
from pre-retirement programmes, if they so wish.[40]
The cumulative effects of discrimination against women workers through the life-cycle
might require targeted measures to achieve equality, guarantee fair wages,
equal opportunities to promotion and equal pension rights.
(iii) Workers with disabilities:
At times, they require specific measures to enjoy the right to just and
favourable conditions of work on an equal basis with others. Workers with
disabilities should not be segregated in sheltered workshops. They should benefit
from an accessible work environment and must not be denied reasonable
accommodation like workplace adjustments or flexible working arrangements. They
should also enjoy equal remuneration for work of equal value and must not
suffer wage discrimination due to a perceived reduced capacity for work.
(iv) Workers in the informal economy:
Though these workers account for a significant percentage of the world’s work
force, they are often excluded from national statistics and legal protection,
support and safeguards, exacerbating vulnerability. While the overall objective
should be to formalize work, laws and policies should explicitly extend to
workers in the informal economy and States parties should take steps to gather
relevant disaggregated data so as to include this category of workers in the
progressive realization of the right. For that purpose the informal economy
should be included in the mandate of a respective monitoring and enforcement
mechanism. Women are often over-represented in the informal economy, for
example as casual workers, home workers or own-account workers, which in turn
exacerbates inequalities in areas such as remuneration, health and safety,
rest, leisure and paid leave.
(v) Migrant workers: These
workers, in particular if undocumented, are vulnerable to exploitation, long
working hours, unfair wages and dangerous and unhealthy working environments. Such
vulnerability is increased by abusive labour practices that give the employer
control over the migrant worker’s residence status or which tie migrant workers
to a specific employer. If they do not speak the national languages, they might
be less aware of their rights and unable to access grievance mechanisms. Undocumented
workers often fear reprisals from employers and eventual expulsion if they seek
to complain about working conditions. Laws and policies should ensure that
migrant workers enjoy treatment no less favourable than national workers in
relation to remuneration and conditions of work. Internal migrant workers are
also vulnerable to exploitation and require legislative and other measures to
ensure their right to just and favourable conditions of work.
(vi) Domestic workers:
The vast majority of domestic workers are women. Many belong to ethnic or
national minorities or are migrants. They are often isolated and can be
exploited, harassed and in some cases subject to slave-like conditions, notably
for live-in domestic workers, frequently without the right to join trade unions
nor the freedom to communicate with others. Due to stereotyped perceptions, the
skills required for domestic work are undervalued and, as a result, it is among
the lowest paid occupations. Domestic workers have the right to just and
favourable conditions of work,[41]
including protection against abuse, harassment and violence, decent working
conditions, paid annual leave, normal working hours as well as daily and weekly
rest on the basis of equality with other workers, minimum wage coverage where
this exists and remuneration established without discrimination based on sex,
as well as to social security. Legislation should recognize these rights for
domestic workers and ensure adequate means of monitoring domestic work,
including through labour inspection, and for domestic workers to complain and
seek remedies for violations.
(vii) Self-employed workers:
Where unable to earn a sufficient income, such workers should have access to
appropriate support measures. Self-employed female workers should benefit from
maternity insurance on an equal basis with other workers.[42] Legislation
on occupational health and safety should cover self-employed workers, requiring
them to undertake appropriate training programmes, and seek to raise their
awareness on the importance of rest, leisure and limitations on working time.
Small-scale farmers who rely on unpaid family labour to compensate for
difficult working conditions, deserve particular attention.
(viii) Agricultural workers: Agricultural workers often face severe socio-economic
disadvantages, forced labour, income insecurity and lack of access to basic
services. At times they are formally excluded from industrial relations and
social security systems. Women agricultural workers, particularly in family
farms, are often not recognized as workers and therefore not entitled to wages
and social protection, to join agricultural cooperatives and to benefit from loans,
credits and other measures to improve working conditions. States parties should
enact laws and policies to ensure that agricultural workers enjoy treatment no
less favourable than other categories of workers.
(ix) Refugee workers: Because of their often precarious status,
they remain vulnerable to exploitation, discrimination and abuse in the work
place, may be less well paid than nationals, have longer working hours and more
dangerous working conditions. States parties should enact legislation enabling
refugees to work and in conditions no less favourable than for nationals.
