Comments, proposals and amendments submitted electronically

Governments

CANADA

ARTICLE 22
Right to Work

States Parties recognize the right of all persons with disabilities to work, which includes the opportunity to gain a living by work that they freely choose or accept, with a view to promoting equal opportunity and treatment of all persons with disabilities, and protecting them from poverty.

States Parties shall take appropriate steps to safeguard and promote the realization of this right, including measures to:

(a) promote labour markets and work environments that are open, inclusive, and accessible to all persons with disabilities;

(b) ensure the reasonable accommodation of persons with disabilities in workplaces and work environments;

(c) promote employment and career opportunities for all persons with disabilities in open labour markets;

(d) encourage all employers to hire persons with disabilities, including through positive measures;

(e) provide assistance to persons with disabilities in finding, obtaining, maintaining, and returning to employment including through vocational and professional programs;

(f) ensure that persons with disabilities have equal opportunity to employment in the public sector;

(g) ensure persons with disabilities are able to exercise their labour and trade union rights;

(h) protect persons with disabilities from discrimination with respect to all terms and conditions of their employment;

(i) Eliminate (j) – Covered in the text of Article 5.

CHILE

ARTICLE 22 – Right to work

Letter (b)- add the phrase “labour training” as follows:

(b) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services, assistive devices, vocational formation, labour training and continuing education.

Letter (g) – add the word “labour” as follows:

(g) Promote vocational, labour and professional rehabilitation, job retention…..

Letter (h) – should be modified as follows:

(h) Enact laws and apply public policies to protect persons with disabilities with regard to employment, continuance of employment, career advancement, working conditions, including equal remuneration for work of equal value and equal opportunities, and the redressing of grievances, to ensure that persons with disabilities are able to exercise their labour and trade union rights. These measures should consider safeguards to avoid the establishment of discriminatory conditions and requirements which affect, in an explicit or implicit manner, access to employment of persons with disabilities, and their tenure in their places of work, envisaging penalties for the occurrence of these prohibitions.

Letter (i) should be modified as follows:

(i) Ensure that persons with disabilities have equal opportunities in the access and performance of work in the public sector.

NOTE: In Chile, legislation posing difficulties to this access is being modified: compatible health and necessary schooling needed in case of disability.

Letter (j) – add the phrase “ and to the productive processes” in the second line, after “labour market” as follows:

(j) Promote recognition of the skills, merits, abilities and contributions of persons with disabilities to the workplace , the labour market and to the productive processes, and to combat stereotypes and prejudices……

New letters should be added along the following lines:

(Letter 1): “ Promote enterprises by persons with disabilities, established and developed, with access to sources of credit and financing without conditions and requirements other than those established for clients without disabilities, in accordance with stipulations indicated in Article 9, letter (e) of the Convention.”

(Letter 2): “Support modalities of protected work for persons with disabilities who cannot be incorporated in the competitive market”.

(Letter 3): “Develop campaigns for the prevention of labour accidents”.

COSTA RICA

Draft Article 22
RIGHT TO WORK

States Parties recognize the right of persons with disabilities to work, which includes the opportunity to gain a living by work that they freely choose or accept, with a view to promoting equal opportunity and treatment of persons with disabilities, and protecting them from poverty.

States Parties shall take appropriate steps to safeguard and promote the realization of this right, including measures to:

(a) promote a labour market and work environment that are open, inclusive, and accessible to all persons with disabilities;

(b) enable persons with disabilities to have effective access to general technical and vocational guidance programs, recruitment and placement services, assistive devices, technical aids and vocational and continuing training;

(c) promote employment opportunities and career advancement for persons with disabilities in the open labour market, including opportunities for self employment and starting one’s own business, and other productive and labour alternatives as well as assistance in creating, finding, obtaining and maintaining employment;

c.bis. Promote access to credit and the necessary technical assistance to develop self-employment opportunities for persons with disabilities

(d) encourage employers to hire persons with disabilities, such as through affirmative action programs, avoiding discrimination on the basis of the different types of disability incentives and quotas;

(e) ensure the reasonable necessary accommodation of persons with disabilities in the workplace and work environment;

(f) promote the acquisition by persons with disabilities of work experience in the open labour market;

(g) promote technical and professional training programmes vocational and professional rehabilitation, job retention and return to work programs;

(h) protect through legislation persons with disabilities with regard to employment, continuance of employment, career advancement, working conditions, including equal remuneration for work of equal value and equal opportunities, the redressing of grievances, health and safety in the work and to ensure persons with disabilities are able to exercise their labour and trade union rights;

(i) ensure that persons with disabilities have equal opportunity to employment in the public sector and promote affimative action programmes to facilitate access to work;

(j) promote recognition of the skills, merits, abilities and contributions of persons with disabilities to the workplace and the labour market, and to combat stereotypes and prejudices about persons with disabilities in the workplace and the labour market.

