Constructing a legal framework for securing economic, social and cultural rights for women workers, with particular reference to structural adjustment and the Caribbean

• Author: R-M. B. Antoine
• Position: Lecturer in Law, University of the West Indies, Faculty of Law, Cave Hill Campus, Barbados
• Pages: 534-587

CONSTRUCTING A LEGAL FRAMEWORK FOR

SECURING ECONOMIC, SOCIAL AND CULTURAL RIGHTS

FOR WOMEN WORKERS, WITH PARTICULAR REFERENCE

TO STRUCTURAL ADJUSTMENT AND THE CARIBBEAN.

R-M. B. ANTOINE*

Introduction

The paper attempts to outline the current status of women's economic,

cultural and social

rights

in

the

work-place,

with a view to identifying ways

in which such rights may be enhanced and made justiciable, consequently

rendering them enforceable. Specific reference is made to women workers

in the Commonwealth

Caribbean.

However, the generality of the topic and

the shared experiences and problems of

all

women workers ensure that the

topic is of international relevance. Further, an attempt is made to analyse

the subject within a broad comparative framework and to draw on

examples from several countries.

The preliminary task of attempting to construct a theoretical and

conceptual framework for the enforceability of economic, cultural and

social rights (hereinafter called ECONSOC rights) for women in the work-

place is first briefly addressed, with the difficulty of assuring justiciability

of ECONSOC rights in general noted. Given this difficulty, the paper

attempts to outline innovative methods for the securing of these somewhat

elusive rights.

The paper then proceeds to outline the existing legal framework in

relation to such rights, outlining first the international legal rules and

norms, as evident in Conventions, Recommendations and Agreements,

then the rather meagre existing national legislation and constitutional

provisions particularly in the Commonwealth Caribbean.

An examination of specific gender issues pertinent to the work-

environment

is

then separately discussed in a comparative light, examining

legal precedents, legislation and current trends elsewhere and in the region.

Finally, the impact which structural adjustment has had on women!s

rights in employment

is

discussed It

is

the view of the writer that structural

Lecturer in Law, University of the West Indies, Faculty of Law, Cave Hill

Campus, Barbados.

adjustment policies should not be allowed, on the basis of cost, to

undermine women's rights in this sphere, nor abort future attempts to

develop such rights expansively

As a general rule, the legal infrastructure has not yet fully

acknowledged, nor embarked upon the task of securing ECONSOC rights

for women in employment. This is largely as a result of a failure of legal

regimes to address women's concerns generally. As is demonstrated in

the following discussion, it is also due to the failure of such regimes to

treat ECONSOC needs as fundamental human rights. Legislation,

constitutional norms, legal practices and precedents conducive to

developing such rights are often scant. Where legislation does exist, it has

not kept pace with progressive feminist jurisprudence. The problem is a

pervasive one which applies internationally. It is also the rule for the

Caribbean, where even further problems are to be identified; problems

typical of developing countries. For example, in addition to being obtuse,

legislation is often

fragmented,

isolationist and lacking a coherent, cohesive

and holistic gender policy. In addition, the promulgation of adequate

legislation is often obstructed by conflicting ideological orientations which

resist the language of female empowerment and liberation inherent in

feminist jurisprudence.

What are these ECONSOC rights which women might expect? They

include:

(1) The right to work - which encompasses such subsidiary

rights as equal access to employment without

discrimination on the basis of gender, the right not to be

prevented from full-time employment, and the right not

to be discriminated against in relation to job

opportunities.

(2) The right to just remuneration for such work - which

includes the right to equal remuneration for work of

equal value and provision of job-related benefits.

(3) The

right

to health

-

which encompasses the right to safe

and healthy working conditions including holidays, rest-

periods, maternity leave and protection against disease

and hazards which are detrimental to women.

The failure of legal regimes to grant such rights to women is the

inadequacy which must be addressed.

It can be seen, then, that at a superficial level, within the context of

broad ECONSOC rights, the desires of women at the work-place are no

different to male workers, even in times of structural adjustment. One

presumes that all workers want, for

example,

the opportunity to work, just

remuneration, and fair working conditions. This presumption assumes,

however, that women enter the equation on a footing of equality, from

which they can then bargain for

these

common

wants.

The reality, however,

is quite different. Studies show that women are typically placed at the

lower end of the scale, whether it be in relation to wages, working

conditions, employment opportunity, or in almost every aspect of

endeavour in the work-environment.1 Further, women are particularly

vulnerable to negative economic trends such as retrenchment or

casualisation of work, which in turn are exacerbated under structural

adjustment programs.

In a kind of "chicken and egg argument", it is submitted that women

must first win the battle of equality before they can embark on the task of

securing commonly sought ECONSOC rights in the work-place. Equally,

however, initiating measures to secure ECONSOC rights to women

generally, and specifically, in

the

work-environment, places them along the

route to equality. One small example is the granting of free access to

education to all, including women. In the Caribbean, as elsewhere, this

move has allowed women to take giant strides in their battle for equal

access to employment because of their great increase in skill and training.

There needs, therefore, to be a more rights centred approach to these

ECONSOC desirables and

needs

in order for

them

to be secured to women.

This approach will not only actively promote ECONSOC concerns of

women, but cushion them against the undermining of such rights in times

of vulnerability, as, for example, where structural adjustment is in effect.

This approach is not limited to the enshrinement of ECONSOC rights in

a written constitution, itself a largely ineffectual option, as will be

demonstrated. Rather, legal regimes must find other means to

accommodate what are essentially basic human rights in employment

legislation, judicial precedent, purposive construction of civil and political

rights, codes of

legal

conduct and international norms.

1 Some of these studies and relevant statistics will be discussed further in the

paper.