(x) Unpaid workers: Women work
in activities significant for their households and the national economy and they
spend twice as much time as men in unpaid work. Unpaid workers, such as workers
in the home or in family enterprises, volunteer workers and unpaid interns have
remained beyond the coverage of ILO Conventions and national legislation. They
have a right to just and favourable conditions of work and should be protected
by laws and policies on occupational safety and health, rest and leisure, and
reasonable limitations on working hours, as well as social security.
Freedom
from harassment, including sexual harassment
48. All
workers should be free from physical and mental harassment, including sexual
harassment. Legislation, such as anti-discrimination laws, the Penal Code and
labour legislation, should define harassment broadly, with explicit reference
to sexual and other forms of harassment, such as on the basis of sex, disability,
race, sexual orientation, gender identity, and intersex status. A specific
definition of sexual harassment at the work place is appropriate and
legislation should criminalise and punish sexual harassment as appropriate. A
national policy to be applied in the workplace, in both the public and private
sectors, should include at least the following elements: (a) explicit coverage
of harassment by and against any worker; (b) prohibition of certain acts that
constitute harassment, including sexual harassment; (c) identification of
specific duties on employers, managers, supervisors and workers to prevent and,
where relevant, resolve and remedy harassment cases; (d) access to justice for
victims, including through free legal aid; (e) compulsory training for all
staff, including for managers and supervisors; (f) protection of victims,
including focal points to assist them, as well as avenues of complaint and
redress; (g) explicit prohibition of reprisals; (h) procedures for notification
and reporting to a central public authority of claims of sexual harassment and their
resolution; (i) provision of a clearly visible workplace specific policy,
developed in consultation with workers, employers and their representative
organizations, and other relevant stakeholders such as civil society
organizations.
49. Human
rights defenders should be able to contribute to the full realisation of
Covenant rights for all, free from any form of harassment. States parties
should respect, protect and promote the work of human rights defenders and
other civil society actors towards the realisation of the right to just and
favourable conditions of work, including by facilitating access to information
and enabling the exercise of their rights to freedom of expression, association,
assembly, and public participation.
III. Obligations
General
obligations
50. States
parties must comply with their core obligations and take deliberate, concrete
and targeted steps towards the progressive realization of the right to just and
favourable conditions of work, using maximum available resources.[43]
In addition to legislation as an indispensable step, States should also ensure
the provision of judicial and other effective remedies that include, but are
not limited to, administrative, financial, educational and social measures.
51. States
parties must move as expeditiously and effectively as possible towards the full
implementation of the right with a level of flexibility to choose the
appropriate means. Though non-State actors, such as employer and worker
organizations, also have a responsibility to secure just and favourable
conditions at work, particularly through collective agreements, States parties
must effectively regulate and enforce the right and sanction non-compliance by
public and private employers.
52. State
parties should avoid taking any deliberately retrogressive measure without
careful consideration and justification. Where a State party seeks to introduce
retrogressive measures, for example, in response to an economic crisis, it has
to demonstrate that such measures are non-discriminatory, temporary, necessary,
and that they respect at least the core obligations.[44] A
State party may never justify retrogressive measures in relation to aspects of
the right subject to immediate or core obligations. States parties facing
considerable difficulties in achieving progressive realization of the right due
to a lack of national resources have an obligation to seek international
cooperation and assistance.
53. States
parties must guarantee that the right is exercised without discrimination of
any kind. Specifically, they have obligations to guarantee that women enjoy
conditions of work not inferior to those of men and receive equal pay for work
of equal value, which requires the immediate elimination of formal and
substantive discrimination.[45] States
parties must also combat all forms of unequal treatment arising from precarious
employment relationships.
54. In
order to ensure accountability, States parties should establish a functioning
system of labour inspectorates, with the involvement of social partners, to
monitor all aspects of the right for all workers, including workers in the
informal economy, domestic workers and agricultural workers; to provide advice
to workers and employers; and to raise any abuses with competent authorities.