EUROPEAN UNION

Draft Article 22
RIGHT TO WORK

States Parties recognise the right of persons with disabilities to work, which includes the opportunity to gain a living by work that they freely choose or accept, with a view to promoting equal opportunity and equal treatment of persons with disabilities, and protecting them from poverty. States Parties shall take appropriate steps to safeguard and promote the realisation of this right, including measures to:

EU Proposal: EU suggests following rewording: “States Parties recognize the right to work of persons with disabilities on an equal basis as others; this includes the right to the opportunity to gain a living by work freely chosen or accepted. States Parties shall take appropriate steps to safeguard and promote the realisation of this right, including measures to:”

EU Proposal: EU suggests insertion of two new sub-paragraphs:

-“promote employment opportunities including free vocational choice for persons with disabilities so as to enable them to exercise the right to work and enjoy equal conditions of work”

-“enable persons with disabilities to take full advantage of the right to education and to have access to vocational and continuing training”

(a) promote a labour market and work environment that are open, inclusive, and accessible to all persons with disabilities;

(b) enable persons with disabilities to have effective access to general technical and vocational guidance programs, placement services, assistive devices and vocational and continuing training;

EU Proposal: Delete “assistive devices”.

(c) promote employment opportunities and career advancement for persons with disabilities in the open labour market, including opportunities for self employment and starting one’s own business, as well as assistance in finding, obtaining and maintaining employment;

(d) encourage employers to hire persons with disabilities, such as through affirmative action programs, incentives and quotas;

EU Proposal: EU suggests following rewording: “encourage employers to hire persons with disabilities through appropriate policies and measures”

(e) ensure the reasonable accommodation of persons with disabilities in the workplace and work environment;

EU Proposal: EU suggests following rewording: “ ensure that reasonable accommodation is provided to persons with disabilities in the workplace and work environment;”

(f) promote the acquisition by persons with disabilities of work experience in the open labour market;

(g) promote vocational and professional rehabilitation, job retention and return to work programs;

EU Proposal: Insert “persons with disabilities” at the end of the paragraph

(h) protect through legislation persons with disabilities with regard to employment, continuance of employment, career advancement, working conditions, including equal remuneration for work of equal value and equal opportunities, and the redressing of grievances, and to ensure persons with disabilities are able to exercise their labour and trade union rights;

EU Proposal: Insert “that” after “ensure”

(i) ensure that persons with disabilities have equal opportunity to employment in the public sector;

EU Proposal: Delete (i)

(j) promote recognition of the skills, merits, abilities and contributions of persons with disabilities to the workplace and the labour market, and to combat stereotypes and prejudices about persons with disabilities in the workplace and the labour market.

EU Proposal: Delete (j) (Cf Article 5)

ISRAEL

Draft Article 22 – Right to Work

Proposals

Paragraph (c) – Replace “promote” with “pursue active labour market policies with a view to promoting”

New paragraph (i) – Ensure that all employment protection laws and standards, including in relation to the minimum wage apply to all persons with disabilities working in the open labour market, any derogation from such laws and standards being made only in circumstances where derogation can clearly be shown to be justified.

New Article 22(2) –

a) States parties shall enact legislation on equality for persons with disabilities in employment, on the basis of Article 7 and containing the following provisions in particular:

1) prohibition on discrimination on the basis of disability in relation to all aspects of employment including recruitment, employment conditions, promotion, professional training, severance and retirement.

2) requirement of employers to make such reasonable accommodations as are necessary in order to facilitate the employment or continued employment of persons with disabilities and as are reasonable.

b) A reasonable accommodation means an accommodation which does not impose a burden which is disproportionate in the light of all the relevant circumstances, including the cost and size of the accommodation, the size and structure of the business, the scope of its operations, the number of employees, the make-up of the workforce and the existence of external or state funding for the purpose of carrying out accommodations.

c) Legislation adopted in accordance with this Paragraph shall also apply to family members of persons with disabilities and shall include effective sanctions enforcement and implementation mechanisms.

New 22(3) (Sheltered/Assisted employment)

a) States parties recognize that priority shall be given to the full integration of persons with disabilities in the open labour market and that employment of persons with disabilities outside the open labour market should be reduced to and maintained at the minimum level possible.

b) States parties shall enact legislation protecting the rights of persons with disabilities who are employed outside the open labour market, such legislation providing for the application of all the employment protection laws and standards applicable in the open labour market save where derogation from such laws and standards in strictly necessary.

