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Fourie E "Social Protection Instruments and Women Workers in the Informal Economy: A Southern African Perspective" PER / PELJ 2021(24) -DOI http://dx.doi.org/10.17159/17273781/2021/v24i0a8890
DOI
http://dx.doi.org/10.17159/17273781/2021/v24i0a8890
The world of work has changed and in some instances a realisation now exists that certain forms of work are a reality and not a passing occurrence, and it is of the utmost importance that international regulation provides for this, including work in the informal economy. Specific vulnerable groups and challenges have been identified by international regulators and must now be addressed to extend protection to these workers. International regulation must promote freedom through the enhancement of the capabilities of these workers. International instruments can function as key strategic tools to address inequalities in the workplace by increasing the capabilities of vulnerable groups such as women through empowerment initiatives. The purpose of this contribution is to identify and critically consider the relevant international social security instruments of the ILO and the UN, the impact of international standards, and other global initiatives directed at the social protection of women workers in the informal economy.
Women; informal economy; international instruments; social protection; equality.
International institutions are playing an increasingly important role in the empowerment of women, in the promotion of equality and decent work for all women, and in providing countries with technical assistance to achieve these goals.1
In South Africa international standards play a particularly important role in the development of labour law and are also a source of customary international law.2 After 1994 the new constitutional dispensation recognised the importance of international labour standards as an intrinsic part of a democratic country.3 In S v Makwanyane4 the Constitutional Court stated that for the purpose of section 39(1)(b) (then section 35(1) of the interim Constitution of 1993) public international law includes binding and non-binding law. The Court then specifically refers to the reports of
Elmarie Fourie. BProc (RAU) Advanced Diploma in Labour Law (UJ) LLD (NWU). Senior Lecturer, Head of Department of Public Law, Faculty of Law, University of Johannesburg, South Africa. Email: esfourie@uj.ac.za. This contribution formed part of my LLD study Finding Innovative Solutions to Extend Labour Law and Social Protection to Vulnerable Workers in the Informal Economy (North-West University 2018). ORCiD: https://orcid.org/0000-0002-8647-181X.
1 See for example UN Millennium Goals, such as the eradication of poverty, the promotion of gender equality, decent work and economic growth and reduced inequalities (UN 2015 http://www.un.org/millenniumgoals). Also see the Sustainable Development Goals (UN 2015 http://www.un.org/sustainabledevelopment/ sustainable-development-goals/).
2 Section 39(1)(b) of the Constitution of the Republic of South Africa, 1996 (the Constitution) provides that when interpreting the Bill of Rights, a court, tribunal or forum must consider international law, and s 39(1)(c) provides for the consideration of foreign law. S 233 as follows: "When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law."
3 See s 39(1)(b) of the Constitution. The South African Constitutional Court, in line with the interpretation clause and an explicit purposive approach, has used ILO conventions and recommendations as benchmarks and as important interpretative tools in a number of labour law judgments, to extend protection to workers. See SA National Defence Union v Minister of Defence 1999 20 ILJ 2265 (CC) paras 26 and 30, where the Court refers to art 2 of the Freedom of Association and Protection of the Right to Organise Convention 87 (1948); NUMSA v Bader Bop (Pty) Ltd 2003 3 SA 513 (CC) paras 29-31 where the Court refers to the Freedom of Association and Protection of the Right to Organise Convention 87 (1948), the Right to Organise and Collective Bargaining Convention 98 (1949) and the two key supervisory bodies, namely, the Committee of Experts on the Application of Conventions and Recommendations and the Freedom of Association Committee. In Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) paras 26 and 45 reference is made to the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) as a guide to the interpretation of s 26 of the South African Constitution. This judgment was delivered before South Africa ratified the Covenant.
4 S v Makwanyane 1995 3 SA 391 (CC) para 35.
specialised agencies such as the International Labour Organisation (ILO) to provide guidance as to the correct interpretation of particular provisions of the Bill of Rights.5 The specific status accorded to international law by the Constitution and the application of international law when interpreting legislation and the Bill of Rights can play a very important role when considering the extension of labour and social protection to vulnerable workers and when promoting decent work for all in South Africa.6
South Africa also re-joined the ILO on 26 May 1994 and has since ratified all eight of the fundamental conventions.7
The purpose of this contribution is to identify and critically consider the relevant international social security instruments of the ILO and the United Nations (UN), the impact of international standards, and other global initiatives directed at the social protection8 of women workers in the informal
5 S v Makwanyane 1995 3 SA 391 (CC) para 35. The Court also refers to comparable human rights instruments such as those drawn up by the United Nations Committee on Human Rights. Binding international instruments applicable to social protection and labour protection will thus form part of binding laws, and courts interpreting fundamental rights will be obliged to take these instruments into account. Various international conventions relevant to social protection measures have been ratified by South Africa, among them the Convention on the Rights of the Child (1990) (ratified in 1995) and, recently, one of the most important instruments, namely, the ICESCR. This document was initially signed by President Nelson Mandela in 1994; however, South Africa ratified the ICESCR only in 2015, making it the 164th state party to the ICESCR. South Africa has ratified 27 ILO conventions of which 23 are currently in force. South Africa has ratified all 8 of the fundamental conventions of the ILO (see ILO 2020 https://www.ilo.org/dyn/normlex/en/f?p= NORMLEXPUB:1:0::NO:::).
6 Van Niekerk et al Law@work 32. Furthermore Van Niekerk et al state the following: "First, the Constitution of the Republic of South Africa, 1996 expressly recognises international law as a foundation of democracy … Secondly debates on the social dimensions of globalisation have emphasised the importance of international labour standards not only as a benchmark for the evaluation of domestic legislation, but also as a basis for regulating global trade and establishing norms to guide actions of companies …" (Van Niekerk et al Law@work 23). S 1(b) of the Labour Relations Act 66 of 1995 (the LRA) describes a purpose of the act as to give effect to the country's obligation as a member state of the ILO.
7 Before rejoining, South Africa was a member state from 1919 to 1966. It must also be noted that in s 1 the LRA provides in specific terms for the purpose to give effect to the country's obligations as a member state of the ILO. A link is then provided between its primary objects and the interpretation of the Act in s 3, which provides for an interpretation of the Act in compliance with public international law obligations. The Employment Equity Act 55 of 1998 (the EEA) also contains an interpretative clause in s 3; furthermore, in s 2 the Basic Conditions of Employment Act 75 of 1997 (the BCEA) shares the purpose of the LRA in terms of South Africa's international obligations but contains no express interpretative clause. Also see Du Toit et al Labour Relations Law 78-79.
8 In 2002 the Taylor Committee stated the following: "Moreover, the development paths of African economies and developing countries require a fresh look at social
economy. These considerations will assist in drawing up recommendations on how to meet the many challenges that women in the informal economy face.9 International and regional instruments can function as key strategic tools to address inequalities in the workplace by increasing the capabilities of vulnerable groups such as women through empowerment initiatives.10 However, the aim of the contribution is to focus on relevant international instruments.
The UN is an international organisation established in 1945 and based on the principle of sovereign equality. The purposes of the UN include the maintenance of international peace; the development of amicable relations between nations; the achievement of international cooperation in solving problems of an economic, social, cultural and humanitarian nature; and the promotion of human rights and fundamental freedoms without discrimination.11 Article 7 of the Charter of the United Nations and the Statute of the International Court of Justice (1945) (UN Charter) makes provision for the main organs of the UN, namely, a General Assembly,12 a
protection systems more appropriate to their environment and needs. The reality is that in the developing world, formal sector employment may never become the norm
it is in Europe … The European concept, primarily that of contributory social
insurance, took its basic assumption that social security would develop around formal sector employment. As a result, social security is often described as measures to protect against 'loss of (formal wage) income'. Such a conception is therefore of limited relevance to Africa and the developing world, where the risk of 'insufficient' income (formal or informal) is invariably more prevalent than 'loss' of income" (Committee of Inquiry Transforming the Present 101). For the purpose of this study social protection is used as the wider concept and must be distinguished from social security. Social protection can be seen as a system of social support, not linked to the regular employment relationship. The wider notion is particularly important to workers in the informal economy, where a regular employment relationship is absent. The term refers to a system of general welfare support and protection (Olivier "Concept of Social Security" 26).
