Equality and Empowerment for Decent Work
Hepple, Bob, International Labour Review
Equality is at the heart of the notion of "decent work", the ILO's exciting new vision to promote "opportunities for women and men to obtain decent and productive work, in conditions of freedom, equity, security and human dignity" (ILO, 1999, p. 3). In this context - and with national and local action increasingly moving away from negative duties to avoid discrimination towards positive and inclusive duties to promote equality - this article argues that the best model of regulation is one which involves the empowerment or participation of the disadvantaged groups. To that end it begins by deconstructing the idea of equality and goes on to explore this idea in the context of other fundamental rights, explaining why positive duties to promote equality are needed. Finally, it examines some regulatory models for implementing duties to promote equality and how these can be used as vehicles of empowerment.
The concept of equality
The subject of equality is topical across the globe. The ILO's Discrimination (Employment and Occupation) Convention, 1958 (No. Il 11), a remarkably far-sighted and comprehensive instrument, is one of the most widely ratified of all ILO Conventions, and one which continues to inspire national legislation and other measures. The ILO Declaration on Fundamental Principles and Rights at Work of 18 June 1998 declares that "the elimination of discrimination in respect of employment and occupation" is an obligation of all member States, whether or not they have ratified the relevant Conventions. I
In the European Union, a comprehensive anti-discrimination directive addressed to the Member States under Article 13 of the Treaty establishing the European Community, as amended by the Treaty of Amsterdam, was adopted by the Council of Ministers in November 2000.2 The European Union Charter of Fundamental Rights, which was adopted at Nice in December, has a separate chapter devoted to equality. 3 The Council of Europe, for its part, opened for signature on 4 November 2000 a new Protocol (No. 12) to the European Convention on Human Rights, which plugs a gap in that Convention. At present the Convention is breached only when there is discrimination in the enjoyment of a right it expressly protects. But because it makes no provision for the right to employment, for example, the Convention affords no protection in respect of discrimination in employment. The new Protocol provides a free-standing guarantee against discrimination, which is not dependent upon the breach of some other Convention right.
These instruments, and the provisions of national constitutions and legislation, provide a bewildering range of concepts of equality. It is, therefore, necessary to clarify how "equality" might be understood in the context of "decent work". This is not for any semantic or ideological reason, but because in fashioning a decent work programme, it is essential to have regard for the underlying principles from which legal and social concepts of equality derive.
Equality as consistency or formal equality
The concept of equality has two basic dimensions: equality as consistency - i.e. likes must be treated alike - and substantive or material equality.4 The first of these is found in all anti-discrimination laws, and also in Article 1(1)(a) of ILO Convention No. 111.5 It embodies a notion of procedural justice which does not guarantee any particular outcome. So there is no violation of this principle if an employer treats women and men equally badly, or sexually harasses women and men to the same extent. A claim to equal treatment in this sense can be satisfied by depriving both persons compared of a particular benefit (levelling down) as well as by conferring the benefit on them both (levelling up).
For example, in cases brought to the European Court of Justice under Article 141 EC (ex 119 of the EC Treaty), which follows ILO Convention No. 100 in guaranteeing equal …
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Equality and Empowerment for Decent Work. Contributors: Hepple, Bob - Author. Journal title: International Labour Review. Volume: 140. Issue: 1 Publication date: January 1, 2001. Page number: 5+. © 2008 Blackwell Publishers Ltd. Provided by ProQuest LLC. All Rights Reserved.