Israeli Proposal for a New Draft Article 22: Right to Rehabilitation

We suggest separating the rehabilitation and health segments, with the following article as a starting point in discussion.

“Persons with disabilities have a right to a comprehensive psychosocial rehabilitation in order to enable them to reach and sustain their optimum level of functioning and self expression and to live an independent life of their choice in their preferred community. Rehabilitation shall be understood as including habilitation and rehabilitation. Toward this end States parties undertake:

1. To maintain and develop a comprehensive and integrated range of functional rehabilitation services including occupational, vocational, housing, recreational, educational, and associated assistive technology and management and a self-supportive system, and to ensure that such rehabilitation is in alignment and continuity with medical and paramedical rehabilitation.

2. Take steps to ensure that information with respect to rehabilitation services and procedures are widely available and accessible to all persons with disabilities and, when appropriate, to their families.

3. To ensure that access to such services will be open to all persons with disabilities without discrimination of any kind, and particularly without regard to the kind or severity of the disability.

4. To take steps to ensure that the specific rehabilitation needs of women, girls, children, the elderly, and family members of persons with disabilities are appropriately addressed in order to ensure respect for their dignity and particular needs.

5. To base the design of rehabilitation programs on the actual needs of the person concerned, through a process of individualized comprehensive assessment and intervention and, towards this end, to actively involve the person in the design, organization, and periodic review of their program.

6. To prohibit the imposition of any program of rehabilitation against the wishes of the person concerned.

7. To take steps to ensure that rehabilitation programs are available locally in the individual’s own community in order to ensure that the rehabilitation process creates a meaningful and practical pathway into a life of full participation and inclusion, in accordance with personal choice and opportunities.

8. To involve persons with disabilities and their representative organizations in policy decision-making, the concrete rehabilitation process, and the evaluation of rehabilitation outcomes.

9. To ensure that all personnel involved in rehabilitation are sensitized to the rights and needs of persons with disabilities, and to ensure that their objective is to make the full inclusion of people with disabilities possible.”

MEXICO

Article 22. Right to work

States Parties recognise the equal right of persons with disabilities to work, which includes the opportunity to gain a living by work that they freely choose or accept, with a view to promoting equal opportunity and treatment of persons with disabilities and to promote their full participation and development in the productive life. States Parties shall take appropriate steps to safeguard and promote the realisation of this right, including measures to:

a) promote labour rehabilitation as part of the integral rehabilitation for persons with disabilities, where appropriate, by providing and evaluating orientation, training and selective–designation services, with the purpose of enabling persons with disabilities to gain access, continuity and career advancement, as well as for labour reintegration;

b) promote an inclusive labour market which favors labour integration of persons with disabilities;

To separate concepts contained in old c):

Old c), new d) encourage the finding, obtaining and maintaining of employment and career advancement opportunities for persons with disabilities through the implementation of an active policy related to the labour market;

New e) encourage self-employment for persons with disabilities through training, financing and an expeditious and effective regulatory framework, in particular in the rural sector;

Old e), new g) ensure that workplaces have reasonable accommodations to allow access of persons with disabilities and to permit them to perform their activities;

Delete old subparas f) and g)

h) promote the inclusion of specific regulations under labour legislation of States Parties to protect persons with disabilities with regard to employment, continuance of employment, career advancement, working conditions, including equal remuneration for work of equal value and equal opportunities, and the redressing of grievances, and to ensure that persons with disabilities are able to exercise their labour and trade union rights;

To separate concepts contained in subpara j):

j) promote recognition of the skills, merits, abilities and contributions of person with disabilities to the workplace and the labour market, and
new i) combat stereotypes and prejudices about persons with disabilities in the workplace and the labour market.

NAMIBIA

Article 22

Insert:

2. States Parties shall ensure effective and appropriate regulation and resources that would provide for the development of alternative forms of community-based employment for persons with disabilities who may not have the capacity to work in the open labour market, in conditions which ensure useful and remunerative work and which provide opportunities for vocational advancement including transfer to open employment.

3. States Parties recognize the right of persons with disabilities to be protected from economic exploitation. States Parties shall take effective legislative, administrative, social and educational measures to ensure the implementation of this article to this end, and having regard to the relevant provisions of other international instruments, States Parties Parties shall in particular provide:

a) For effective and appropriate regulation of non-integrated work settings, including shettered workshop; and

b) For effective and appropriate penalties or sanctions to ensure the enforcement of the present article.

