Committee
on Economic, Social and Cultural Rights
Thirty-First Session
Geneva, Switzerland
Submission
by IWRAW Asia Pacific
24 November 2004
Madam Chair
On behalf
of the International Women’s Rights Action Watch, I express
my thanks to you for giving us this opportunity to address the
Committee on Economic, Social and Cultural Rights on the occasion
of the General Day of Discussion on article 6 of the Covenant
on the right to work. We are pleased to offer some ideas for consideration
of the Committee in drafting a general comment on the right to
work. In addressing this right, there are many important considerations.
First of all, the respect for and the protection and fulfilment
of this right needs to take place within the framework of equality
and non-discrimination. The ICESCR is clear on these principles.
Article 2 obligates States parties to undertake a guarantee of
all rights in the Covenant without discrimination, including that
which may occur on the basis of sex; and Article 3 speaks to the
obligation of States parties to enable women and men to enjoy
equal rights. Compliance with these two articles would require
paying special attention to the elimination of discrimination
against women. This is because the prevalent situation in all
parts of the world is that it is women who lag behind men in the
enjoyment of all rights. While it is a fact that certain groups
of men may also be denied the exercise of their right on several
grounds, it is also true that women of the same group usually
suffer greater deprivations than their male counterparts, on the
basis not only of their social group but also on the basis of
their gender. This fact throws up a set of complexities and attendant
obligations that compels in particular the elimination of discrimination
against women.
Treaty obligation
requires the practical realisation of rights. This means that
in the context of the right to work and the elimination of discrimination
against women, it is not enough to create employment opportunities
alone. The obligation entails a rigorous analysis of factors that
impede women’s access to the opportunities to work that
have been created and removing or compensating for them thus implementing
a substantive model of equality that requires :
Understanding
the concept of equality of access is critical. This obligates
an acknowledgement that opportunity presented through formal equality,
manifests itself in a gender-neutral framing of policy or law
that may actually discriminate against women, even though discrimination
was not intended. A development project implemented in a South
Asian country will illustrate this. This was an aqua culture project
that presented itself as an equal opportunity project. It offered
an opportunity to men and women on the same basis, to have access
to training and other technical inputs to become fish farmers.
The criteria for participation that applied equally to women and
men were that aspiring participants should own ponds. (Ponds were
a natural feature of the geography of the region and were owned
by people as property.) This automatically disqualified women
who did not inherit such property through discriminatory legal
provisions. The project’s neutral requirement that participants
should own ponds constituted an unintended discrimination against
women. Laws and policies need to be sensitive to the disadvantages
that women face as women, so that access to opportunity is not
denied unintentionally.
Another example
that comes from Australia illustrates how neutral policies may
disadvantage women who may be in a weak position because of the
effect of past discrimination. A so called neutral retrenchment
policy of ‘last in first out’ was found to be discriminatory
against women by the courts because it did not take into consideration
the effect of past discriminatory recruitment policies of the
company. The women were in the position of ‘last in’
because the company had a policy several years ago of not recruiting
women. Differential rules need to exist under such circumstances
in the interest of substantive equality.
Where women
are concerned a complex web of discrimination operates involving
several institutions starting with the family. These discriminations
are justified by prevalent social norms. For example, a social
norm that continues to operate is that men are breadwinners and
women are homemakers. On the basis of this norm, a possible denial
of equal educational chances to girl children by the family, leads
to fewer options in the work place or the fact women are solely
responsible for child up bringing leads to disapproval of working
mothers. As a result women are unable to be competitive in the
market which exploits them as cheap labour as they are not seen
as needing the same wages as men and a cycle of discrimination
sets in. Hence cultural stereotyping that entrenches women’s
disadvantage must be addressed and pro-active measures need to
be in place to ensure that women’s disadvantage is not further
exacerbated.
In the face
of the fact that such a web of discrimination exists, formal equality
measures such as laws of equal pay for equal work may have little
effect. This is because, the lack of social policy for child care
or measures for combining family responsibility with work responsibilities
such as career breaks, flexible working hours and child care prohibit
many women from even taking up a job. When they do, because they
are seen as secondary wage earners and their competitiveness in
the job market is restricted by inappropriate education, or lack
of mobility, or even the lack of personal autonomy to make decisions
for themselves, they are prevented from accessing opportunities
for upward mobility in the employment sphere. Hence women are
often bunched up in low paying jobs or segregated in sectors that
have little options for upward mobility. All of this is compounded
by the fact that there are few women in decision making positions
that will effect proactive women centred policies.
