I.
INTERNATIONAL AUTHORITIES AND PRECEDENTS 1.
Draft United Nations Declaration on the Rights of Indigenous Peoples
(UN 1994) Article 18: Indigenous peoples have the right
to enjoy fully all rights established under international labor law and
national labor legislation. Indigenous individuals have the
right not to be subjected to any discriminatory conditions of labor,
employment or salary. 2.
C 169, Convention on Indigenous and Tribal People (ILO Convention
1989) Article 20: 1. "Governments
shall, within the framework of national laws and regulations, and in
co-operation with the peoples concerned, adopt special measures to ensure
the effective protection with regard to recruitment and conditions of
employment of workers belonging to these peoples, to the extent that they
are not effectively protected by laws applicable to workers in general. 2. Governments shall do
everything possible to prevent any discrimination between workers belonging
to the peoples concerned and other workers, in particular as regards: (a) admission to employment,
including skilled employment, as well as measures for promotion and
advancement; (b) equal remuneration for work
of equal value; (c) medical and social
assistance, occupational safety and health all social security benefits and any other occupationally related
benefits, and housing; (d)
the right of association and freedom for all lawful trade union
activities, and the right to conclude collective agreements with employers
or employers' organizations. 3. The measures taken
shall include measures to ensure: (a) that workers belonging to
the peoples concerned, including seasonal, casual and migrant workers in
agricultural and other employment, as well as those employed by labor
contractors, enjoy the protection afforded by national law and practice to
other such workers in the same sectors, and that they are fully informed of
their rights under labor legislation and of the means of redress available
to them; (b) that workers belonging to
these peoples are not subjected to working conditions hazardous to their
health, in particular through exposure to pesticides or other toxic
substances; (c) hat workers belonging to
these peoples are not subjected to coercive recruitment systems, including
bonded labor and other forms of debt servitude; (d) that workers belonging to
these peoples enjoy equal opportunities and equal treatment in employment
for men and women and protection from sexual harassment. 4. Particular attention
shall be paid to the establishment of adequate labor inspection services in
areas where workers belonging to the peoples concerned undertake wage
employment, in order to ensure compliance with the provisions of this Part
of this Convention." 3.
American Convention on Human Rights (OAS 1969) Article 16(1): “Everyone has
the right to associate freely for ideological, religious, political,
economic, labor, social, cultural, sports, or other purposes.” 4.
American Declaration on the Rights and Duties of Man (UN 1948) Article XIV: “Every person has
the right to work.” “Every
person who works has the right to receive such remuneration as will, in
proportion to this capacity and skill, assure him a standard of living
suitable for himself and for his family.” Article XXII: “Every person has
the right to associate with others to promote, exercise, and protect the
legitimate interests of a political, economic, religious, social, cultural,
professional, labor union or other nature.” 5.
Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social And Cultural Rights (OAS 1988) Article 6: Right to Work 1. Everyone has the
right to work, which includes the opportunity to secure the means for living
a dignified and decent existence by performing a freely elected or accepted
lawful activity. 2. he State Parties
undertake to adopt measures that will make the right to work fully
effective, especially with regard to the achievement of full employment,
vocational guidance, and the development of technical and vocational
training projects, in particular those directed to the disabled. The States
Parties also undertake to implement and strengthen programs that help to
ensure suitable family care, so that women may enjoy a real
opportunity to exercise the right to work. Article 7: Just, Equitable, and
Satisfactory Conditions of Work "The States Parties to this
Protocol recognize that the right to work to which the foregoing article
refers presupposes that everyone shall enjoy that right under just,
equitable, and satisfactory conditions, which the States Parties undertake
to guarantee in their internal legislation, particularly with respect to: a. emuneration which
guarantees, as a minimum, to all workers dignified and decent living
conditions for them and their families and fair and equal wages for equal
work, without distinction; b. he right of every
worker to follow his vocation and to devote himself to the activity that
best fulfills his expectations and to change employment in accordance with
the pertinent national regulations; c. he right of every
worker to promotion or upward mobility in his employment, for which purpose
account shall be taken of his qualifications, competence, integrity and
seniority; d. tability of
employment, subject to the nature of each industry and occupation and the
causes for just separation. In cases of unjustified dismissal, the worker
shall have the right to indemnity or to reinstatement on the job or any
other benefits provided by domestic legislation; e. afety and hygiene at
work; f. he prohibition
of night work or unhealthy or dangerous working conditions and, in general,
of all work which jeopardizes health, safety, or morals, for persons under
18 years of age. As regards minors under the age of 16, the work day shall
be subordinated to the provisions regarding compulsory education and in no
case shall work constitute an impediment to school attendance or a
limitation on benefiting from education received; g. reasonable limitation
of working hours, both daily and weekly. The days shall be shorter in the
case of dangerous or unhealthy work or of night work; h. est, leisure and paid
vacations as well as remuneration for national holidays." Article 8: Trade Union Rights 1. The States Parties
shall ensure: a. he right of workers
to organize trade unions and to join the union of their choice for the
purpose of protecting and promoting their interests.