9 See Kalula, Okorafor and Bamu "Towards an Effective Regulatory Framework" 15. 10 Kolben "Labour Regulation, Capabilities and Democracy" 70. 11 Article 1 of the Charter of the United Nations and the Statute of the International
Court of Justice (1945) (the UN Charter). The UN currently has 193 member states. The preamble reaffirms faith in human rights, in the dignity of people and in equal rights for all. Unlike its predecessor, the League of Nations, the UN has a larger focus on socio-economic matters (see Davies and Woodward International Organizations 119).
12 The General Assembly consists of members of the UN and may discuss issues on any matter within the scope of the UN Charter. The functions and powers of the General Assembly are set out in arts 10-22.
Security Council,13 an Economic and Social Council,14 a Trusteeship Council,15 a Secretariat16 and an International Court of Justice.17
The aim of this discussion is to consider the core UN human rights instruments applicable to women workers in the informal economy. The Universal Declaration of Human Rights forms the corner stone of the UN's protection and promotion of human rights. The Declaration contains certain important provisions in respect of women workers in the informal economy, such as the right to equality;18 the prohibition of discrimination;19 freedom of movement;20 the right to own property,21 the right to peaceful assembly and association;22 the right to equal access to public service;23 the right to work; protection against unemployment; equality in the workplace; the right to social protection, including social security;24 and the right to education.25 Human rights are protected and promoted through the High Commission for Human Rights,26 the Human Rights Council,27 and human rights treaty bodies.28 The International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966) are together referred to as the International Bill of Human Rights.
| 13 | The main function is the maintenance of peace. The functions and powers are |
|---|---|
| discussed in arts 24-26 of the UN Charter. | |
| 14 | The Council can initiate studies and reports in respect of international economic, |
| social, cultural, educational, health and other related matters, make | |
| recommendations in respect of human rights and fundamental freedoms, and draft | |
| conventions in this regard. The functions and powers are set out in arts 62-66 of the | |
| UN Charter. | |
| 15 | The functions and powers are discussed in arts 87-88 of the UN Charter. |
| 16 | See arts 97-100 of the UN Charter. Nearly half of the UN Secretariat is devoted to |
| socio-economic matters (see Davies and Woodward International Organizations | |
| 116). | |
| 17 | This is the main judicial organ of the UN and members undertake to comply with the |
| decisions of this court in any case to which they are parties. See arts 92-96 of the | |
| UN Charter. | |
| 18 | Articles 1 and 7 of the Universal Declaration of Human Rights (1948) (the UDHR). |
| 19 | Article 7 of the UDHR. |
| 20 | Article 13 of the UDHR. |
| 21 | Article 17 of the UDHR. |
| 22 | Article 20 of the UDHR. |
| 23 | Article 21(2) of the UDHR. |
| 24 | Article 24 of the UDHR. This article also recognises that mothers and children need |
| special care and assistance. | |
| 25 | Article 26 of the UDHR. |
| 26 | This office is responsible for the protection and promotion of human rights, and |
| comments on human rights situations around the globe. | |
| 27 | The Council is the main independent UN governmental body responsible for human |
| rights. | |
| 28 | These are committees of independent experts that monitor the implementation of |
| core international human rights treaties. Provision is also made for independent |
2.1.2 The International Covenant on Economic, Social and Cultural Rights (1966)
The International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) entered into force in 1976.29 Important provisions for women workers in the informal economy include the equal right of women and men to the enjoyment of all economic, social and cultural rights in the Covenant and the fact that state parties must ensure this equal enjoyment.30 Article 6 provides for the right to work,31 and takes cognisance of the importance of an integrated approach to support this. This integrated approach obliges governments to provide technical and vocational guidance, training programmes and policies to achieve the economic, social and cultural development necessary to attain the full realisation of this right.32 This approach supports the empowerment of vulnerable workers to ensure sustainability. Article 7 lists factors that contribute to decent work for all and equal treatment in the work place.33 It is important to note that the wider concept of "workers" is used, thereby including vulnerable workers in the informal economy that would fall outside the scope of the traditional notion of "employee". Social security,34 the social protection for women during and after child birth,35 the right to an adequate living and the right to enjoy the highest attainable standard of physical and mental health are also recognised.36 There is a flexibility clause in respect of developing countries which allows for developing countries to consider their economies in determining the extent to which they can guarantee economic rights to non-
experts to work on a voluntary basis to monitor, report and advise on human rights issues from a country or report from a thematic perspective.
29 This Covenant was ratified by the following SADC countries: Angola; the Democratic Republic of the Congo; Lesotho; Madagascar; Malawi; Mauritius; Namibia; Seychelles; South Africa, Swaziland, the United Republic of Tanzania; Zambia and Zimbabwe (UN 2017 http://indicators.ohchr.org; also see Mpedi and Nyenti Key International, Regional and National Instruments 14).
30 Article 3 of the ICESCR. 31 This includes the opportunity to freely choose a living. 32 Article 6(2) of the ICESCR. 33 These include fair wages, equal remuneration, safe and healthy working conditions,
equal opportunities and regulations in respect of working time. 34 Article 9 of the ICESCR. 35 Article 10 of the ICESCR. Provision is made for paid leave or adequate social
security benefits.
36 Article 11 of the ICESCR. State parties must take steps to ensure the realisation of the right to an adequate standard of living. In respect of health, provisions are made for the reduction of the still-birth rate and infant mortality.
nationals.37 Article 2(1) requires state parties to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of their available resources, with a view to progressively achieving the full realisation of the rights recognised in the present Covenant by all appropriate means, including in particular the adoption of legislative measures. See the internal limitation in section 27(2) of the South African Constitution, which provides as follows: "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights." Reference is made to the rights to health care, food, water and social security. With reference to this flexibility clause, the governments of Madagascar and Zambia have postponed the implementation of Article 13(2) with reference to primary education as a result of its financial implications and other challenges, in particular in respect of implementation.
The abovementioned rights are thus not absolute, since provision is made for state parties to subject the rights to limitations determined by national laws.38 For developing countries or middle-income countries this principle in international instruments can often create budgetary and implementation challenges. However, the flexibility clauses allow these countries to exclude certain groups, and often vulnerable groups such as women and children, from its scope.39
2.1.3 The Convention on the Elimination of All Forms of Discrimination against Women (1979)
The Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW) entered into force in 1981 and is important to all women. This Convention recognises that discrimination against women violates the principle of equality and respect for human dignity, and neglects the contribution of women to the family and society.40 This Convention has
37 Article 2(3) of the ICESCR. Also see Mpedi and Nyenti Key International, Regional
and National Instruments 14. 38 See art 4 of the ICESCR. The limitations are determined by law only in so far as this
may be compatible with the nature of these rights for the purpose of promoting the
general welfare of a democratic society (see Mpedi and Nyenti Key International,
Regional and National Instruments 12). 39 Olivier "Gender Discrimination in Labour Law and Social Security" 233. 40 Discrimination is defined in art 1 of the Convention on the Elimination of All Forms
of Discrimination against Women (1979) (CEDAW) as "any distinction, exclusion or
restriction made on the basis of sex which has the purpose of impairing or nullifying
the recognition, enjoyment or exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any other field."
been ratified by all Southern African Development Community (SADC) countries except Angola. India and Brazil have also ratified this instrument; but both countries have indicated that they are not bound by article 29(1). Mauritius has also indicated this and Lesotho noted that the country is not bound by article 2, with specific reference to the law of succession to the throne of the Kingdom of Lesotho, and the law of succession to the chieftainship. Article 29(1) refers to the resolution of disputes between state parties with reference to the interpretation and application of the Convention. If a dispute remains unresolved it may be submitted for arbitration, and if the parties cannot reach an agreement the matter can be referred to the International Court of Justice.