Under these
circumstances, the existence of an equal pay for equal work does
not really benefit women. This is not to undervalue the principle
of equal pay for equal work but to say that it is not enough.
More holistic approaches are needed that will take into consideration
the gendered experiences of women’s lives, and put in place
mechanisms that will not only ask whether there are laws that
guarantee equal pay for equal work but also whether there are
laws for equal pay for work of equal value. This is essential
as because of the social construction of people’s lives,
women and men may be structured into different job categories,
seen as appropriate for women and men. This requires laws on equal
pay for work of equal value. The holistic approaches must also
create programmatic measures that provide adequate maternity benefits,
free women from child caring responsibilities, that make special
provisions to ensure personal security in the work place and freedom
sexual harassment, that ensure affirmative action for skilling
and training and for upward job mobility and have long term measures
to change cultural patterns of conduct that place women and men
in stereotypical roles that disadvantage women and finally to
ensure that structures that facilitate all of this is not male
dominated. .
States parties
must address the particularities of discrimination, current and
past and the disadvantages and vulnerabilities women face, and
come up with specific legal responses. An understanding of unintended
discrimination is essential for this. For example, in another
South Asian country, a government policy to accelerate the appointment
of women in senior decision making civil service positions was
at first not successful as there were not enough women to satisfy
the eligibility criteria of 10 years experience as officers in
civil service This was the result of past discrimination when
a then discriminatory policy denied women appointment as officers
in civil service. They could only be appointed as clerks or typists.
This discriminatory policy was subsequently repealed and women
were appointed as officers. However this meant that it would take
10 years before women could become eligible to be appointed into
senior decision-making positions. This is the effect of past discrimination.
To overcome this problem, the government concerned, then adopted
a different rule for women by which women with 10 years experience
in the private sector or who were senior lecturers in the university
could be appointed laterally as senior civil servants while men
had to climb up the ladder vertically within civil service.
This constitutes
an example of how a formal approach that merely created a policy
that women and men are equally eligible to enjoy a certain right
will not necessarily benefit women who are in a position of inequality.
Creative measures are needed to implement a substantive equality
approach, in this instance through the adoption of a temporary
special measure, to enable women to overcome current discrimination
and the effect of past discrimination in order to accelerate de
facto equality. Creative temporary special measures are a crucial
part of the substantive equality approach.
Secondly equality
between women and men has to be achieved in all aspects of the
sphere of work. Including wages, benefits, and conditions of work,
training, promotion and social security in order to fulfil obligations
under articles 7 and 9 of the ICESCR. Even in developed countries
there still persists the phenomena that women do not get into
senior management positions and wage differentials to the disadvantage
of women persist. States should be obligated to gather data on
the relative positions of women and men in the job market and
to develop equality plans setting indicators and benchmarks for
the progressive realisation of equality rights in all aspects
of work. The implementation of temporary special measures needs
to be a requisite component of such a plan.
Women’s
position in trade unions also needs attention under article 8.
Their absence in leadership positions in the unions needs to be
remedied through policy measures as it affects the negotiation
of policies that benefit women.
A very important
aspect requiring obligations of respect for, protection and fulfilment
of rights is the ensuring of the rights of people working in the
informal sector. Women dominate this sector because of their lack
of competitiveness and their need for flexibility of time.
A further
obligation of the state that needs to be highlighted is the regulation
of the private sector. This is especially so in this era of privatisation
when increasingly, job opportunities are being created by private
enterprise. It has been seen that in the former socialist countries
that had effective labour protection, workers rights are being
eroded with the advent of free enterprise.
There also
seems to be a lack of competency to enforce good labour laws and
policies. States parties should be required to pay due attention
to the enforcement of labour laws through the setting up of effective
labour tribunals and complaints mechanisms that are accessible,
fast, fair, effective and gender sensitive. Competency for this
including the implementation of a substantive equality approach
must be developed through adequate training.
Finally the
monitoring of the effectiveness of all these measures, the tracking
of who benefits and who falls between the cracks and the gathering
of relevant data for this are essential aspects of state obligation
Submission made by
Shanthi Dairiam
Executive Director