As an extension of that right, the States Parties shall permit trade
unions to establish national federations or confederations, or to affiliate
with those that already exist, as well as to form international trade union
organizations and to affiliate with that of their choice. The States Parties
shall also permit trade unions, federations and confederations to function
freely; b. The right to strike. 2. The exercise of the
rights set forth above may be subject only to restrictions established by
law, provided that such restrictions are characteristic of a democratic
society and necessary for safeguarding public order or for protecting public
health or morals or the rights and freedoms of others. Members of the armed
forces and the police and of other essential public services shall be
subject to limitations and restrictions established by law. 3. No one may be
compelled to belong to a trade union." Article 9: Right to Social
Security 1. Everyone shall have
the right to social security protecting him from the consequences of old age
and of disability which prevents him, physically or mentally, from securing
the means for a dignified and decent existence.
In the event of the death of a beneficiary, social security benefits
shall be applied to his dependents. 2. In the case of
persons who are employed, the right to social security shall cover at least
medical care and an allowance or retirement benefit in the case of work
accidents or occupational disease and, in the case of women, paid maternity
leave before and after childbirth. 6. International Covenant on Civil and Political Rights (UN 1966) Article
22(1): “Everyone shall have the right to freedom of association with
others, including the right to form and join trade unions for the protection
of his interests." 7.
International Covenant on Economic, Social and Cultural Rights (UN
1966) Article 6: 1. The State 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." Article 7: 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 this
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 limitations of working hours and periodic holidays with pay, as
well as remuneration for public holidays." Article 8: “The State 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. 8.
International Convention on the Elimination of all Forms of Racial
Discrimination (UN 1965) Article
5: States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of
everyone...(e)(i) to work, to free choice of employment, to just and
favourable conditions of work, to protection against unemployment, to equal
pay for equal work, to just and favourable remuneration...(ii) to form and
join trade unions. 9.
Universal Declaration of Human Rights (UN 1948) Article 23: “1. Everyone has
the right to work, to free choice of employment, to just and favorable
conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to
equal pay for equal work. 3.
Everyone who works has the right to just and favourable remuneration
ensuring for himself and his family and existence worthy of human dignity,
and supplemented, if necessary,
by other means of social protection. 4.
Everyone has the right to form and to join trade unions for the protection
of his interest.” Article
24: “Everyone has the right to rest and leisure, including reasonable
limitations of working hours and periodic holidays with pay.” 10.
African
Charter on Human and Peoples’ Rights (Banjul Charter 1981) Article 15: “Every individual
shall have the right to work under equitable and satisfactory conditions,
and shall receive equal pay for equal work.” 11.
European Convention for the Protection of Human Rights and
Fundamental Freedoms (ROME 1950) Article
11(1): “Everyone has the right to freedom of peaceful assembly and freedom
of association with others, including the right to form and join trade
unions for the protection of his interests.” 12.