SOUTH AFRICA

DRAFT ARTICLE 22:
RIGHT TO WORK

1. In the Chapeau of the article we propose the deletion of “treatment”. Chair we are of the view that the chapeau should address the matter of equal opportunity in the workplace and equitable representation at all occupational levels. We are also of the view that “Equal treatment” defeats the purpose of reasonable accommodation if it is maintained in the Chapeau.

2. In the Chapeau we propose the addition of economic empowerment. Such that the Chapeau will read “States Parties recognise the right of persons with disabilities to work, which includes the opportunity to gain a living by work that they freely choose or accept, with a view to promoting equal opportunity and economic empowerment of persons with disabilities. We are of the view that the absence of economic empowerment programs affects all persons including persons with disabilities.”

3. Para (b). We propose the Deletion of the word “general” in the statement referring to technical.

4. Para (b) we propose the sub para to read “Enable persons with disabilities to have effective access to Technical and vocational guidance programs, placement services, Assistive devices and vocational and life long training;

5. para (c ) will read :” promote employment opportunities and career advancement for persons with disabilities in the open labour market, through assistance in finding, securing and maintaining such employment, including opportunities for self-employment.

6. We propose the deletion of “professional” as the implication is unclear. The para (g) should refer to the promotion of all work and employment related rehabilitation processes.

7. Para (j) we propose the deletion of abilities as it creates an environment of stereotyping PWDs such as relegating PWD’s abilities to basket weavers or telephone operators.

UN System organizations

ILO

Interventions made at the Third Session:

Draft Article 22 Right to Work

- The ILO welcomes the recognition of the right of persons with disabilities to gain a living by work which they freely choose or accept, based the principles of equal opportunity and equal treatment and the provision for protection of this right through legislation, including the right of disabled persons to join trade unions.

- The ILO welcomes the emphasis on promoting an open, inclusive, accessible labour market and work environment, given the high unemployment rate among people with disabilities and in addition, the fact that many disabled persons who are not currently counted as either employed or unemployed, are also capable of working, given the opportunities and the appropriate supports.

- The ILO is aware, however, that the majority of persons with disabilities live in developing or transition countries, frequently in rural areas and remote communities; are unlikely to enter into formal employment in public or private enterprises; and are most likely to earn their living through work in the informal economy. We are concerned that this fact is not adequately reflected in the draft text of Article 22.

- The ILO also recognizes that many people with disabilities currently work in settings, including protected workshops, under conditions which differ significantly from those that prevail in the open labour market, and would hope that the Convention will be of relevance to these people also.

- For these reasons, the ILO suggests certain amendments to draft article 22, for consideration by the Ad Hoc Committee, so that this article can make a difference to all disabled persons of working age. Including these amendments (underlined) the text would read as follows:

States Parties recognise the right to work of person with disabilities, which includes the opportunity to gain a living by work that they freely choose or accept, with a view to promoting equal opportunity and treatment of persons with disabilities and protecting them from poverty. States shall take appropriate steps to safeguard and promote thee realization of this right, including measures to

(a) Promote a labour market and work environment that are open, inclusive and accessible to all persons with disabilities

(b) Enable persons with disabilities to have effective access to general vocational, and career guidance programmes, employment counseling and placement services, assistive devices and vocational and continuing training supplemented by information in accessible formats on rights and obligations under labour-related law and other forms of labour regulation,

(c) Promote employment opportunities and career advancement for persons with disabilities in the open labour market, including opportunities for self-employment and starting one’s own business, as well as assistance in finding, obtaining and maintaining retaining employment, providing, where necessary, on a transitional basis, for adequately resourced, alternative forms of employment, in conditions that ensure useful and remunerative work, and provides opportunities for vocational advancement.

(d) Encourage employers to hire persons with disabilities, and to retain those who acquire a disability while in employment such as through affirmative action programmes, incentives and quotas and making available technical supports, assistive devices, wage subsidies, and other incentives.

(e) Ensure reasonable accommodation of persons with disabilities in the workplace and work environment by requiring employers to take steps to improve the accessibility of the work premises and to make adaptations to the recruitment and hiring process, to workstations, tools and equipment, job descriptions, including duties and tasks, and work schedules.

(f) Promote the acquisition by persons with disabilities of work experience in the open labour market

(g) Promote vocational and professional rehabilitation, job retention and return to work programmes

Protect through legislation persons with disabilities with regard to employment, continuance of employment, career advancement, job retention and return to work, working conditions including equal remuneration for work of equal value and equal opportunities, and the redressing of grievances, ensuring that they are covered by the provisions of national labour law and to ensure persons with disabilities are able to exercise their labour and trade union rights.

