The Concept of Equality and Elimination of Discrimination in Employment: Scope and Developments | Daily News
(Part 1 of a three-part article)

The Concept of Equality and Elimination of Discrimination in Employment: Scope and Developments

Aristotle’s analysis of justice shows the very close relationship between equality and the concept of justice. Indeed, for many laymen, if not philosophers, justice is equality. Theoretical speculation on the concept of equality reveals its many complexities for there are numerous senses in which the concept of equality may be understood. Aristotle, when he formulated his principle of distributive equality, was speaking in terms of social goods and rewards to equals. How equality is determined is a matter for which philosophical speculation by itself can give no answer. It is also extremely difficult to decide what cases are ‘like’ for there are always similarities and differences.

However, in the complex social, economic and political contexts in which every individual lives, the concept of equality is an extremely difficult one for the law to apply. This does not mean however that efforts at achieving some measure of equality through law are futile. A great deal has been achieved already and will undoubtedly be achieved in the future. It is necessary that difficulties be understood and that a conscious choice be made in each discussion of the variety of equality that is being examined. To speak of equality in the abstract or in general terms often clouds the issue.

The ILO and Core Labour Standards

Income inequality between the rich and poor is increasing almost everywhere in the world, because among other factors, of the weakened bargaining strength of labour, due to multiple options available to capital in the globalized economy. Intensified global competition is adversely affecting the working conditions and labour standards the world over.

Calls for re-asserting social and labour rules relating to work environment in today’s global market place, culminated in 1998 with the historic International Labour Conference of the International Labour Organization (ILO), a solemn declaration of ‘Fundamental Principles and Rights at Work’, emphasizing on eight ILO Conventions – No. 29, 87, 98, 100, 105, 111, 138, and 182. While all ILO Conventions are important, the international community during the late 1990s had underlined the importance of this particular group of Conventions, known as ‘the core labour standards’. The core labour standards are binding on all member States of the ILO including on those states, which have not ratified the eight conventions. They are both ‘universal and inalienable and are not relevant to the stage of economic development of the country’ and are binding on all the member states, irrespective of their economic progress. Following this Declaration, all member States of the ILO are obliged to respect, promote and realize in good faith the eight core conventions.

Sri Lanka has also ratified the eight core conventions. The ILO identified these core labour standards following the Social Summit held in Copenhagen in 1995 which set the ‘Millennium Goals’ and the ‘Global Compact’ as the social floor of the emerging global economy, to counteract the erosion of worker rights. The ILO felt that good governance of the labour market based on respect for fundamental principles and rights can contribute to a stable social and political environment and made the Declaration as the key to such an environment. Social dimension is essential to the success of the structural adjustment and good social policy is an integral part of economic efficiency.

The aforesaid ILO Declaration obliges its member States to respect the principles that are the heart of these core Conventions, which include (a) freedom of association (No.87); (b) effective recognition of the right to engage in collective bargaining (No.98); (c) elimination of forced or compulsory labour (Nos. 29 and 105); (d) elimination of discrimination in employment (Nos. 100 and 111); and (e) elimination of child labour and child abuse (Nos. 138 and 182).

The Elimination of Discrimination in Employment Conventions

Out of the above-mentioned eight core Conventions, two are related to the elimination of discrimination in employment. They are (i) the Equal Remuneration Convention No.100 of 1951; and (ii) Elimination Discrimination (Employment and Occupation) Convention No. 111 of 1958.

The right to freedom from discrimination is inherent in the ILO Constitution and in the labour standards. The Equal Remuneration Convention No. 100 of 1951 emphasizes the need to promote ‘equal remuneration for men and women for work of equal value’ while the Elimination Discrimination Employment (and Occupation) Convention No.111 of 1958 defines discrimination as ‘any distinction, exclusion for preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation’ and allows additional criteria included after consultation by the Government with the employers and worker organizations. It aims to promote equality of opportunity and treatment for men and women workers with family responsibilities.

Discrimination

Discrimination bars people from some occupations, denies them a job altogether at times and does not reward them according to their merit on account of their ethnicity, race, caste, sex or social background. This generates a social and economic disadvantage that in turn leads to inefficiency and unequal outcomes. Discrimination at work is a violation of human rights that entails a waste of human talents, with detrimental effects on productivity and may lead to social upheavals and may adversely affect investment and economic growth.

Discrimination may be direct or indirect – direct when rules, practices and policies, exclude openly, people of certain ethnicity or of certain political party or give preference to certain individuals. Discrimination also occurs when for the same job of ‘equal value’ a migrant worker – an expatriate receives a higher pay than a national. Forms of direct discrimination include job advertisements stating discriminating conditions. Human resource practice that requires conditions prohibiting female employees marrying while in employment, is an act of violation of the Conventions Nos. 100 and 111. Discrimination is indirect when apparently neutral forms and practices have disproportionate effect on one or more identifiable groups without justification. Differential treatment of particular categories of workers in the form of inferior social benefits or remuneration also amounts to discrimination. The lower protection granted to domestic servants (most of them are lower income male and female workers belonging to racial and ethnic minorities) are also tantamount to discrimination and a violation of the above two Conventions.

The State has a major responsibility in ensuring equality, not only in the public sector but also in private sector workplaces. Equally the trade unions and employers too have the responsibility to ensure that discrimination does not prevail in their workplaces. Despite a number of positive moves in terms of policies and legislation, the overall conditions of women in Sri Lanka had not significantly changed. Bias in recruitment in working conditions, gender-based low wages or salaries and cultural inhibitions, still keep the gender gap wide.

Collective Bargaining and Equality

With regard to the interface between collective bargaining and equality, one important fact is that these two fundamental principles and rights are mutually reinforcing and can together promote workplace governance which reconciles economic with social goals. Unequal access to collective bargaining is an equality challenge. Inequitable access to collective bargaining is a human rights issue that implicates systematic discrimination against historically disadvantaged groups in the workplace.

For equality to be advanced through the collective bargaining process, it is essential that trade unions and employers be committed to seeking it. The process of preparing for collective bargaining by both unions and employers and the setting of bargaining demands and priorities should include an assessment of existing problems of inequality and discrimination. Inclusive strategies for consultation and participation of historically excluded and disadvantaged groups are essential to identifying and defining problems of inequality.

Collective Agreements and Achievement of Equality

An important starting point for implementing equality at work is inclusion in the collective agreement of a basic commitment to equality and non-discrimination.

Equality rights clauses may also serve as interpretive aids to other provisions in the collective agreement. In the face of ambiguity or potentially contradictory provisions in the collective agreements, an anti-discriminatory clause may reinforce interpretations that are consistent with equality. There is much potential within collective agreements to promote equality. Creative bargains struck in a context-sensitive fashion can greatly enhance the promotion of equality.

Legislation setting a floor of decent working conditions, including minimum wage laws, restrictions on hours of work, minimum rest periods as well as occupational safety and health legislative systems, serve a crucial equality role. Bringing equality to the workplace has significant economic benefits too. Employers who practice equality have access to a larger and more diverse workforce. Workers who enjoy equality have greater access to training, often receive higher wages and improve the overall quality of the workforce. The profits of a globalized economy are more fairly distributed in a society with equality, leading to greater social stability and broader public support for further economic development.

(To be continued…)

(The writer is a retired Professor in Law at the University of Sri Jayewardenepura, has practised in courts, and holds a PhD. in Law)