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| Back to: Third Session | Draft Article 22 Comments
on the draft text Download complete compilation of comments: MS Word
National Human Rights Institutions Ontario Human Rights Commission (e) 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 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. This article should include a clear prohibition of all forms of discrimination, including harassment, against disabled people in the workplace, covering all parts of the process: recruitment, career advancement, life-long learning, dismissal. The failure to provide reasonable accommodation has to be considered as a form of discrimination. A non exhaustive list of reasonable accommodations should be given, including workplace adaptations, change in working time patterns, reallocation of non essential tasks, personal assistants. Paragraph b) could be strengthened by a requirement that when these services are publicly financed, they have to be accessible to disabled people. Paragraph (g) when it refers to job retention should state “job retention at the onset of a disability”. Paragraph h) should include specifically hiring in the areas to be covered. An additional paragraph should be added to protect disabled people from being required to provide to their employer non relevant health information. When a disabled person requires rehabilitation, the disabled person should be given the required time to do this. Another element which should be included is how to ensure that health and safety measures are applied in a non discriminatory way to disabled persons. Disabled people work both in the open labour market as well as in other forms of more special employment arrangements, like sheltered/supported workshops and social enterprises. The Convention has to protect the rights of disabled people in all employment situations and in particular in these special settings, where disabled people are at a higher risk of being exploited. Finally, to make the right to work a reality for all disabled people in working age, different employment options need to be provided to disabled people, including a sufficiently broad range and quantity of supported employment opportunities, with varying degrees of support as required. It should be stated that all these obligations refer both to private and public employers. Current paragraph i) should be reworded, as it seems to imply that equal opportunity to employment of persons with disabilities only applies to the public sector. Indian NGO Consultative Meeting Article 22 can be strengthened by adding gender perspective to reduce inequalities of the economic status among men and women with disabilities. 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; 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;” 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.” In article 22.i) – prefix “Government” before “public sector” and “private sector” Start article 22.j- with the following sentence-“Undertake awareness campaigns by disseminating information in..”.. 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.” 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.” 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." 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." 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." 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 Ltd 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.
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. 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 employment .”1 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. Footnotes Footnote 1: Productivity Commission, Inquiry into the Disability Discrimination Act 1992 - Draft Report: Draft Finding 5.1. |