Dewhurst on Budget 2010: The Right to Work in Ireland
This is our second guest post from Dr. Elaine Dewhurst. You can read about Elaine on our Guest Contributors page.
In 2009, the International Labour Organisation reported (World of Work Report 2009) that over 6.1 million jobs had been lost in the EU with an increased unemployment rate across the EU of 9.3% and the average number of working hours per person decreasing to 40.3 hours. The ILO warned that these statistics revealed that the labour market in the European Union was making a “sluggish” recovery and that the European Union faced the risk of increased long-term unemployment resulting in skills deterioration and labour market detachment, particularly in groups such as older workers and young people. So how could states ensure a broader global recovery?
The Budget 2010 sought to take “bold, decisive and innovative steps to manage [their] way through this crisis”. This amounted, in reality, to a cut of €4 billion euro to Government spending. This contrasts starkly with the advice of many international bodies, including the International Labour Organisation who argued that the only sustainable way out of the present crisis in the European Union in general was through “Employment-Oriented Measures” including the development of public infrastructure, social protection, support for vulnerable groups, labour market skills and training programmes and initiatives for “greening” the economy.
So what effect will the cuts outlined in Budget 2010 have on the personal rights of the people of Ireland? Take for example, the right to earn a livelihood. How is it affected by the action of the State? The right to earn a livelihood is an unenumerated personal right of every person and the State has a duty to protect, as best it may, from unjust attack this right. The right in Ireland has only been considered in very limited cases for example, to challenge discrimination in employment or the operation State monopolies or to challenge legislation affecting the profitability of business. It also has been found to be a qualified right i.e. its operation must be balanced against the exigencies of the common good.
However, the right to earn a livelihood has been interpreted at an international level to be more than just a negative right i.e. prohibiting the State from destroying it. The Irish courts have never had an opportunity to consider the potential positive obligations imposed by the right. Potential obligations that might be contained within the right to earn a livelihood may be gleaned from international guarantees to which Ireland is a signatory and the interpretation of this right at an international level. The right to earn a livelihood is protected by Article 15 of the EU Charter of Fundamental Rights which is now fully binding in Ireland and this Article protects a persons right to engage in work and to pursue a freely chosen or accepted occupation, Article 23 of the Universal Declaration on Human Rights 1948 (which guarantees everyone “the right to work, to free employment, to just and favourable conditions of work and to protection against unemployment”), Article 6 of the International Covenant on Economic, Social and Cultural Rights (which protects the right of everyone to the opportunity to gain his living by work”) and Article 11 of the same Convention (which protects the “right to earn an adequate standard of living”).
So what does the right to work actually oblige the State to do? The guarantee of a right to earn a livelihood at an international level has been interpreted to imply three specific obligations on the State. The obligation to respect the right (that states must not destroy a person’s opportunity to earn his or her living), the obligation to protect the right (States must prevent this opportunity from being destroyed by third parties) and the obligation to fulfil the right (States must provide the opportunity to earn one’s living to each person who currently does not have this opportunity).
In international law, it has been accepted (See “The Right to Work”) that the following policies are appropriate for the protection of this right:
• The allocation of expenditure for vocational guidance, training, employment services
The Budget 2010 plans to reduce spending in these areas by reducing funding to FÁS and Skillnets for training those in employment; reducing grant for Community Employment (CE) training and materials overhead; reducing part-time Third level places for FAS and ending of Science Challenge (closing in 2009); stopping FÁS Training Allowance of €204.30 per week to new entrants not entitled to Jobseeker’s Benefit/Allowance; reducing Current Non-Pay funding for Agencies and Offices under the aegis of the Department of Enterprise, Trade & Employment; reducing Current Non-Pay funding for Science and Technology programmes; Reducing CE/Jobs Initiative allowances; and implementing a range of smaller reductions in other programmes and services.
• Full employment
Article 1 of the European Social Charter provides that States should accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment. Unfortunately, once again Budget 2010 there is no clearly structured plan in place to ensure job creation other than a promise to put capital expenditure into “sustainable job creation and economic recovery”. The jobs stimulus package, many hoped for, has not materialised.
• Employment guarantee in the “common sector”
The “common sector” refers to those persons who are carrying out absolutely necessary work which normally goes unpaid such as child rearing, caring for the elderly, and improving the quality of community. It has been recognised internationally that marginalising this section of the community through cuts in social welfare has severe consequences for social well-being. The Budget 2010 has made significant inroads into social welfare payments which could lead to severe social consequences for those working in this “common sector”.
Perhaps if these factors had been considered in Budget 2010, a fairer solution for all persons living in Ireland may have been achieved.