Labour inspectorates should be independent and adequately resourced; staffed with
trained professionals; able to rely on specialists and medical experts; have
the authority to enter workplaces freely and without prior notice; make
recommendations to prevent or remedy problems; and facilitate access to justice
for victims. Penalties should apply for non-compliance with their
recommendations. Labour inspectorates should focus on monitoring the rights of
workers and not be used for other purposes such as checking the migration
status of workers.
55. States
parties should identify indicators and benchmarks to monitor the implementation
of the right. They should address the different elements of the right, be
disaggregated by sex and other relevant grounds such as age, disability, nationality,
and urban/rural, and cover all persons under the territorial jurisdiction of
the State party or under its control. States parties should define indicators
most relevant to national implementation of the right, such as the incidence of
occupational accidents; ratio of women’s to men’s wages; proportion of women
and other under-represented individuals in high-level positions; proportion of
workers offered continuing job training; number of complaints of harassment
received and resolved; minimum standards for rest, leisure, hours of work and
paid annual leave; and uptake of measures to reconcile professional and family
life by women and men. In selecting indicators, the Committee invites States parties
to have regard to available guidance, including the OHCHR lists of illustrative
indicators on Articles 6 and 7 of the Covenant and ILO indicators.[46]
56. The
Committee underlines the importance of consultation in formulating,
implementing, reviewing and monitoring laws and policies related to the right
with traditional social partners such as workers and employers and their
representative organizations, but also other relevant organizations, such as
those representing persons with disabilities, younger and older persons, women,
workers in the informal economy, migrants and LGBTI persons, as well as
representatives of ethnic groups and indigenous communities.
57. Any
person who has experienced a violation of the right to just and favourable
conditions of work should have access to effective judicial or other
appropriate remedies, including adequate reparation, restitution, compensation,
satisfaction or guarantees of non-repetition. Access to remedy should not be
denied on the grounds that the affected person was an irregular migrant. Courts,
but also national human rights institutions, labour inspectorates and other
relevant mechanisms, should have authority to address such violations. States
should review and, if necessary, reform their legislation and codes of procedure
to ensure access to remedies as well as procedural fairness. Legal assistance
for obtaining remedies should be available and it should be free for those
unable to pay.
Specific
legal obligations
58. The
right to just and favourable conditions of work imposes three levels of
obligations on States parties. First, State parties have an obligation to respect the right by refraining from
interfering directly or indirectly with its enjoyment and this is particularly
important where the State is the employer, including State-owned or controlled
enterprises. For example, States parties should not introduce salary scales
that discriminate, directly or indirectly, against women workers, or maintain a
promotion system in the public sector that favours, directly or indirectly, the
over-represented gender at higher levels. States parties should take measures
to prevent and remedy occupational accidents and disease resulting from their
acts or omissions. States parties should also respect collective agreements
aimed at introducing and maintaining just and favourable conditions of work and
review legislation, including corporate laws and regulations to ensure that
they do not constrain this right.[47]
59. The
obligation to protect requires States
parties to take measures to ensure that third parties, such as private sector
employers and enterprises, do not interfere with the enjoyment of the right and
comply with their obligations. This includes taking steps to prevent,
investigate, punish and redress abuse through effective laws and policies and
adjudication. For example, States should ensure that laws, policies and
regulations governing the right to just and favourable conditions of work such
as a national occupational safety and health policy, or legislation on minimum
wage and minimum standards for working conditions, are adequate and effectively
enforced.[48] States
parties should impose sanctions and appropriate penalties on third parties,
including adequate reparation, criminal penalties, pecuniary measures such as
damages, and administrative measures, in case of violation of any of the
elements of the right. They should also refrain from procuring goods and
services from individuals and enterprises that are abusing the right. State
parties should ensure that the mandates of labour inspectorates and other
investigation and protection mechanisms cover conditions of work in the private
sector and provide guidance to employers and enterprises. Measures to protect
should also cover the informal sector and certain workers, such as domestic
workers, may require specific measures.
60. The
obligation to fulfil requires States
parties to adopt the necessary measures to ensure the full realization of the
right. This includes introducing measures to facilitate, promote and provide
the right, including through collective bargaining and social dialogue.
