Compromising the right to work

In democratic and economically advanced economies such as the Nordics, the main challenge to respect of the right to work is not lack of practical, moral or philosophical justification of the principle. It is not even lack of employment opportunities per se, as the general unemployment rate is generally in single digits. For example, from 2000 to 2015, the overall unemployment rate stood at between five and eight per cent.⁵⁰⁰ However, the right to work can still be regarded as ideologically driven, because it creates positive obligations for States to intervene, may undermine the enjoyment of individual freedom and distorts the functions of the free market.⁵⁰¹ Such a criticism cannot be backed by modern human rights normative expectations.

Refugees are not inclined to any particular ideology as the majority are seeking protection from persecution. Individual freedom is better enjoyed if a person enjoys other freedoms, such as being able to contribute to society through employment. Lastly, the extent to which the Nordics labour markets are ‘free’ (fully competitive) is hard to ascertain. With strong trade unions that intervene on behalf of existing workers through for example, collective wage agreements, block hiring of new employees, etc., it is hard to conclude with certainty that the laissez-faire principle does operate. Given the significance of the right to work as an important

498 V Mantouvalou (ed), The Right to Work: Legal and Philosophical Perspectives (Hart Publishing 2015) 1;

CESCR, General Comment Number 18: Interpretation of Article 6 of ICESCR (adopted 24 November 2005 E/C.12/GC/186)

499Hugh, ‘Is There a Human Right to Work?’ in V Mantouvalou (ed), The Right to Work: Legal and Philosophical Perspectives (Hart Publishing, 2015)17-38, 28.

500 Nordic Council of Ministers, Nordic Statistics 2016, 17 <https://norden.diva-portal.org/smash/get/diva2:1040725/FULLTEXT03.pdf > accessed 09 August 2017.

501 E Krause and A Rosas, ‘Economic, Social and Cultural Rights as Legal Rights: A Universal Challenge’ in A Eide, C Krause and A Rosas (eds), Economic Social, and Cultural Rights: A Textbook (Dordrecht, Martinus Nijhoff 1995).

international human rights principle, and the social consequences of ignoring it, States must intervene positively so that social justice is realized.

3.3.2 Free labour market imperfections

There are numerous examples of how the right to work is compromised. For example, high or long-term unemployment and the lack of secure employment may work in conjunction with other free labour market imperfections, such as discrimination against certain populations, to violate the right to work of refugees, the most vulnerable groups in the Nordics. Other vulnerable groups include women,⁵⁰² older people,⁵⁰³ migrant workers and all members of their family,⁵⁰⁴ young people entering the labour market for the first time without work experience,⁵⁰⁵ people with disabilities,⁵⁰⁶ etc. People in such circumstances can be induced to seek work in informal sectors of the economy that typically lack protection. Under casual and zero hours contracts, for instance, the employer unilaterally determines when work is required and the employee is paid only for those hours actually worked.⁵⁰⁷ Most refugees, just like other

vulnerable groups in the Nordic society, usually find themselves stranded in the Gap because of a lack of employment opportunities, or over-represented in precarious jobs with poor terms.

An employee who is always ‘on call’ but paid only for the work performed is kept waiting and not earning money during that period.⁵⁰⁸ They and their direct dependents suffer poverty (monetary and material) because their earnings are lower than if the employment was full-time or constantly available. Under casual and zero hours contracts, employers can easily adjust their labour costs and pass the risk of a lack of work onto their employees.⁵⁰⁹ Under such circumstances, employees cannot make concrete plans for their lives or those of their

502CESCR, General Comment Number 18, para 13.

503 Ibid para 16.

504 Ibid para 18.

505 Ibid para 14.

506 Ibid para 17.

507 Hugh, ‘Progress towards the Right to Work in the United Kingdom’ in V Mantouvalou (ed), The Right to Work:

Legal and Philosophical Perspectives (2015) 227-54, 236.

508 Ibid.

509 Ibid 237.

dependents. Except under certain circumstances, where an employee decides to work less due to, for example, ill-health, flexible jobs like temporary, casual and labour pool work, etc. frequently represent a violation of the right to work because they are designed, to a large extent, to benefit employers and not the workers.

