Collective Versus Individual Rights: The Able Worker and the Promotion of Precarious Work for Persons with Disabilities Under Conflicting International Law Regimes
Loyola of Los Angeles International & Comparative Law Review Volume 41 Winter 2018 No.1
Posted: 18 Apr 2018
Date Written: July 1, 2017
Even though labour rights are now regarded as human rights, substantial differences remain in how labour rights and human rights regimes each approach equality at work. This paper will critically analyse the significant differences in how the ILO conventions and the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) protect people with disabilities employed in precarious work.
One of the measures advanced in Article 27 of the CRPD goes against traditional approaches to protecting vulnerable workers, i.e., the CRPD promotes precarious work. Judy Fudge observes that the term “precarious work” focuses on whether the form of regulating work decreases workers’ work security, legal rights, and union protection, while also placing workers in an economically vulnerable situation. CRPD Article 27(1)(f) provides that State parties will safeguard and promote the realization of the right to work by taking appropriate steps, including through promoting “opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business. “The forms of work articulated in Article 27(1)(f) reduce labour protections, reduce access to union protections and can result in workers being more vulnerable than workers in standard employment relationships.
Labour laws distinguish between employment and other forms of regulating work. Whereas employees are regarded as vulnerable and entitled to some protection, workers in other contractual arrangements are treated as commercial operators and more able to protect their own interests. For this reason, anti-discrimination law, dismissal protections, sick leave, annual leave and workers compensation either do not apply or have reduced application to workers who run their own businesses. Accordingly, laws assume contractors, bailees, and franchisees “to be in commercial arrangements and in less need of protection.” It is therefore remarkable that the CRPD, the primary convention to protect the rights of persons with disabilities, including the right to work, adopts non-standard employment vehicles as one option to promote workplace equality. It has been a cornerstone of the labour movement that permanent fulltime work is the most effective way of protecting workers’ rights. The CRPD drafters arguably recognised that existing labour and human rights laws were failing persons with disabilities and embraced a different approach. Through promoting precarious work for persons with disabilities in Article 27, what message are the community of nations and drafters of the CRPD sending about the effectiveness of human rights and industrial relations laws to protect workers with disabilities workplace rights?
The comparative critical analysis in this paper is divided into two parts. Part I of this paper will compare and contrast how the ILO and CRPD construct workers with disabilities. This part will draw from theoretical models in labour theories and disability studies to explain how these different regimes determine when workers with disabilities should have their right to work protected. This paper will then analyse in Part II how ILO conventions and the CRPD adopt different approaches to regulating and promoting precarious work. Arguably, the definition of who is a “worker” under each regime, in combination with operational factors, has a significant influence on the contrasting approaches of these two regimes.
To understand the theoretical, regulatory and operational implications of how ILO conventions and the CRPD approach the rights of precarious workers with disabilities, this paper will use the “gig economy” as a case study. The CRPD was the first human rights United Nations convention in the 21st century and it therefore seems appropriate to analyse the implications of Article 27(1)(f) by using the most recent manifestation of structuring work: the gig worker. The gig economy is an incremental step that technological developments have made possible. Gig companies control where customers can request various services and products. Naturally, the gig company then distributes the work to workers who will provide the product or service. The customer pays the gig company, who then in turn remunerates the worker. To protect brand image, gig companies exercise significant control over gig workers and retain the power to terminate gig workers without notice.
Some of the most successful gig companies are the ride sharing services of Uber and Lyft. There are many other gig product and services offered, usually on a micro-contract basis, including clerical, freelance, information-technology, consultancy, copy editing, and research assistant work (which has arguably created a college cheating economy). The gig economy is not stable, and it is likely to expand into every product and service which can be provided via a gig company.
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