Copenhagen Declaration on Social Development and Programme of Action
of the World Summit for Social Development (Copenhagen, Denmark, March 6-12,
1995) Annex II:
Programme of Action of the World Summit for Social Development
Content. Chapter III. Expansion of
Productive Employment and Reduction of Unemployment -Para.
D(61): The full participation of indigenous people in the labour market and
their equal access to employment opportunities requires developing
comprehensive employment, education and training programmes that take
account of the particular needs of indigenous people." 13. European
Social Charter (Strasbourg, 3.V.1996) The Parties accept as the aim of
their policy, to be pursued by all appropriate means both national and
international in character, the attainment of conditions in which the
following rights and principles may be effectively realized: 1. Everyone shall have
the opportunity to earn his living in an occupation freely entered upon. 2. workers have the
right to just conditions of work. 3. All workers have the
right to safe and healthy working conditions. 4. All workers have the
right to a fair remuneration sufficient for a decent standard of living for
themselves and their families. 5. All workers and
employers have the right to freedom of association in national or
international organizations for the protection of their economic and social
interests. 6. All workers and
employers have the right to bargain collectively. 7. Children and young
persons have the right to a special protection against the physical and moral hazards to which they are
exposed. 8. Employed women, in
case of maternity, have the right to a special protection. 9. Everyone has the
right to appropriate facilities for vocational guidance with a view to
helping him choose an occupation suited to his personal aptitude and
interests. 10. Everyone has the right to
appropriate facilities for vocational training. 11. Everyone has the right to
benefit from any measures enabling him to enjoy the highest possible
standard of health attainable. 12. All workers and their
dependents have the right to social security. 13. Anyone without adequate
resources has the right to social and medical assistance. 14. Everyone has the right to
benefit from social welfare services. 15. Disabled persons have the
right to independence, social integration and participation in the life of
the community. 16. The family as a fundamental
unit of society has the right to appropriate social, legal and economic
protection to ensure its full development. 17. Children and young persons
have the right to appropriate social, legal and economic protection. 18. The nationals of any one of
the Parties have the right to engage in any gainful occupation in the
territory of any one of the others on a footing of equality with the
nationals of the latter, subject to restrictions based on cogent economic or
social reasons. 19. Migrant workers who are
nationals of a Party and their families have the right to protection and
assistance in the territory of any other Party. 20. All workers have the right
to equal opportunities and equal treatment in matters of employment and
occupation without discrimination on the grounds of sex. 21. Workers have the right to
be informed and to be consulted within the undertaking. 22. Workers have the right to
take part in the determination and improvement of the working conditions and
working environment in the undertaking. 23. Every elderly person has
the right to social protection. 24. All workers have the right
to protection in cases of termination of employment. 25. All workers have the right
to protection of their claims in the event of the insolvency of their
employer. 26. All workers have the right
to dignity at work. 27. All persons with family
responsibilities and who are engaged or wish to engage in employment have a
right to do so without being subject to discrimination and as far as
possible without conflict between their employment and family
responsibilities. 28. Workers’ representatives
in undertakings have the right to protection against acts prejudicial to
them and should be afforded appropriate facilities to carry out their
functions. 29. All workers have the right
to be informed and consulted in collective redundancy procedures. 30. Everyone has the right to
protection against poverty and social exclusion. 31. Everyone has the right to
housing." II.
DOMESTIC AUTHORITIES AND PRECEDENTS 14. Argentina Constitución de la Nación Argentina Artículo 14: "Todos los habitantes de la Nación
gozan de los siguientes derechos conforme a las leyes que reglamenten su
ejercicio, a saber: de trabajar y ejercer toda industria licita; de navegar
y comerciar; de peticionar a las autoridades; de entrar, permanecer,
transitar y salir del territorio argentino; de publicar sus ideas por la
prensa sin censura previa; de usar y disponer de su propiedad; de asociarse
con fines útiles; de profesar libremente su culto; de enseñar y
aprender." 15.