(h) Ensure that persons with disabilities have equal opportunity to employment in the public sector

(i) Promote recognition of the skills, merits, abilities and contributions of persons with disabilities to the workplace and labour market, and to combat stereotypes and prejudices about persons with disabilities in the workplace and the labour market.

- In light of the point made by some members of the Working Group that the broad measures in which this draft article is expressed are inconsistent with the detailed provisions of other articles of the draft Convention (footnote 88), the ILO suggests that guidelines might be drawn up to accompany the UN Convention, providing greater explanatory detail.

- The ILO welcomes the Working Group suggestion that the Ad Hoc Committee may wish to consider the potential role of the ILO in implementing and monitoring the right to work under this Convention (footnote 86).

OHCHR

See references to international human rights conventions and jurisprudence.

National Human Rights Institutions

NATIONAL HUMAN RIGHTS INSTITUTIONS

Article 22

The National Human Rights Institutions feel this Article while being very important is generally too prescriptive for an International Convention. It uses terminology and concepts, which do not allow for flexibility, and may be fixed at one point in time.

Mr. Chair, we support the chapeau for the simplification of this Article as suggested by New Zealand with one change. We would substitute the word “protect” for “safeguard” in the second sentence. We would also propose to re-word (c) in the New Zealand draft and (d) in the working group draft to read ensure “that employers hire persons with disabilities”, deleting the rest of the sentence.

ONTARIO HUMAN RIGHTS COMMISSION

Article 22 – Right to work

(e) Ensure the reasonable accommodation of persons with disabilities in the workplace and work environment;

The Commission is supportive of this paragraph and the other paragraphs of the draft Article. Ontario’s Human Rights Code legislates the right to equal treatment in employment without discrimination and requires employers to accommodate the needs of disabled employees short of undue hardship. Similarly, in this paragraph the Ad Hoc Committee might wish to consider substituting the term “ensure” with the requirement to “Protect through legislation” as similarly used at paragraph (h) of this Article. The Ad Hoc Committee might also consider that any legislated requirement extend to private sector employers as well. The requirements of Ontario’s Human Rights Code cover all sectors including government and para-public entities as well as all private enterprises. The Commission’s Policy and Guidelines on Disability and the Duty to Accommodate comprehensively sets out the rights of employees with disabilities as well as the obligations of employers under the Code.

Footnote 89: … the Committee may wish to consider whether transportation to the workplace for persons with disabilities is covered under the provision of access to the workplace under draft article 19.

The Commission is of the view that access to transportation to the workplace should be at minimum with respect to accessible “public” transit, and would more appropriately be covered under draft Article 19.

Non-governmental organizations

AUSTRALIAN NGOs

Draft Article 22
Mr Chairman:

Thank you for this opportunity to address the Ad Hoc Committee.

We strongly support the intervention of the ILO in proposing amendments to Article 22, and in particular welcome the suggested reference in the chapeau to “women and men” with disability, a reference which effectively deals with the Working Group’s concerns at FN 87.

In a similar vein, we would like to propose amendments dealing with the particular situations and vulnerabilities of young people and geographically isolated people with disability. These groups experience aggravated forms of discrimination, oppression, and lack of equal access to employment opportunities.

As regards children and young people, we suggest the insertion in the chapeau of the words “of lawful working age” after the phrase “women and men with disabilities”. We believe that this proposal directly tackles the issue of the forced labour of young people with disability, and effectively undermines any argument that people with disability not of lawful working age have a “right” to be employed, when they should instead be receiving an education.

In respect of geographically isolated persons with disability, we note the way in which this issue is addressed within the Bangkok draft, and we suggest the creation of a new paragraph within the Article in substantially similar terms:

“States Parties shall ensure that the measures articulated in paragraph 1 are implemented and apply equally and without discrimination to people with disability in rural or remote areas, in small island communities, or in scattered populations”.

We also support the ILO’s suggested amendment to sub par ( c ) proposing alternative forms of employment. The ILO amendment will ensure that work in such alternative forms of employment does not become a permanent situation for people with disability, and that planning and services to facilitate a person’s entry or re-entry into the open labour market will be provided.

It is also important to note that such alternative forms of employment are not stated to lie outside States Parties’ labour laws governing working conditions, including laws dealing with the principle of equal pay for work of equal value referred to in sub par (g). Accordingly, workers in such alternative forms of employment shall be entitled to the same rates of pay as workers in the open market performing work of similar value.

We would suggest, however, that the reference to such alternative forms of employment be further amended by requiring that such forms of employment be provided within inclusive, mainstream employment settings. Such a requirement would ensure that the transitional nature of the alternative employment forms are emphasised, and that permanent and totally segregated employment services for people with disability are avoided.