61. In
order to facilitate the right, States parties should adopt positive measures to
assist workers by according sufficient recognition of the right through laws,
policies and regulations, for example, on non-discrimination, a non-derogable
minimum wage, occupational safety and health, compulsory insurance coverage,
minimum standards for rest, leisure, limitations on working hours, paid annual
and other leaves, as well as public holidays. States parties should also
introduce quotas or other temporary special measures to enable women and other
members of discriminated groups to reach high level posts and provide
incentives for the private sector to do so.
62. To
help assess the enjoyment of the right, States parties should establish
obligatory notification schemes in case of occupational accidents and disease
as well as mechanisms to assess systematically the level of the minimum wage,
fair wages, and the gender pay gap between men and women within organizations
in the public and private sectors, including in high level posts. States
parties should also periodically review the impact of laws and policies, in
consultation with workers and employers, with a view to updating standards in
light of practice. For example, the national policy on occupational safety and
health should include a built-in periodic review mechanism. States parties
should promote the extension of protective regimes to sectors in risk; introduce
schemes that allow for coverage of informal workers coupled with measures to
regularise the informal economy; create adequate dialogue mechanisms to raise
pertinent issues; introduce incentives to overcome the gender pay gap,
including through initiatives to alleviate the burden of reproductive work on
women, for example, by promoting access to goods and services, such as day care
facilities and non-transferable parental leave for men.
63. In
order to promote the right, State parties should take steps to ensure
appropriate education, information and public awareness. With a view to
creating equal opportunities for workers to advance in both the private and
public sectors, States parties should put in place training programmes and
information campaigns, also targeting employers, in relevant languages and accessible
formats for persons with disabilities and illiterate workers. Attention should
be paid to the need for gender-sensitive training on occupational health and
safety of workers.
64. States
parties must also provide aspects of the right when workers are unable to
realize the right themselves. They have a role in creating an enabling labour
market environment and should, for example, adapt the work place and equipment
for persons with disabilities in the public sector and provide incentives for
the private sector to do so. States could establish non-contributory social
security programmes for certain workers, such as workers in the informal economy,
to provide benefits as well as protection against accidents and disease at
work.
Core
obligations
65. States
parties have a core obligation to ensure the satisfaction of, at the very
least, minimum essential levels of the right. Specifically, this requires
States parties to:
(a) Guarantee
through law the exercise of the right without discrimination of any kind as to
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth, disability, age, sexual orientation, gender
identity, intersex status, health, nationality, or any other status;
(b) Put
in place a comprehensive system to combat gender discrimination at work,
including relating to remuneration;
(c) Establish
in legislation and in consultation with workers and employers, their
representative organizations and other relevant partners, minimum wages that
are non-discriminatory and non-derogable, fixed taking into consideration
relevant economic factors and indexed to the cost of living so as to ensure a
decent living for workers and their families;
(d) Adopt
and implement a comprehensive national policy on occupational safety and
health;
(e) Define
and prohibit harassment, including sexual harassment at work through law,
ensure appropriate complaints procedures and mechanisms and establish criminal
sanctions for sexual harassment;
(f)
Introduce and enforce minimum standards in
relation to rest, leisure, reasonable limitation of working hours, paid leaves
and public holidays.
International
assistance and cooperation
66. All
States must take steps individually and through international assistance and
cooperation, especially economic and technical, with a view to achieving
progressively the full realization of the right. It is particularly incumbent
upon those States which are in a position to assist others in this regard. International
assistance and cooperation is a means of transferring knowledge and technology
and a tool for States to maximize available resources for the full realization
of Covenant rights.
67. Where
a State party is not in a position to meet its obligations to realize the
right, it must seek international assistance. Depending on the availability of
resources, States parties should respond to such requests by providing economic
and technical assistance and technology transfer, and promoting transnational
dialogue between employer and worker organizations, among other measures. Such
assistance should be sustainable, culturally appropriate and provided in a
manner consistent with human rights standards. Economically developed States
parties have a special responsibility for, and interest in, assisting
developing countries in this regard.
68. States
parties should avail themselves of technical assistance and cooperation of
international organizations, in particular the ILO. When preparing reports,
States parties should use the extensive information and advisory services
provided by the ILO for data collection and disaggregation.