The recognition of women's contributions to the family and society is important for women workers in the informal economy as their work is often undervalued and their contributions are not recognised in societies with particular reference to their contributions to economies.41 The Convention calls for state parties to prohibit discrimination in policies and provide constitutional and legislative protection to ensure equality between men and women and to eliminate discrimination in all matters.42 Important policy considerations in the Convention include the obligation on state parties to take measures to modify social and cultural patterns of conduct between men and women, to eliminate stereotyping, and to ensure a proper understanding of the role of women in respect of maternity as a social function.43 CEDAW calls for equal rights in respect of education,44 employment (including employment opportunities, remuneration and benefits), social security, health and safety in the work place,45 and health care, specifically during pregnancy, confinement, and postnatal care.46 Like the instruments of the African Union (AU), the Convention takes cognisance of the importance of the empowerment of women in the quest for gender equality and supports an integrated, sustainable approach by providing for equal treatment in respect of access to bank loans, mortgages and other financial services.47 These provisions mean that women in the informal economy who require financial services, such as self-employed street vendors, should have equal access to these essential services. Article 14 explicitly deals with the challenges that rural women face, and addresses these challenges in a comprehensive manner by obliging state parties to ensure that these women participate in planning at all levels. This article promotes substantive equality by recognising the particular vulnerabilities of rural women and specifically addressing these challenges. State parties should ensure that these women have access to adequate health care, training and education, are allowed access to financial services, receive equal treatment in land issues and have the right to organise self-help groups and cooperatives.48 The Convention recognises that women can benefit from other organisations, such as cooperatives, which may more effectively represent their needs.49 Social protection measures include housing, sanitation, electricity and water supply, and state parties must ensure that women have an equal right to decent living conditions.50
| 41 | Care work and domestic work are often seen as the everyday duties of women |
|---|---|
| workers in the informal economy, disregarding their contribution to families, society | |
| and the economy of the country. Domestic workers in return allow many women for | |
| whom they work to enter or re-enter the work force since they take care of the | |
| household chores of a family. | |
| 42 | Articles 2 and 16 of CEDAW. |
| 43 | Article 5 of CEDAW. |
| 44 | Article 10 of CEDAW. |
| 45 | Article 11 of CEDAW. This article also calls for the prevention of discrimination on |
| the grounds of marriage and maternity. | |
| 46 | Article 12 of CEDAW. |
The Convention provides extensive protection against discrimination to all women and promotes equal treatment in all respects. However, the actual implementation by state parties remains problematic.51 This instrument also addresses many of the challenges faced by women workers in the informal economy and provides sustainable solutions,52 although many of these challenges persist in numerous countries that have ratified the Convention.53 These challenges often exist in developing countries due to
47 Specifically with regard to self-employed women in the informal economy, equal treatment in this respect can promote their standard of living and assist them in reaching more sustainable solutions. See arts 13 and 14 of CEDAW.
48 Article 14(2)(e) of CEDAW. 49 Other workers' organisations such as co-operatives, and member-based
organisations are often better equipped to provide a voice for these workers 50 Article 14(2)(h) of CEDAW. 51 South Africa, for example, has a constitution that provides for equal rights (s 9 of the
Constituion) for all and supports the notion of substantive equality. However, domestic workers remain excluded from the provisions of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 and the enforcement of their labour rights through labour inspectors remains problematic.
52 The Convention recognises that discrimination against women is often deeply rooted at various levels, including at a societal level, and that in order to overcome this, issues must be addressed at this level within communities. Art 5 of CEDAW places an obligation on state parties to take appropriate measures to create an understanding of the social function of women. Participation by women on all levels is encouraged (see arts 7 and 8). Sustainable solutions also include equal access to education, including educational information on health and family well-being (art 10) and access to vocational training (art 11).
53 See Kalula, Okorafor and Bamu "Towards an Effective Regulatory Framework" 1819.
a lack of resources and economic constraints. In the SADC, the challenges include extreme poverty, income inequality and the HIV pandemic.
One then needs to question the effectiveness of the Committee on the Elimination of Discrimination against Women in monitoring the progress made by countries in implementing these rights.54
In respect of women workers, other UN instruments and provisions that may have an impact on the social protection of these workers include the equality principle in the Convention on the Rights of Persons with Disabilities (2006) (CRPD);55 the Convention on the Rights of the Child (1989) (CRC);56 the International Covenant on Civil and Political Rights (1966) (ICCPR)57 and the Declaration of Commitment on HIV and AIDS (2001).58 Racial discrimination is condemned in the Convention on the Elimination of All Forms of Racial Discrimination (1965) (CERD).59 Many women workers in the informal economy represent a previously disadvantaged racial group and are vulnerable as a result of this. In South Africa most domestic workers, informal traders and waste pickers are African women, and thus
54 See art 17 of CEDAW.
55 This Convention requires the equal treatment of people with disabilities by state parties as well as their right to social protection. Brazil and India are state parties to this Convention. Botswana is the only SADC party that has taken no action with reference to this instrument.
56 The best interests of the child ae of paramount importance and provision is made for social security benefits for children. This Convention has been ratified by all state parties except for the US, which is the only state party that is only a signatory.
57 Forced labour and slavery are prohibited (art 8 of the International Covenant on Civil and Political Rights (1966) (ICCPR)). State parties to this instrument include all SADC counties.
58 This Declaration deals with care, support and treatment, human rights, the reduction of vulnerability, vulnerable children, alleviating the socio-economic impact of HIV and AIDS, the value of research and development, conflict and disaster-affected regions, resources and monitoring. Core principles include the elimination of all forms of discrimination as well as all forms of violence against women. Under the notion of "violence" is included abuse, rape and the trafficking of women and girls; see art 61 of the Declaration of Commitment on HIV and AIDS (2001). Poverty and the lack of empowerment among women are recognised as specific causes that add to the vulnerability of women and girls in respect of HIV and AIDS, as well as the need for policies to address the gender dimension of this epidemic (see art 62). In 2017 StatsSA released statistics indicating that male-headed households had an average annual income of R165 853 compared to the income of female-headed households of R98 911 (Stats SA 2017 http://www.statssa.gov.za/?p==9922).
59 This Convention obliges state parties to eliminate and prohibit racial discrimination (see art 8 of the Convention on the Elimination of All Forms of Racial Discrimination (1965) (CERD)).
represent a previously disadvantaged group. Most SADC countries are state parties to the CERD; however, Angola is only a signatory.
These Conventions can function as important tools in the achievement of equality for workers in the informal economy as many of these workers are women and, in many countries, such as South Africa, domestic workers predominantly represent a previously disadvantaged racial group and often are particularly vulnerable to exploitation and discrimination. The
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) regulates the protection of the interests of migrant workers and members of their families.60 Only three SADC countries are signatories to this instrument, namely Lesotho, Mozambique and Seychelles. Even developed countries such as Germany and France have not taken action to ratify this instrument.
Several of the treaties are supported by optional protocols.61
UN Women is a UN organisation dedicated to gender equality and the empowerment of all women and is important to women workers in the informal economy.62 UN Women endeavours to make the vision of the Sustainable Development Goals (SDGs) a reality for all women and girls.63 The 17 Sustainable Development Goals64 have replaced the eight Millennium Development Goals (MDGs) with a new 2030 Agenda for Sustainable Development and calls for countries to build on the Millennium Development Goals with this new agenda. These 17 goals function as a new 2030 global roadmap and set concrete deadlines. The goals balance the economic, social and environmental dimensions of sustainable development and seek to achieve what the MDGs could not, in reaching the
60 The preamble to the International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families (1990). 61 The Optional Protocol to the Covenant on Economic, Social and Cultural Rights
(1966); the Optional Protocol to the International Covenant on Civil and Political
Rights (1966); the Optional Protocol to the Convention on the Elimination of All
Forms of Discrimination against Woman (1979); and the Optional Protocol to the
Convention on the Rights of People with Disabilities (2006). These Protocols aim to
supplement the treaties. 62 UN Women date unknown http://www.unwoman.org. UN Women became
operational in 2011 after the adoption of Resolution 64/289. 63 UN Women date unknown http://www.unwoman.org. 64 The 17 goals can be found at UN 2015 http://www.un.org/millenniumgoals/.
poorest and most vulnerable.65 Poverty is recognised as the greatest global challenge.