We also recommend that:

Sub-pars (b) to (d) inclusive are amended to commence with the words “Ensure that”, along with necessary consequential amendments, rather than with the phrases “enable”, “promote” and “encourage” respectively;

Sub-par ( c ) is amended to insert the words “maintaining and” before the word “retaining employment”;

Sub-par (d) is amended to insert the words “services to support people with disability in the workplace” after the words “wage subsidies”;

Sub-par (g) is amended to insert the words “workplace training” after the words “continuance of employment”;

Sub-par (h) is amended to add the words “at all levels” after the words “public sector”.

We further suggest the insertion of a new sub-par (j) to provide as follows:

“Incorporate the measures referred to in sub-paragraphs ( a ) to (i) of this Article into domestic legislation.”

BIZCHUT

Draft Article 22 – Right to Work

(a) State program to train people with disabilities and place them in employment

As the convention relates not just to the prohibition of discrimination in the workplace but to a wider right – the right to work - we suggest adding that the State be obligated to initiate and develop programs for training persons with disabilities and placing them in employment.

(b) State participation in employer’s expenses for adaptations for an employee with a disability

The State’s part in encouraging employers to employ persons with disabilities is established in clause (d): the State will encourage employers to hire persons with disabilities, such as through affirmative action programs, incentives, and quotas. In our opinion, only the inclusion of an explicit obligation will enable significant promotion of the issue, especially in the case of employers in the private sector. We suggest that the Convention establish the obligation of the State to participate in expenses incurred by an employer for making the workplace accessible to a person with a disability. (See our comments to Articles 13 and 20.)

(c) People with disabilities in assisted employment

The normative mode of employment is within the free labor market. However there are persons with disabilities who work in assisted workplaces. The rights of persons in these places must also be established.

In particular we suggest that through supervision and monitoring by the State, including the use of legislation, 1) such places will be guided by the principle of encouraging persons with disabilities to enter the free labor market, and provide conditions that enable them to do so; 2) the rights of employees in such frameworks be anchored, and the diversion from normative conditions of employment of the free labor market be minimal. As regards the last point, we suggest that clause (h) make specific mention of assisted frameworks, particularly in relation to the application of the principle of equal remuneration for work of equal value.

(d) Meager obligation on the State as an employer, especially as regards to fair representation in the public sector

The absence of increased obligations on the State as an employer, in relation to the promotion of fair representation of employees with disabilities in the public sector, is conspicuous: the formulation of clause (d), that applies to all employers, is weak in relation to the State as an employer, and even clause (i), that concerns an employee in the public sector, establishes a minimal obligation of ensuring a person with disability equal opportunity to employment.

We are of the opinion that State’s obligation as an employer be clearly established, to ensure fair representation of employees with disabilities in the public sector, and together with it practical steps that will ensure implementation are defined, including affirmative action.

EUROPEAN DISABILITY FORUM

Draft Article 21 Right to health and rehabilitation

This article might be clearer if it is divided into two articles: one dealing with the access of disabled people to general healthcare issues and a second one dealing with the specific (re)habilitation issues which some disabled people require.

As referred to in footnote 74 of the draft Convention, (re)habilitation goes beyond medical issues. A definition of both concepts (rehabilitation and habilitation) in the article 3 seems to be appropriate.

EDF is against a reference to prevention of impairments, but supports a reference to the prevention of secondary impairments as included in paragraph e).

INDIAN NGO CONSULTATIVE MEETING

Draft Article 22

38. Article 22 can be strengthened by adding gender perspective to reduce inequalities of the economic status among men and women with disabilities.

39. With regard to article 22-c, additional text is suggested. The modified text of the article 22-c should be read as “ Pursue active labour market policy to promote employment opportunities and career advancement for persons with disabilities in the open labour market, including opportunities for self employment and starting one’s own business, as well as assistance in finding, obtaining and maintaining employment;

40. In article 22-d) minor addition is suggested to reflect both public and private sector employers. The modified text of article 22-d) should be read as “encourage employers in both public and private sectors to hire persons with disabilities, such as through affirmative action programs, incentives and quotas;”

41. In article 22-e) minor addition is suggested. The modified text of article 22-e) should be read as “ensure the reasonable accommodation of persons with disabilities in the workplace, work environment and in work processes.”

42. In article 22.i) – prefix “Government” before “public sector” and “private sector”

43. Start article 22.j- with the following sentence-“Undertake awareness campaigns by disseminating information in..”..

44. A new sub para 22.k) is suggested which should be read as “To evolve and formulate necessary policy and legislative measures to prevent harassment, discrimination and sexual abuse of women with disabilities in work places.”