69. States
parties must refrain from acts or omissions that interfere, either directly or
indirectly, with
the realisation of the right to just and favourable conditions
of work in other countries. This is particularly relevant where a State party
owns or controls an enterprise or provides substantial support and services to
an enterprise operating in another State party.[49] To
this end, the State party should respect relevant host-country legislation that
complies with the Covenant. Where the home-country has stronger legislation,
the State party should seek to maintain similar minimum standards in the
host-country as much as practicable. State parties should also require respect
for the right to just and favourable conditions of work by individuals and
enterprises based extra-territorially with which they conduct commercial
transactions.[50]
70. States
parties should take measures, including legislative measures, to clarify that
their nationals as well as enterprises domiciled in their territory and/or
jurisdiction are required to respect the right throughout their operations
extra-territorially.[51] This
responsibility is particularly important in States with advanced labour law
systems as home-country enterprises can help to improve standards for working
conditions in host countries. Similarly, in conflict and post-conflict
situations, States parties can have an important regulatory and enforcement role
and support individuals and enterprises to identify, prevent and mitigate risks
to just and favourable conditions of work through their operations.[52] States
parties should introduce appropriate measures to ensure that non-State actors
domiciled in the State party are accountable for violations of the right to
just and favourable conditions of work extra-territorially and that victims
have access to a remedy. States parties should also provide guidance to
employers and enterprises on how to respect the right extra-territorially.[53]
71. States
parties acting as members of relevant international organizations should also
respect the right. States parties that are members of international financial
institutions, notably the International Monetary Fund, the World Bank, and
regional development banks, should take steps to ensure the right is taken into
account in their lending policies, credit agreements and other international
measures. They should also ensure that the policies and practices of
international and regional financial institutions, in particular those
concerning structural and/or fiscal adjustment, promote and do not interfere
with the right.
72. States
parties should ensure that the right is given due attention in the conclusion
and implementation of international agreements, including in bilateral,
regional and multilateral trade and investment agreements. Similarly, States
parties should ensure that other international agreements do not negatively
affect the right to just and favourable conditions of work, for example, by
restricting the actions that other States parties could take to implement the
right. States parties that have not done so should consider ratifying core
human rights treaties and relevant ILO conventions.
73. States
parties should cooperate so as to protect the rights of their nationals working
in other States parties including through bilateral agreements with host
countries and sharing of recruitment practices. This is particularly important
to avoid abuse of migrant workers, including domestic workers, and to combat
trafficking. Similarly, States parties should seek international cooperation to
protect the rights of migrant workers who are employed by enterprises
registered in other States parties so as to enable them to enjoy just and
favourable conditions of work.
Obligations
of non-state actors
74. While
only States are parties to the Covenant, business enterprises, trade unions and
all members of society, have responsibilities to realize the right to just and
favourable conditions of work. This is particularly important in the case of
occupational safety and health given that the employer’s responsibility for the
safety and health of workers is a basic principle of labour law, intrinsically
related to the employment contract, but it also applies to other elements of
the right.
75. Business
enterprises, irrespective of size, sector, ownership and structure,[54]
should comply with laws that are consistent with the Covenant and have a
responsibility to respect the right to just and favourable conditions of work,[55]
avoiding any infringements and addressing any abuse of the right as a result of
their actions. In situations where a business enterprise has caused or
contributed to adverse impacts, the enterprise should remedy the damage or
cooperate in its remediation through legitimate processes that meet recognized
standards of due process.[56]
76. The
role of the United Nations agencies and programmes, in particular the ILO, is
also important. In conformity with articles 22 and 23 of the Covenant, the ILO
and other UN specialized agencies, the World Bank, regional development banks,
the International Monetary Fund, the World Trade Organization and other
relevant bodies as well as the UN Secretariat including OHCHR, should cooperate
effectively with States parties in the implementation of the right to just and
favourable conditions of work. When examining State party reports, the
Committee will consider the effects of any request for assistance by the State
party for the enjoyment of the right and the response given.
IV. Violations
and Remedies
77. States
parties must demonstrate that they have taken all necessary steps towards the
realization of the right within their maximum available resources; that the
right is enjoyed without discrimination; and that women enjoy conditions of
work not inferior to men, as well as equal pay for equal work and for work of
equal value. A failure to take such steps amounts to a violation of the
Covenant. In assessing whether State parties have complied with their
obligation to take steps, the Committee examines whether such steps are
reasonable and proportionate and whether they comply with human rights
standards and democratic principles.