Gender equality, the empowerment of women and decent work for all are important goals for all women.66 Goal 5, gender equality, is a stand-alone goal that recognises the importance of equality for women.67 Early in 2016 the UN Secretary-General established the High-Level Panel on Women's Economic Empowerment to ensure that these goals become a reality for all women and girls.68 The panel demonstrates the importance of various role players in support of a participatory and integrated approach to ensure the empowerment of women, and includes representatives of state parties, governments, academics and various international organisations.69 These partnerships at regional, national and international levels are crucial when considering the empowerment of women. In 2016 Ban Ki Moon, the UN Secretary-General, stated the following:
The empowerment of [the] world's women is a global imperative. Yet despite important progress in promoting gender equality, there remains an urgent need to address structural barriers to women's economic empowerment and full inclusion in economic activity.70
Although 143 state parties constitutionally guarantee equality between men and women, this still means that 50 do not do so.71 Constitutional guarantees often do not translate into gender equality for all in real life, as discrimination continues to exist. Goal 8, which deals with decent work and
65 These goals came into effect in January 2016.
66 Empowerment and gender equality for all women and girls include equal access to education, economic resources, political participation, and equal opportunities with men and boys for employment, leadership and decision making at all levels (UN 2015 http://www.un.org/millenniumgoals/ para 20). Countries such as Jamaica showed a commitment to Goal 5, gender equality and Goal 8, decent work, by signing the ILO Domestic Workers Convention 189 (2011) in September 2016. This clearly indicates how various international campaigns and instruments can be integrated to achieve decent work and equality for all, even when implemented progressively, for a category of workers such as domestic workers, and that the cooperation between these organisations can make decent work a reality for all (UN Women date unknown http://www.unwomen.org/en/about-us/about-un-women).
67 This goal includes the elimination of all forms of discrimination; the recognition and value of unpaid care and domestic work; the effective participation of women at all levels; and equal access to economic resources. The achievement of equality in this regard is supported by engendering public services, infrastructures, policies and legislation. Without a specific gendered approach at all levels to address the inequalities faced by women, the notion of substantive equality will not be realised. Thus, a mere extension of existing provisions will not achieve this goal.
68 Klugman and Tyson Leave No One Behind 1. 69 Klugman and Tyson Leave No One Behind viii. 70 Klugman and Tyson Leave No One Behind 11. 71 UN 2016 https://www.un.org/sustainabledevelopment/wp-content/uploads/
2016/08/5_Why-It-Matters-2020.pdf.
economic growth, includes the protection of labour rights, the eradication of child labour and the promotion of a safe working environment for all workers, particularly in respect of migrant women workers and those in precarious employment.
The UN Resolution on Transforming our World: the 2030 Agenda for Sustainable Development also recognises the value and positive contribution of migrants to inclusive growth and sustainable development.72 The eradication of poverty requires policy frameworks at national, regional and international levels and policies must have gender-sensitive developmental strategies. These universal goals are applicable to developed, middle-income and developing countries. However, national realities are taken into account and developing countries require special attention.73 Developing and middle-income countries face various challenges with regard to the implementation of these goals, such as financial limitations and limited resources. Regional and sub-regional frameworks are recognised as important building blocks in the realisation of the goals on national level.74 By recognising the challenges in these countries and with the proposed support, the goals can become a reality for many of the targeted vulnerable and poor. Developing countries can strive to achieve this through various programmes, policies and partnerships. The notion of global solidarity created by the Sustainable Development Goals and country endeavours to achieve 2030 Agenda are powerful instruments to motivate countries to extend protection to the vulnerable and poor across the world. UN Women endeavours to make these goals a reality for all women and girls through various programmes. Through UN programmes supported by the Women's Fund for Gender Equality they have, for example, assisted poor women in the United Republic of Tanzania to have
72 The Resolution was adopted on 25 September 2015. See Resolution on Transforming our World: The 2030 Agenda for Sustainable Development GA Res 70/1, UN Doc A/RES/70/1 (2015) para 29.
73 UN Department of Economic and Social Affairs 2015 https://sustainabledevelopment.un.org/post2015/transformingourworld para 5. The goals will be implemented on national, regional and global levels. A notion of global solidarity exists and aims to improve the lives of the poorest and most vulnerable. The challenges that developing and middle-income countries face are recognised and support structures on various levels involving multiple stakeholders are envisaged.
74 Specific regional programmes are also recognised and supported, such as the African Union's Agenda 2063 and the New Partnership for Africa's Development (UN Department of Economic and Social Affairs 2015 https://sustainabledevelopment.un.org/post2015/transformingourworld para 21).
access to financial services, social protection and other livelihood
75
programmes.
It is important to consider the means of implementation of these goals. A key principle for the successful implementation is the concept of "global partnerships" that includes governments, the private sector, civil societies, institutions from the UN system and other relevant actors as well as the mobilisation of available resources.76 Successful implementation also depends on concrete policies, programmes, actions and targets. Country progress must also be reviewed and monitored at all levels.
2.1.6 Social security instruments and the International Labour Organisation
The concept of social security and the first international standard-setting activities of the ILO can be traced back to 1919.77 The preamble to the ILO constitution refers to the prevention of unemployment, the protection of workers against sickness, disease and injury arising out of employment, and provision for old age and injury. In the preamble to the constitution specific mention is made of particularly vulnerable groups, such as women and children. During the first 20 years the ILO adopted 14 conventions and 11 recommendations setting international standards in respect of social security.78 In 1944, near the end of World War II, the Declaration of Philadelphia stated that economic, financial and social policies should be integrated and the concept of social security was included among the fundamental principles of work. The Declaration actually embraced the wider notion of social protection, as it provides for world programmes that will achieve the following:
75 UN Women 2014 http://www.unwomen.org/en/news/in-focus/end-violence-againstwomen/2014/poverty.
76 Resolution on Transforming our World: The 2030 Agenda for Sustainable
Development GA Res 70/1, UN Doc A/RES/70/1 (2015) para 39. 77 ILO 2011 http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 6. 78 ILO 2011 http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 6.
e) theassuranceof equality of educational andvocationalopportunity.79
The Declaration was the first international instrument to recognise social security as a human right.80 The rights-based approach to social security increases accountability of states, thereby also "legitimising a more progressive and humanistic approach to development".81
In 1999 the Decent Work Report highlighted the large number of workers who remain without social security in a global economy, and a campaign to extend coverage also to developing countries was initiated. In 2001, embedded in the decent work concept, the International Labour Conference prioritised the extension of social security coverage and emphasised the importance of national strategies to include employment and social policies.82 In 2002 the Supiot group (a multidisciplinary group chaired by Professor A Supiot) considered the concept of decent work in relation to social security and the increasing informal economy. They recommended that the current standards be adapted and reviewed in line with the concept of decent work.83
This global campaign continued in 2003 and in 2008. In the ILO Declaration on Social Justice for Fair Globalisation social protection was one of the four strategic objectives. The importance of voice and representation remained throughout this evolution of the ILO's mandate in respect of social security, as did the value of promoting international standards in this field. So far, the ILO has adopted 31 conventions and 24 recommendations in respect of social security, illustrating the importance of social security in respect of the ILO's mandate and activities.84 The development of the concept of social security in respect of the ILO can be seen in three stages, starting out with social insurance, progressing to the concept of social security as reflected in the Social Security (Minimum Standards) Convention 102 (1952) and, finally moving on to the broader concept of social protection.85 In 1944 the Declaration of Philadelphia mentioned additional forms of social benefits and support.86
| 79 | See para III f-j of the Declaration of Philadelphia (1949). | ||
|---|---|---|---|
| 80 | ILO | 2011 | http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm |
| 65, 68, 69, 70. | |||
| 81 | ILO | 2011 | http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm |
| 73. | |||
| 82 | ILO 2011 http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 7. | ||
| 83 | Tapiola "Global Standards" 46. | ||
| 84 | ILO 2011 http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 8. | ||
| 85 | ILO 2011 http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 9. |
In 2011 two main problems were identified with existing social security instruments, namely that certain provisions are outdated, and that existing instruments are not in line with the ILO's objective of providing social security to all, as a large number of workers in the informal economy were excluded.87
The exclusion of those outside the formal economy who continued to live in poverty without adequate social protection placed the extension of coverage to those workers at the "heart of the ILO's mandate and mission".88 The ILO recognises that social protection includes social security, conditions at work, occupational safety, migration, and HIV and AIDS policies. Social protection floors are defined as sets of basic social security guarantees that secure protection aimed at preventing or alleviating poverty, and eliminating vulnerability and social exclusion.89 Extending social protection to workers is vital in realising the fundamental right to social security. A new global partnership formed for universal social protection aims to help countries to extend social protection to the poor and vulnerable.90
The limited scope of social protection schemes, in particular the specific exclusion of workers in the informal economy, may be ascribed to factors such as bias in favour of the formal sector in social insurance schemes, the requirement for the existence of an employer-employee relationship, the low contributory capacity of workers in the informal economy, and the incompatibility of priority needs.91 These factors marginalise women
86 The provision of adequate nutrition, housing and facilities for recreation and culture is included in part III of the Declaration. 87 ILO 2011 http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 19; Becker, Pennings and Dijkhoff International Standard Setting 26. 88 ILO 2011 http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 13.