45. A new sub para 22- l) is suggested which should be read as “To formulate policies and other suitable legislative measures for promoting assured market for the products and services belonging to ventures of persons with disabilities or disability NGOs, which may include preferential treatment, incentives and tax benefits.”

46. A new sub para 22-m) is suggested, which should be read as “To promote self employment initiatives by persons with disabilities through formulation of policies and legislative measures for preferential allocation of licence items of raw materials and development of special marketing channels for the sale of product/services of self-employed persons with disabilities and disability NGO.

47. A new sub para 22-n)is suggested which should be read as –“Promote research, development and delivery of enabling technologies to expand possible job opportunities for persons with disabilities both in open and protected labour markets.

48. A new sub para 22-o)is suggested which should be read as- “Promote establishment of sheltered workshop for ensuring Right to work of persons with severe disabilities or those who may not have access to employment in open labour market.

JAPAN DISABILITY FORUM

<Draft Article 22>Right to Work

Original Text of the Draft

States Parties recognise the right of persons with disabilities to work, which includes the opportunity to gain a living by work that they freely choose or accept, with a view to promoting equal opportunity and treatment of persons with disabilities, and protecting them from poverty. States Parties shall take appropriate steps to safeguard and promote the realisation of this right, including measures to:

JDF’s proposed Amendment

Add the underlined portion as follows.

States Parties recognize …poverty. The representative organizations of employers and workers and the representative organizations of and for persons with disabilities shall be consulted on the implementation of the said measures. States Parties shall take appropriate steps to safeguard and promote the realization of this right, including measures to:

Reason

It is essential for effective promotion of vocational rehabilitation and employment measures that the representative organizations of employers and workers and the representative organizations of and for persons with disabilities are consulted. Its significance has been recognized in International Labor Organization Convention No. 159 concerning Vocational Rehabilitation and Employment of Disabled Persons Article 5.

Original Text of the Draft

(a) promote a labour market and work environment that are open, inclusive, and accessible to all persons with disabilities;

JDF’s proposed Amendment

Add the underlined portion.

promote … with disabilities; State Parties also compile statistical data such as employment rate (percentage of employed persons with disabilities as a portion of the total population of persons with disabilities who are in the labor force) as essential indicators of measuring employment status of persons with disabilities in the labor market.

Reason

Although health statistics, (i) such as the number of persons with disabilities, are compiled, few countries collect employment statistics of persons with disabilities. In order to improve their current employment situations, it is very important to keep abreast of their actual employment conditions. The employment strategy of European Union in recent years aims to raise employment rate in addition to the existing goal of diminishing unemployment rate. Its idea is to integrate as many persons as possible who are not in the labor forces for various reasons, including persons with disabilities, into the labor market. It also intends to include every person into the community through work. As an essential indicator of the goal, EU employs “employment rate” and publishes the data.

Original Text of the Draft

d: encourage employers to hire persons with disabilities, such as through affirmative action programs, incentives and quotas

JDF’s proposed Amendment

Add the underlined portion.

d: encourage employers to hire persons with disabilities through positive measures to ensure effective equal opportunity and treatment between disabled workers and workers generally

Reason

It is better to employ broader terminology, since there are arguments for and against such specific measures as quotas. As similar phrase is already adopted in Article 4 of the ILO Convention No. 159, it will enable State Parties to reach international consensus.

Original Text of the Draft

e. ensure the reasonable accommodation of persons with disabilities in the workplace and work environment

JDF’s comment to this part

Add the following portion.
Though the definition of “the reasonable accommodation” is provided under Article 3, its concrete contents are not given in this draft Article. Therefore, the following provisions under Americans with Disabilities Act (ADA) shall be referred.

ADA Sec. 101 (9)

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities.
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Original Text of the Draft

g. promote vocational and professional rehabilitation, job retention and return-to-work programs.

JDF’s proposed Amendment

Add the underlined portion.
g. promote…programs. State Parties undertakes positive measures to create employment opportunity for persons with most severe disabilities.

Reason

In order to promote employment of persons with most severe disabilities, governments must undertake () leading and positive measures in creating employment opportunity.

Original Text of the Draft
h. protect through legislation persons with disabilities with regard to employment, continuance of employment, career advancement, working conditions, including equal remuneration for work of equal value and equal opportunities, and the redressing of grievances, and to ensure that persons with disabilities are able to exercise their labour and trade union rights;

JDF’s proposed Amendment
Protect ….the redressing of grievances, the prohibition of disability related harassment recognizing such act as discrimination, and to ensure that persons with disabilities are able to exercise their labor and trade union rights.