78. Violations
of the right can occur through acts of commission, which means direct actions
of States parties. Adoption of labour migration policies that increase migrant
workers’ vulnerability to exploitation, or failure to prevent unfair dismissal
from work of pregnant workers in public service, or introduction of
deliberately retrogressive measures incompatible with core obligations are
examples of such violations.
79. Violations
can also occur through acts of omission, which means the failure by a State
party to take reasonable steps to fully realize the right for everyone, for
example by failing to enforce relevant laws and implement adequate policies, or
to regulate the activities of individuals and groups to prevent them from
violating the right, or to take into account its Covenant obligations when
entering into bilateral or multilateral agreements with other States,
international organisations or multinational corporations.
80. States
parties must put into place an adequate monitoring and accountability framework
by ensuring access to justice or to other effective remedies.
[1] UDHR, articles 23 and 24; ICERD, article 5;
CEDAW, article 11; CRC, article 32; ICRMW, article 25; CRPD, article 27. European
Social Charter (Revised), Part I, paragraphs 2, 3, 4, 7 and 8; Part II,
articles 2, 3 and 4; Charter of Fundamental Rights of the European Union,
articles 1483), 23, 31 and 32; Additional Protocol to the American Convention
on Human Rights, article 7; African Charter on Human and Peoples’ Rights,
article 15. The wording of the provisions in the various treaties differs. The
European instruments are broader in the protections offered while the African
Charter includes the narrower requirement of ‘equal pay for equal work’.
[2] Though
many ILO conventions relate directly and indirectly to
just and favourable conditions of work, for this General Comment, the Committee has identified the following as
relevant: Hours
of Work (Industry) Convention, 1919 (No.1); Weekly Rest (Industry) Convention
1921 (No.14); Minimum Wage-Fixing Machinery Convention 1928 (No.26); Hours of
Work (Commerce and Offices) Convention 1930
(No.30); Forty-Hour Week Convention 1935
(No.47); Protection of Wages Convention 1949 (No.95); Minimum Wage Fixing
(Agriculture) Convention 1951 (No.99); Equal Remuneration Convention 1951
(No.100); Weekly Rest (Commerce and Offices) Convention 1957 (No.106);
Discrimination (Employment and Occupation) Convention 1958 (No.111); Minimum
Wage Fixing Convention 1970 (No.131); Holidays with Pay Convention (Revised)
1970 (No.132); Minimum Age Convention 1973
(No.138); Hours of Work and Rest Periods (Road Transport) Convention 1979
(No.153); Occupational Safety and Health Convention 1981 (No.155); Protocol of 2002 to the Occupational Safety and
Health Convention 1981 (No.155); Workers with Family Responsibilities
Convention 1981 (No. 156); Night Work Convention 1990 (No.171); Part-Time Work
Convention 1994 (No.175); Maternity Protection Convention 2000 (No.183); The
Convention concerning the promotional Framework for Occupational Safety and
Health 2009 (No.187); Domestic Workers Convention 2011 (No.189).
[3] CESCR
General Comment No. 18, para.2, indicates the interconnection between the
right to work in a general sense in Article 6 of the Covenant, the recognition
of the individual dimension of the right to the enjoyment of just and
favourable conditions of work in Article 7 and the collective dimension in
Article 8.
[11] The Equal Remuneration Convention 1951
(No.100), article 1(b) refers to ‘equal remuneration for work of equal value’
as ‘rates of remuneration established without discrimination on the basis of
sex’. The Discrimination (Employment and Occupation) Recommendation, 1958 (No.
111) extends the principle of equal remuneration for work of equal value to
other grounds upon which discrimination is prohibited. In making an explicit reference to ‘without
distinction’ Article 7 goes beyond Convention No. 100
to protect against discrimination on
grounds other than sex.
[28] The Hours
of Work (Industry) Convention, 1919 (No.1), article 2 and the Hours of Work
(Commerce and Offices) Convention 1930
(No.30), article 3. While very wide in scope, they do not cover all areas of
economic activity such as agricultural and domestic workers that later ILO Conventions and Recommendations
take on board.