89 Rodgers et al International Labour Organization and the Quest for Social Justice. The preamble to the ILO's constitution recognises the need to improve labour conditions through the prevention of unemployment, the protection of workers against sickness, disease and occupational injuries, and provision for old age. The Declaration of Philadelphia (1949) recognises social security as a fundamental principle of work (ILO 2011 http://www.ilo.org/global/ standards/WCMS_152909/lang--en/index.htm 8).
90 This global partnership includes the ILO, the World Bank Group, the African Union, and the European Commission (ILO 2016 http://www.ilo.org/global/about-theilo/newsroom/news/WCMS_525544/lang--en/index.htm).
91 Mpedi "Informal Sector" 289.
workers in particular, if one considers their representation in the informal economy as well as their lack of access to work in the formal economy.92
Women in Informal Employment Globalising and Organising (WIEGO) recently highlighted the most pertinent challenges that women workers in the informal economy face in respect of social protection, namely, access to high-quality and affordable health care, including occupational health and safety; support for caring roles, particularly childcare; and income support for the elderly.93 Certain categories of women workers in the informal economy may face greater challenges in respect of access to social protection.94 An informal trader or waste picker may have more difficulties in accessing social insurance schemes than a domestic worker with an identifiable employer-employee relationship.95
The ILO's strategy to attain social security coverage for all includes a horizontal dimension, namely the extension a set of core social security guarantees by establishing a social protection floor, as well as a vertical dimension that seeks the provision of a wider range of benefits and the extension of coverage in line with the existing social security conventions, through a gradual approach.96 This has led to the adoption of the Social Protection Floors Recommendation 202 (2012), which is an important instrument when considering the extension of social protection to vulnerable (women) workers in the informal economy. A principal aim of this instrument is the social inclusion of those in the informal economy.97 The recommendation promotes innovative measures to be implemented in a national framework rather than concrete standards. This is considered a better approach to the extension of social security for all and a more realistic approach for developing countries, as the recommendation provides guidance to member states on establishing and maintaining social protection floors.98 In this regard, developing and middle-income countries
92 Olivier "Gender Discrimination in Labour Law and Social Security" 227. 93 WIEGO date unknown http://www.wiego.org/wiego/core-programmes/social-
protection. 94 Yasmeen 2016 http://www.wiego.org/blog/%E2%80%9C-expression-%E2%80%98
social-protection%E2%80%99-didn%E2%80%99t-really-exist-20-years
ago%E2%80%9D. 95 Yasmeen 2016 http://www.wiego.org/blog/%E2%80%9C-expression-%E2%80%98
social-protection%E2%80%99-didn%E2%80%99t-really-exist-20-years
ago%E2%80%9D. 96 ILO 2011 http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm
124. 97 Social Protection Floors Recommendation 202 (2012) para 1(e). 98 Seeart1 ofthe Social Protection Floors Recommendation 202 (2012). Also see
Dijkhoff and Mpedi "Recommendation on Social Protection Floors" 6.
with limited resources, including limited financial resources, may progressively establish tailor-made lower cost schemes to provide for vulnerable workers in the informal economy.99 Nevertheless, an integrated approach is required and this will require, for example, that apart from merely providing cash transfers to women as mothers, empowerment and skill development programmes must be established to develop skills and enhance women's opportunities for access to labour markets.100
The preamble recognises the value of social security as a tool in the prevention and reduction of poverty, inequality, social exclusions, social insecurity, the promotion of gender and racial equality, and in support of the transition from informal to formal employment. This is pertinent to women workers in the informal economy as often they are excluded from coverage and face discrimination on multiple grounds such as race and gender. The preamble also undeniably recognises the link between sustainable social security systems and the transition to formal employment. Article 3 recommends that member states apply important principles such as nondiscrimination and gender equality and that they demonstrate a responsiveness to special needs. This requirement to be responsive to special needs is an important principle for these workers, as it has been highlighted that specific groups of workers in the informal economy, such as domestic workers and home workers, have very specific needs in respect of social protection.
Social protection floors should include basic social security guarantees, including essential health care, which encompasses maternity care; basic income security for children, including access to nutrition, education and care; income security for persons who are unable to earn sufficient income;101 and a basic income for older persons.102 When extending social protection to these workers, consideration must be given to their diverse working circumstances and different needs in this regard. Hence this diversity should include diverse methods and approaches in respect of financing mechanisms and delivery systems.103 Article 15 specifically mentions the social inclusion of persons in the informal economy. The recommendation calls for social security strategies to support the growth of
99 Olivier "Expanding the Boundaries of Social Protection". 100 Also see Dijkhoff and Mpedi "Recommendation on Social Protection Floors" 6. 101 This includes persons of active age who are unable to earn an income as a result of
sickness, unemployment, maternity and disability. See art 5 of the Social Protection
Floors Recommendation 202 (2012). 102 See art 5 of the Social Protection Floors Recommendation 202 (2012). 103 See art 3 of the Social Protection Floors Recommendation 202 (2012).
formal employment and the reduction of informality. Member states are responsible for monitoring, and limited scope is provided for supervisory bodies to monitor progress.104 Through technical assistance the ILO has supported the development of social protection floors in several countries.105
Even without its having the binding nature of a convention, the recommendation has led to a number of important initiatives in the extension of social protection to those previously excluded. These initiatives include the following:
a pilot maternity benefits scheme for women in the informal economy in Ghana;106
Lesotho considered national health care (see their National Health Insurance Bill);107
Madagascar initiated a project to extend coverage to workers and their families in agriculture and fisheries in the informal economy by extending coverage in respect of unemployment and sickness; and
in Namibia the establishment of basic guarantees for income security and access to health care for all is being considered.108
104 Pennings "Historical and Theoretical Background" 28.
105 The ILO has supported social protection floors in more than 136 countries, including a national social protection scheme in Columbia, a non-contributory pension scheme in Peru, the extension of health, pension and child benefits in Uruguay and a universal child benefit scheme in Argentina (ILO Building Social Protection Floors for All).
106 The objective of also promoting maternal health and childcare is linked to the Millennium Development Goals. This is a high priority in Ghana, as in 2005 the World Health Report indicated that 75% of all neonatal deaths could be prevented if women and children were receiving adequate care during pregnancy, childbirth and thereafter. The extension of social protection measures to the most vulnerable in Ghana is characterised by the involvement of member-based organisations (MBOs) and other international organisations such as the Rockefeller Foundation.
107 Lesotho is characterised by poverty and various vulnerabilities of its people, including the endemic nature of HIV and AIDS in the country. It is categorised as a least developed country. Nevertheless, this SADC member state has launched a number of initiatives to extend social protection. These measures include a universal old age pension (OAP); a child grants programme; food security programmes; and the Free Primary Education programme. The latter programme aims at the provision of universal free primary education and currently has an enrolment of 84%, one of the highest rates found in sub-Saharan Africa (Olivier 2013 DSA 99, 101-102, 108).