Reason

Since a significant number of persons with disabilities suffer from disability related harassment, a provision shall be needed in order to protect them from such disturbance.

LANDMINE SURVIVORS NETWORK

DRAFT ARTICLE 22 COMMENTS

Draft Article 22 addresses a number of the issues relevant to people with disabilities that wish to exercise their right to gain a living by work. It is notable though, that there are no specific provisions addressing issues such as slavery, servitude, forced labor or economic exploitation. Given the historic exploitation of people with disabilities (e.g. in some sheltered workshops) the Ad Hoc Committee may wish to include such provisions in a separate article. (Cf. International Covenant on Civil and Political Rights, Article 8)

Footnote 93 references the possible inclusion of a provision on reasonable accommodation in the employment context. If such a provision is included, it will be important to link it to the efforts in paragraph (f) to encourage the hiring of people with disabilities, because lack of understanding about the duty to accommodate may lead to employers failing to hire otherwise qualified people with disabilities and/or may lead to a failure by employers to accommodate during the hiring process. With further regard to paragraph (f) and Footnote 92, the Ad Hoc Committee may wish to consider the removal of any specific examples (e.g. quotas), and utilizing a broader term (such as “positive measures”) which could, but need not necessarily, include quotas.

Draft Article 22(g) addresses the need for promotion of vocational and professional rehabilitation. The Ad Hoc Committee may find the ILO Convention (159) on Vocational Rehabilitation and Employment (of Disabled Persons) a helpful reference in this regard.

Draft Article 22(h) references the need for certain kinds of protections with regard to people with disabilities and employment. However, it does not expressly reference the important need to ensure against discrimination in the context of the hiring process. Given the discrimination against people with disabilities in this regard it would seem important to include such a provision.

Draft Article 22(i) discusses the need for equal opportunity employment in the public sector, but does not extend this need to the private sector, which will be necessary if equal opportunity to employment is to truly be achieved.

PHYSICAL DISABILITY COUNCIL OF AUSTRALIA

Right to Work: Draft Article 22

This section needs to be complete re-written to take into account the many human rights violations and abuses that take place in the area of employment.

PDCA believes that people with disability are entitled to:

• meaningful employment
• fair wages
• equal work and professional development opportunities.

In Australia, the current payment of non-award wages to people with disability, by employers that receive Commonwealth employment assistance funding is an abuse of the rights of people with disability.

Of significant concern is the fact that Sheltered Workshops (Business Services) do not comply with the Commonwealth Disability Services Act, 1986 (DSA). Astoundingly, government continues to provide significant amounts of funding (in the millions) to these non-compliant services.

In addition, the Productivity Commission in its review of the DDA found that:

“…disability discrimination in employment remains a significant issue” and that “…overall, the Act appears to have been least effective in reducing discrimination in employment10 .”

WORLD BLIND UNION

RIGHT TO WORK
Article 22:

It must be a guarantee that PWD get a chance to enter the labour market in some forms.

PWD shall have the right to earn their own income and support for themselves.

PWD in sheltered employment must be protected against misuse in the labour market. Trade Unions should have a special responsibility.

All forms of exploitation of PWD's in the labour market must be forbidden.

Women with disabilities must be given special legal protection and attentions.

An ongoing vocational training and guidance must be offered to PWD even those in shelter employment.

Reasonable accommodation is very important in this Article, as it is needed to give access for more PWD to enter the labour market. A specific definition on reasonable accommodation could be added to Article 3, Definitions.

Access to the workplace for PWD, including accessible transportation, should be included.

In para (c), self-employment and starting one’s own business, should be combined with the possibility to get micro credits to a low interest.

The quota system should not be mentioned in this convention. “Positive measures”, is much better and gives each State Parties the possibility to form their own system.

WORLD NETWORK OF USERS AND SURVIVORS OF PHSYCHIATRY

Draft article 22
RIGHT TO WORK

The World Network of Users and Survivors of Psychiatry would like to reaffirm this article especially sub-section (a) that States Parties shall take appropriate steps to safeguard and promote the realization of the right to work, including measures to promote a labor market and work environment that are open, inclusive and accessible to all persons with disabilities. One reason for the support of this article is that public services employment application forms often ask about past medical history of mental illness. It would be good if it was to help the person to cope with the work but it is used negatively to screen the person out.

We would also like to see that subsection (h) is retained as per draft because it provides explicit protection in all aspects of employment.

We oppose the idea of sheltered workshops for people with psychosocial disabilities because this leads to segregation in the work environment but would like to have reasonable accommodation as provided for in subsection (e). We would also like equal pay for equal work as indicated in (h) to protect against economic exploitation which can happen in sheltered workshops.