Canada Royal
Commission on Aboriginal Peoples, 4.6.18 The
Royal Commission recommends that: Government employment policies
accommodate the demands of traditional economic activities by increasing
opportunities for job sharing, periodic leave and shift work. 2.5.36 With respect to employment
development, the Commission recommends that Federal and provincial
governments fund a major 10-year initiative for employment development and
training that is aimed at preparing Aboriginal people for much greater
participation in emerging employment opportunities; sponsored by Aboriginal
nations or regionally based Aboriginal institutions; developed in
collaboration with public and private sector employers and educational and
training institutions; and mandatory for public sector employers. 23.2.1 The objective of this Article is
to increase Inuit participation in government employment in the Nunavut
Settlement Area to a representative level. It is recognized that the
achievement of this objective will require initiatives by Inuit and by
Government. 16.
Panama Constitución Política de la República de
Panamá Artículo
63: A trabajo igual en idénticas condiciones, corresponde siempre igual
salario o sueldo, cualesquiera que sean las personas que lo realicen, sin
distinción de sexo, nacionalidad, edad, raza, clase social, ideas políticas
o religiosas. 17.
Paraguay Constitución Nacional de Paraguay Artículo
88: De la no discriminación. No
se admitirá discriminación alguna entre los trabajadores por motivos étnicos,
de sexo, edad, religión, condición social y preferencias políticas o
sindicales. El trabajo de las personas con limitaciones o
incapacidades físicas o mentales será especialmente amparado. 18. Peru Ley 22.175 Ley de Comunidades Nativas y de
Desarrollo de las Regiones de Selva y Ceja de Selva Artículo
23: Los funcionarios y empleados públicos, quedan obligados, bajo
responsabilidad civil y penal, a dar curso inmediato a las denuncias
presentadas por comuneros nativos referentes al incumplimiento de la
legislación laboral, irregularidades en la tramitación de la documentación
de identidad personal, ocupación o explotación ilícita de recursos
naturales pertenecientes a la comunidad u otros hechos o acciones que le
perjudique.
19.
Guatemala Constitución Política de la República de Guatemala
Artículo
69: "Traslación de trabajadores y su protección. Las actividades laborales que impliquen traslación de
trabajadores fuera de sus comunidades, serán objeto de protección y
legislación que aseguren las condiciones adecuadas de salud, seguridad y
previsión social que impidan el pago de salarios no ajustados a la ley, la
desintegración de esas comunidades y en general todo trato
discriminatorio".
20.
St. Vincent and St. Grenadines Constitution of St. Vincent and
St. Grenadines (1979) Article
11(1): "Except with his own consent, a person shall not be hindered in
the enjoyment of his freedom of assembly and association, that is to say,
his tight to assemble freely and associate with other persons and in
particular to form or belongs to trade unions or other associations for the
protection of his interests." 21.
Suriname Constitution of Suriname Article
28: "All employees have, independent of age, sex, race, nationality,
religion or political opinions, the right to: a. Remuneration for
their work corresponding to quantity, type, quality and experience on the
basis of equal pay for equal work; b. The performance of
their task under humane conditions, in order to enable self-development; c. Safe and healthy
working condition; d. Sufficient rest and
recreation." Article 30: "Employees are
free to establish trade unions to foster their rights and interests. For the
exercise of the rights of trade unions the following freedoms are
guaranteed indiscriminately: a.
Freedom to join or not to join a trade union; b.
The right to participate in trade union activities. Article 31(3): "Trade unions
shall have the right to conclude collective labor agreements." 22. Venezuela Constitución Política de Venezuela Artículo
123: “Los pueblos indígenas tienen derecho a mantener y promover sus
propias prácticas económicas basadas en la reciprocidad, la solidaridad y
el intercambio; sus actividades productivas tradicionales, su participación
en la economía nacional y a definir sus prioridades.
Los pueblos indígenas tienen derecho a servicios de formación
profesional y a participar en la elaboración, ejecución y gestión de
programas específicos de capacitación, servicios de asistencia técnica y
financiera que fortalezcan sus actividades económicas en el marco del
desarrollo local sustentable. El
Estado garantizará a los trabajadores y trabajadoras pertenecientes a los
pueblos indígenas el goce de los derechos que confiere la legislación
laboral”.
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