108 ILO 2011 http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 125-128.
Other SADC countries currently considering legal measures to extend protection include the United Republic of Tanzania109 and Zimbabwe.110 These examples highlight that health care is an important consideration for these countries in their endeavours to extend protection to all and is often a starting point in the extension of social protection.
In the ILO's quest to adopt a text that is flexible and that will appeal to developing countries, they have neglected to provide general criteria to evaluate progress and monitoring, nor is there an obligation to report on this to the ILO.111 An attempt to find a balance between flexibility and minimum standards means that the effect of the recommendation on the extension of social protection to all remains questionable. However, it certainly illustrates the predicament in which the ILO finds itself when balancing the various interests of member states and vulnerable workers in setting international standards. In countries such as South Africa, where the Constitution112 provides imperatives for the consideration and application of international law, international social security instruments are more effective.113
In addition to the international instruments, there is also a number of international social security agreements, both bilateral and multilateral. The aim of these agreements is often to extend coverage to non-citizens and to assert the fundamental principles of equality of treatment. The maintenance of acquired rights, the payment of benefits abroad, the determination of acquired rights and the maintenance of rights in the course of acquisition and reciprocity are found in these agreements.114 Bilateral and multilateral agreements can play an important role where ILO instruments are not ratified or where universal coverage is not possible due to economic constraints in a country. These agreements can provide a more realistic approach to coverage with consideration of national resources. They can also allow for the development of specific concepts pertaining to vulnerable groups of workers in countries and regions.
109 Introduction of a universal old age pension scheme and access to medical care for
all is considered (ILO 2011
http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 128). 110 The introduction of a universal healthcare scheme is considered (ILO 2011
http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 128). 111 Pennings "Historical and Theoretical Background" 28. 112 See ss 39(1), 232 and 233 of the Constitution. 113 Pennings "Historical and Theoretical Background" 44. 114 Mpedi and Nyenti Towards an Instrument for the Portability of Social Security
Benefits 2, 34, 36, 37.
2.1.6.1 Key social security conventions applicable to women workers in the informal economy
The Social Security (Minimum Standards) Convention 102 (1952) is a comprehensive instrument which includes the nine classic contingencies of social security, namely, medical care benefits; sickness benefits; unemployment benefits; old age benefits; employment injury benefits; family benefits; maternity benefits; and invalidity and survivors' benefits.115 This Convention sets quantitative standards for minimum protection and targets for social progress; it furthermore promotes equality of treatment of all.116 For developing countries it is important that this Convention contains flexibility clauses for the realisation of these provisions according to national economic development. Article 3, for example, allows for temporary exemptions in respect of persons covered and the rate and duration of benefits, to members whose economy and medical facilities are insufficiently developed.
This Convention has not been successful in extending protection to workers in the informal economy and is therefore not achieving the objective of social protection for all or reducing poverty. The Convention allows member states to adhere to minimum standards, but permits the exclusion of persons from the scope of the coverage.117 The Convention does not address social risks such as poverty or new risks such as HIV and AIDS.118 The classic nine risks are not always risks that women in the informal economy experience. With reference to the traditional categories of contingencies and workers in
115 The Income Security Recommendation 67 (1944) provides for income security during these contingencies. Provision must be made through social insurance and where this is not available, social assistance should be provided. The recommendation is premised on the employment relationship and although provisions are made for the self-employed, most informal economy workers will not benefit from these principles due to the lack of an employer-employee relationship, low contributory capacity and incompatible priority needs (Mpedi "Informal Sector" 290).
116 ILO 2011 http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 102.
117 Article 15 part III of the Social Security (Minimum Standards) Convention 102 (1952). Art 67 applies to periodical payments of benefits and art 3, for example, allows for temporary exemptions in respect of persons covered and the rate and duration of benefits, to members whose economies and medical facilities are insufficiently developed. This allows member states to limit the scope of coverage accordingly (Dijkhoff "Guiding Role of ILO Convention No 102" 57).
118 Tapiola "Global Standards" 45. Risk-creating conditions are not considered. These include natural disasters and crop failure. Other risks, in particular in sub-Saharan countries, include wars (Mpedi "Informal Sector" 291).
the informal economy, such as informal traders and waste pickers, Sankaran states the following:
For the self-employed in the informal economy, the loss of assets, loss of access to markets and exposure to risks are often reasons for their economic insecurity.119
A better approach for developing countries would be to depart from a list of social risks to policy instruments promoting objectives.120 Such an approach would allow for innovative and tailor-made designs in the extension of social protection measures to informal economy workers. The Social Protection Floors Recommendation 202 (2012) endeavours to fill certain of these gaps in providing for the basic needs of all and extending coverage to all. Olivier comments on the narrow conceptual framework of this instrument and other international social security standards of the ILO as follows:
[T]he conceptual framework emanating from ILO social security standards, with particular reference to the most eminent and comprehensive instrument, namely the ILO Convention 102 of 1952 on Social Security (Minimum Standards), is reminiscent of an era of conceptual protectionism vis-à-vis females, of male preference and female subordination – this flows amongst others from reliance in the Convention on the essentially male comparator (employment) and (male) breadwinner concepts as a yardstick for determining compliance with the Convention and regulating access to social security benefits, the constant reference to widows and children (as dependants), and the absence of coverage for widowers.121
As a result of the low ratification rate of social security conventions, social security was placed on the 2011 ILO agenda.122 The informal economy was mentioned as being a major obstacle against the ratification of this Convention for many countries, and the ILO recognised that for developing countries, where most workers are in the informal economy, ratification of the Convention remains a challenge.123 It must also be noted that for workers in the informal economy in developing countries, living in poverty is a reality, and providing them with adequate social protection measures would also require improving their standard of living.124
119 Sankaran 2012 CLLPJ 90. 120 Smit "Institutional Framework, Legal Instruments and Legal Techniques" 199. 121 Olivier "Gender Discrimination in Labour Law and Social Security" 220. 122 Becker, Pennings and Dijkhoff International Standard Setting 25. Also see ILO 2011
http://www.ilo.org/global/standards/WCMS_152909/lang--en/index.htm 19. 123 Becker, Pennings and Dijkhoff International Standard Setting 25. 124 Olivier "Expanding the Boundaries of Social Protection".
The principles of this Convention125 should include women workers in the informal economy, as the definition of “woman” is "any female person without discrimination whatsoever", and as the Convention applies to all women, including those in atypical forms of dependent work.126 The wording of the Convention contains no language that limits its application to the formal economy. It provides for health protection,127 maternity leave,128 leave in the case of illness129 and other benefits.130 It must be noted that the Domestic Workers Convention 189 (2011) provides that domestic workers enjoy conditions not less favourable than other workers in respect of maternity.131 The Maternity Protection Convention does not contain restrictive eligibility criteria. Restrictive criteria such as minimum working hours or a period of continued employment would hinder accessibility and once again exclude a number of vulnerable women workers.132 The insecurities and often irregular employment conditions associated with work in the informal economy would make it difficult to collect social insurance contributions in respect of maternity benefits. It is suggested that in such cases these workers may benefit from public funds and social assistance. Workers in the informal economy such as domestic workers are clearly included under the scope of this Convention. However, the actual enforcement of often existing national legislative provisions remains problematic due to the complex and diverse nature of their employment and the lack of adequate enforcement mechanisms. Pregnancy thus often results in job loss.133
In 2017 alone 300 000 women globally died from causes related to pregnancy and childbirth,134 highlighting the importance and value of this
125 This Convention has been ratified by 54 countries. South Africa has not ratified the Convention; the only SADC country that has ratified the Convention is the Democratic Republic of the Congo. Also see Maternity Protection Recommendation 191 (2000).
126 Article 1 of the Maternity Protection Convention 183 (2000). 127 Article 3 of the Maternity Protection Convention 183 (2000). 128 Article 4 of the Maternity Protection Convention 183 (2000). The period of maternity
leave is subject to the specification by member states. 129 Article 5 of the Maternity Protection Convention 183 (2000). 130 Article 6 of the Maternity Protection Convention 183 (2000). Provision is made for
cash benefits during this period and regulations through social insurance or public funds in accordance with national laws. Art 6(6) provides for social assistance where women do not qualify for cash benefits in terms of national laws.