3.3.3 Equality and non-discrimination

In democratic and economically advanced countries like the Nordics, the practical, moral and philosophical justifications for the right to work are not lacking.⁵¹⁰ As noted, overall

unemployment rates are generally low, but for refugees, the percentage is, conservatively, three times higher.⁵¹¹ The long-term unemployment rates for most vulnerable groups like refugees is always in double figures. There are many plausible reasons for this but discrimination against non-Europeans on the grounds of ethnicity, religion, etc., could be taking its toll. In such circumstances, the principles of equality and non-discrimination, principles so fundamental in international human rights law, are tested. Non-discrimination as a principle, for instance, is an ius cogens in many international and European jurisdictions.⁵¹² States are obliged to secure respect for non-toleration of discriminatory situations and for protection of human rights without discrimination. Although international human rights law emanates from human conscience, it is nonetheless a reflection of objective justice, embodies superior values, and rescues vulnerable groups from state voluntarism and unilateralism.⁵¹³

States are justified in taking affirmative action purposely to eliminate or diminish conditions that perpetuate discrimination.⁵¹⁴ International human rights law obligates States to prevent discrimination even before it is detected. This is because all human beings are born equal

510Except for Sweden, all the Nordic constitutions contain a paragraph on the right to work. Sweden, on the other hand, is bound by the Revised European Social Charter, Article 1 which specifies that the right to work is fundamental, and must be protected by law.

511 O Stokke and S Gedde-Dahl, ‘20 år. 23 handlingsplaner. 672 tiltak. Men fortsatt er arbeidsledigheten blant innvandrere tre ganger så høy’ Aftenposten (24 November 2012). (‘20 years, 23 action plans, and 627 measures:

but unemployment among immigrants is still three times so high).

512 Inter-American Court of Human Rights (IACtHR), Advisory Opinion Number 18 (2003) in Y Haeck et al. (eds), Human Realisation of Human Rights: When Theory Meets Practice. Studies in Honour of Leo Zwaak (2013) 25.

513 AAC Trindade, ‘International Law for Humankind – Towards a New Jus Gentium’ in Y Haeck et al. (eds), Human Realisation of Human Rights: When Theory Meets Practice. Studies in Honour of Leo Zwaak (Intersentia 2013) 24.

514 CESCR, General Comment Number 18, para 12 (b) (i). See also M Langford (ed), Social Rights Jurisprudence:

Emerging Trends in International and Comparative Law (CUP 2008) 24.

in dignity, and should therefore be treated with equal concern. Giving everyone equal access to opportunities without discrimination, as justice and fairness require, can lead to equality of outcomes.⁵¹⁵ Although the European Convention on Human Rights (ECHR), which covers the Nordics, contains no provision of the right to work, excluding an applicant from seeking jobs even in the private sector can be tantamount to a violation of Article 8 protecting their individual rights.⁵¹⁶ As has been noted, ‘it is, after all, in the course of their working lives that the majority of people have significant, if not the greatest, opportunity of developing relationships with the outside world’.⁵¹⁷

Furthermore, the European Court of Human Rights (ECtHR) has confirmed in two cases that access to work is a right to be protected.⁵¹⁸ In the first case, ie Sidabras and Džiautas v.

Lithuania, the European Court of Human rights, ruled that a violation of Article 14 of the European Convention on Human Rights (ECHR) (prohibition of discrimination), taken in conjunction with Article 8 (respect for private life), had occurred. Both applicants had been dismissed from their new jobs and their future employment opportunities thwarted because they had the status of ‘former KGB officers’, something that meant restriction of their employment rights. In the second case, ie Thlimmenos v.Greece, a member of the Jehovah’s Witnesses had been excluded from seeking a job as an accountant because he had previously been convicted of insubordination for refusing to wear a military uniform at a time of general mobilization. The Court ruled that Article 14 of the ECHR taken in conjunction with Article 9 (freedom of thought, conscience and religion) of the same Convention, had been violated. Still, cases about unfair dismissals and protection of wages (salaries) and other forms of payment can be lodged and claimed successfully.⁵¹⁹

However, if such anti-discrimination laws were to be employed to protect refugees under the Gap, they would have to take a different form from the one they have today. The right to

515 A Clapham, Human Rights: A Very Short Introduction (OUP 2007), 143.

516IE Koch, ‘The European Convention on Human Rights and the Protection of Socio-Economic Demands’ in A Mihr and M Gibney, The SAGE Handbook of Human Rights (SAGE Publication 2014) 673.

517 Case of Niemietz v Germany, App No. 13710/88 (ECtHR, 16 December 1992 para 29).

518 Cases of Sidabras and Džiautas v. Lithuania, App No. 55480/00 and 59330/00 (ECtHR, 27 July 2004);

Thlimmenos v. Greece, App No. 34369/97 (ECtHR, 12 January 1998).

519 For case law, see A Mihr and M Gibney, The SAGE Handbook of Human Rights Vol 2 (SAGE Publications 2014) 689.

work can be loose in scope, content, and moral and legal obligations. That is why States and employers can find ways of circumventing and circumscribing it. Much as the right to work is legally binding in international human rights law, the word ‘work’ itself needs further analysis.

In international human rights law, work is a ‘complex normative aggregate’; roughly understood as provision of a service for and under the direction of another in return for remuneration.⁵²⁰ A closer study of how work came to occupy Article 23 of the UDHR can shed light on its importance.