131 Article 14(1) of the Maternity Protection Convention 183 (2000). 132 ILO Domestic Workers Across the World 86. 133 ILO Domestic Workers Across the World 85. 134 UN Millennium Development Goals Report 2014 8.
Convention. Worldwide fewer than 40 per cent of women in employment are covered by law under mandatory maternity cash benefits. Moreover, due to ineffective enforcement and implementation, effective coverage is even lower.135 Ensuring effective access to quality maternal health is of particular importance in developing countries, where the informal economy accounts for a large proportion of employment, and is an essential prerequisite for the achievement of gender equality.136 Governments should endeavour to provide universal access to maternal health care, specifically for those most vulnerable. Vulnerable women workers in the informal economy also need access to basic services, such as shelter, power, water, basic infrastructure and sanitation. This Convention certainly has the potential to be a powerful tool in the protection of women workers. Unfortunately, ratification of the Convention remains low, as only 29 countries have ratified it.137 The objectives of the Convention are to ensure the safety of pregnant women and their new-born babies during maternity and pregnancy and to ensure job security during this time.138 Protection against dismissal and the right to return to work are also necessary elements of maternity protection.139 The Social Protection Floors Recommendation140 also urges member states to provide free prenatal and postnatal medical care to the most vulnerable.141 In 2019 statistics indicated that 45 per cent of women in employment were protected by law under mandatory cash benefit schemes.142 Extending maternity protection to vulnerable women workers in the informal economy would improve their working conditions, income security, and gender equality and simultaneously strengthen their rights as workers, including the right not to be unfairly dismissed.143
Although the Occupational Safety and Health Convention 155 (1981)144 was designed to provide for workers in the formal economy, strong arguments exist for the extension of national policies to workers in the informal economy. This Convention is of particular importance to workers in the
135 ILO Social Protection for Maternity xi. 136 ILO Social Protection for Maternity xi. Countries such as South Africa, Bangladesh,
Brazil, India and Indonesia have extended coverage to previously excluded groups. 137 ILO Domestic Workers Across the World 86. 138 ILO Domestic Workers Across the World 85. 139 ILO Domestic Workers Across the World 91. 140 Social Protection Floors Recommendation 202 (2012). 141 Article 8 of the Social Protection Floors Recommendation 202 (2012). 142 ILO World Social Protection Report 58. 143 ILO Domestic Workers Across the World 86. 144 There are 66 countries that have ratified this Convention (ILO 2020
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:1:0::NO:::).
informal economy as their place of work determines the risks they face, which often include unsafe and hazardous conditions. They often find themselves exposed to poor conditions of work, lacking sanitary facilities and access to running water, and with low or non-existing health and safety standards.145 As occupational accidents in this sector are seldom reported, policy-making becomes problematic without accurate statistics. Existing mechanisms can be used by extending the provisions of the Convention. The role of the labour inspector could be revisited and labour inspectors could assist with the training and education of workers in respect of health and safety standards.
The importance of universal social protection on the global agenda must not be underestimated. On 21 September 2016 the World Bank Group and the International Labour Organization inaugurated the Global Partnership for Universal Social Protection. This partnership aims to realise a number of benefits, such as pensions, maternity, disability, and child benefits to all.146 This is in line with the 2030 Agenda, and Goal 1.3 that requires appropriate national social protection systems and measures for all, including floors, and goal 8 of the then Millennium Developmental Goals to promote sustained, inclusive and sustainable economic growth, full productive work and decent work for all.147
The ILO has adopted the concept of decent work,148 which has set four objectives for all, namely, employment opportunities,149 workers' rights, social protection and representation.150 These four objectives must be seen as integrated and intrinsic to this concept and should not be viewed
145 ILO Domestic Workers Across the World 86. 146 ILO 2016 http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_525544 /lang--en/index.htm. 147 ILO 2016 http://www.ilo.org/global/about-theilo/newsroom/news/WCMS_525544/lang--en/index.htm.
148 According to the ILO, decent work is based on the idea that work is "a source of personal dignity, family stability, peace in the community, democracies that deliver for people and fuels economic growth that expands opportunities for productive jobs and enterprise development." The goal is to promote decent work along the entire continuum from the informal to the formal end of the economy, and in development-orientated, poverty-reduction and gender-equitable ways (ILO ILO at Work).
149 For the informal economy this means access to information that improves the capacities of these workers to find employment opportunities, and integrated policies that promote their economic activities and growth strategies (ILO Informal Economy and Decent Work 11).
150 ILO Resolution Concerning Decent Work and the Informal Economy (2002) para 2.
independently.151 Tensions naturally exist between these objectives, for example, between the creation of employment opportunities and the provision of protection to these workers.
The concept of decent work could be used to provide impetus to the improvement of the precarious position of workers in the informal economy. The notion of "decent work" is an expression of the ILO's integrated approach and provides for a comprehensive foundation which brings all the programmes together and allows developing countries to develop more effective strategies for the achievement of their labour and social goals.152 However, Theron153 argues that the concept of decent work is vague and conceptually incoherent, and therefore unable to create a new paradigm for workers. Moreover, he154 describes the adoption of the concept of decent work by the ILO as a response to its own legitimacy crisis following the defeat of the contract labour convention and the persistently low ratification rate of conventions by developing countries. Le Roux155 argues that against the backdrop of a transformative constitution, the decent work paradigm may be seen as an issue of social justice, as the concept of decent work poses many questions of social justice rather than questions of labour law. The concept of decent work and the framework of transformative constitutionalism may be the basis for vulnerable workers in the informal economy in South Africa to be empowered to challenge the injustices they face arising from their poverty.156
The 2002 Resolution Concerning Decent Work in the Informal Economy reached important conclusions about the informal economy such as the "conceptual difficulties" arising from the extreme diverse nature of the informal economy; the variation of challenges across national, rural and urban areas; the lack of protection and representation contributing to the poverty of many of these workers; the degrees of vulnerability of these workers; the importance of governance in the proper regulation of the informal economy; the fact that women are among the most vulnerable groups in the informal economy; and the challenges in respect of the legal and economic empowerment of these women workers. The successful
151 Theron 2014 ILJ 1833. 152 Rodgers et al International Labour Organization and the Quest for Social Justice. 153 Theron 2014 ILJ 1833. 154 Theron 2014 ILJ 1833. 155 Le Roux "Advancing Domestic Workers' Rights" 55. 156 Le Roux "Advancing Domestic Workers' Rights" 56.
implementation of any decent work programme is dependent on an in-depth understanding of the nature of the informal economy.
The ILO Director at the time, Juan Somavia, stated the following:
It is in the informal economy and among the poor that needs are the greatest. If we claim universality (that) "all those who work have rights at work" then we are obliged to tackle these issues.157
It is important to link decent work initiatives to other social protection initiatives. The ILO is committed to make decent work a reality for all and this is clearly illustrated by the adoption of the ILO Domestic Workers Convention 189 (2011) and the supporting Recommendation 201.
The ILO has developed an integrated framework to facilitate a transition to formality and decent work. The decent work strategies for the informal economy are as follows:
The International Labour Conference prefers a progressive approach which, according to them, implies starting with the informal economy (as this is where most new job creation has recently taken place, and as the decent work deficits are most pronounced in this sphere).162 The adoption of the ILO Recommendation Concerning the Transition from the Informal to the
157 ILO 2002 http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/--reloff/documents/meetingdocument/wcms_080105.pdf 10.
158 An integrated approach is of the utmost importance to achieve this strategy and should include skills training, access to financial markets and market information (ILO Resolution Concerning Decent Work and the Informal Economy (2002) 11). According to the ILO, economic growth is a key factor in reducing informality; but in some instances informality can persist despite economic growth (ILO Informal Economy and Decent Work 64).
159 This includes the enforcement of international labour standards and core rights. 160 This includes equality based on gender, ethnicity, race, caste, disability and age. 161 ILO Growth, Employment and Decent Work. 162 See para 1.4 above.
Formal Economy163 reflects this progressive approach of the ILO. Through the concept of decent work an integrated framework is provided to analyse the challenges facing the informal economy and decent work.164 The strategy adopted is to achieve the goal of decent work first and in the immediate term through giving priority to reducing decent work deficits in the informal economy by ensuring that those who are currently working in that sphere are recognised in the law and have legal and social protection, representation and voice; second, and in the short and medium term, to encourage and enable a movement upwards from the informal economy to the more formal, protected and decent parts of the economy; and third, and in the longer term, to create adequate employment opportunities that are formal, protected and decent for all workers and employers.165
This third long-term strategy may be viewed as controversial. The premise of this strategy is that new jobs should not ideally be created in the informal economy. In other words, decent work entails more than a job at any price or under any circumstances, the focus being rather on better-quality employment in the upper end of the continuum. This requires that the "root causes" of informality, informalisation and externalisation are to be tackled. It focusses less on extending protection to those in the informal economy and concentrates more on a process of legalisation to bring informal workers and undertakings into the legal framework to be registered, recognised and protected. The adoption of the Recommendation Concerning the Transition from the Informal to the Formal Economy
formalises this third long-term strategy, and although this transition may be possible in certain instances, the recommendation does not consider the fact that there are workers who are in the informal economy by choice and through preference. When considering the precarious position of workers in the informal economy, an integrated approach is of paramount importance. This approach must consider measures to extend social protection through innovative measures. The legal and economic empowerment166 of these workers is essential when considering sustainable solutions and the strengthening of support services that are important to workers. It is submitted that this third pillar of a decent work strategy could be realised, and then only in the long term, if the root causes were accurately identified and analysed. The root causes include national policies that constrain employment creation in the formal economy, legal and institutional
163 ILO Recommendation Concerning the Transition from the Informal to the Formal
Economy 204 (2015). 164 ILO Resolution Concerning Decent Work and the Informal Economy (2002) 12. 165 ILO Resolution Concerning Decent Work and the Informal Economy (2002) 2. 166 This includes investment in the knowledge and skills of these workers.
obstacles that prevent this transition to the formal economy or continuous employment in the formal economy, the absence or lack of access to effective market and non-market institutions, demographic trends, the HIV pandemic, gender inequality and discrimination against women, and the lack of voice and representation of workers in the informal economy.167 This would require far more statistical and empirical research and reporting than what is currently available, and the lack of reliable data is hindering the effort to extend both labour and social protection to workers in the informal economy.
The world of work has changed and in some instances a realisation now exists that certain forms of work are a reality and not a passing occurrence. It is important that international regulation provides for this, including work in the informal economy. Specific vulnerable groups and challenges have been identified by international regulators and must now be addressed to extend protection to these workers.168 International regulation must promote freedom through the enhancement of the capabilities of these workers.169 International instruments can function as a key strategic tool to address inequalities in the workplace by increasing the capabilities of vulnerable groups, such as women, through empowerment initiatives.170
The ILO should prioritise a campaign focussed on ratification related to the protection of non-standard workers. The international standards set by the ILO could serve as a roadmap to direct policy and legislative responses. The ILO Employment Relations Recommendation highlights important principles in terms of international standard setting, but if it is to be effective, member states must include relevant principles in their national legislation, policies and codes. Such implementation must always occur in consultation with representative organisations. The effectiveness of the ILO depends on the inclusion of standards in domestic legislation.171 This would enable the progressive move from soft law and merely prescriptive regulations to binding provisions. The translation of international standards into binding provisions would promote and strengthen the enforcement of these
167 ILO Resolution Concerning Decent Work and the Informal Economy (2002) 5. 168 ILO Resolution Concerning Decent Work and the Informal Economy (2002) 5. 169 Kolben "Labour Regulation, Capabilities and Democracy" 60. 170 Kolben "Labour Regulation, Capabilities and Democracy" 70. 171 The 1969 Nobel prize citation lauded the ILO for its impact on legislation in countries
(Davies and Woodward International Organizations 206).
standards. Without this legislative base, the ILO relies solely on soft law, prescriptive regulations and codes.172
The ILO's 2010 Report provides a number of important principles to be considered when extending the scope of protection to workers in the informal economy.173 These principles recognise that tailor-made approaches and innovative designs must be initiated on national level but also on local levels such as municipalities, and must include dialogue with social partners, and that the focus of these approaches must include vulnerable groups in the informal economy, such as women.174 The report indicates that international standards for the informal economy should function as a road map for countries to guide their policies.
International standards must not become mere symbolic statements with no reflection of or enforcement in national legislation, policies and programmes.175 If this is allowed to continue, these standards will remain ineffective and a mere showcase for international organisations and member states. The purpose of regulation must be to improve the lives of workers with reference to the concept of work and, specifically, decent work.176 The implementation of ILO standards for workers may be more problematic in developing countries as they may be unable to fulfil the obligations placed on them. However, governments can start by removing all obstacles to the free organisation of such workers. Their participation in the planning and implementation of programmes to extend protection is vital for the success of such programmes. Certain ILO conventions allow ratifying countries to enact standards in a manner applicable to national conditions.
It is important that international labour standards should not be unrealistic but should be connected to the new world of work.177 Although there are those who call for a "radical change" in the activities of the ILO, there have been a number of reform strategies to align the organisation with the new world of work and to extend protection to those who are particularly vulnerable, such as women workers in the informal economy.178 The ILO is
172 Davies and Woodward International Organizations 206. 173 ILO Extending the Scope of Application of Labour Laws 6. 174 ILO Extending the Scope of Application of Labour Laws 6. 175 For example, Mexico has ratified 70 conventions, but none of these have been
implemented (Moreno "Informal Sector in Mexico" 301). 176 See Langille 2010 CLLPJ 525. 177 See Langille 2010 CLLPJ 535. 178 Weiss "International Labour Standards" 7.
also playing an increasingly important role in providing technical assistance to developing countries supported by country offices.
The specific focus of UN Women on gender equality and the empowerment of women, combined with efforts to reach the Sustainable Developmental Goals, has improved the lives of various groups of women globally. A part of this success may be ascribed to the fact that in their quest for equality, they have formed links with various role players at different levels, such as governments, international and national organisations, trade unions and other workers' organisations and civil societies. When considering the global imperative of the empowerment of women, partnerships on regional, national and international levels are of paramount importance to ensure sustainability. UN Women strengthens these linkages on various levels through advocacy campaigns that highlight the challenges women face across the world and create an awareness of the plight of women. Important features of these campaigns are the recognition that structural inequalities must be addressed as well as inherent gender norms and campaigns that highlight challenges such as violence against women, child marriages and female genital mutilation.179 The overarching theme is gender equality, and this is a pre-condition for the attainment of all other goals.
The success of international institutions and instruments depends on the cooperation and support of all role players to end poverty and to ensure prosperity for all.
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List of Abbreviations
| AU | African Union |
| BCEA | Basic Conditions of Employment Act 75 of |
| 1997 | |
| CEDAW | Convention on the Elimination of All Forms of |
| Discrimination Against Women | |
| CERD | Convention on the Elimination of All Forms of |
| Racial Discrimination | |
| CLLPJ | Comparative Labour Law and Policy Journal |
| CRC | Convention on the Rights of the Child |
| CRPD | Convention on the Rights of Persons with |
| Disabilities | |
| DSA | Development Southern Africa |
| EEA | Employment Equity Act 55 of 1998 |
| ICCPR | International Covenant on Civil and Political |
| Rights | |
| ICESCR | International Covenant on Economic, Social |
| and Cultural Rights | |
| ILJ | Industrial Law Journal |
| ILO | International Labour Organisation |
| LRA | Labour Relations Act 66 of 1995 |
| MDGs | Millennium Development Goals |
| SADC | Southern African Development Community |
| SDGs | Sustainable Development Goals |
| UDHR | Universal Declaration of Human Rights |
| UN | United Nations |
WIEGO Women in Informal Employment Globalising and Organising