|
Law & the Informal Economy
|
|
|
A newsletter about WIEGO’s Programme on Law and the Informal Economy
|
|
|
Jonathan Torgovnik/Getty Images Reportage
|
|
|
Law is essential to improving livelihoods and lives. Legal frameworks, however, are designed for the formal economy. Too often, laws fail to protect and support informal workers. Instead, legislation—and the way it is enforced—criminalizes informal workers’ livelihood activities.
Like all workers, informal workers need a regulatory framework that protects their rights and promotes a climate of stability and security.
In 2016, WIEGO launched its Programme on Law and the Informal Economy to address these challenges. As with all of WIEGO’s work, the Programme focuses on four occupational groups:
|
|
|
The Law Programme builds on the Law Project that WIEGO undertook between 2006 and 2014. After pilots in India and Colombia, WIEGO engaged in bottom-up participatory legal reform in Ghana, Peru, and Thailand between 2010 and 2013, followed by India and South Africa in 2014. Key to all WIEGO work is its pro-poor, pro-women lens.
|
|
|
|
Our Perspective on Law and the Informal Economy
|
|
|
It is widely assumed that informal workers, businesses and activities operate outside the reach of the law. However, in many countries, they are regulated in ways that are punitive. Most often, informal workers and businesses are excluded from labour, employment and business legislation, and are therefore denied the rights and entitlements afforded to formal employees and businesses. At the same time, informal workers, businesses and activities are regulated by a complex range of national, sector-specific and city-level legislation that are punitive in their effect, compromising their livelihoods and often violating their human rights. Police harassment of informal traders is ubiquitous, contravention of legislation is most often treated as a criminal offence, and informal workers are denied basic due process protections under rule of law.
In most countries, the legal framework focuses only on formal relationships, which for workers means labour and employment legislation based on an employer-employee relationship. Policy for informal workers is either in the form of small business support (with an emphasis on supply-side interventions such as micro-finance and business training), or poverty-alleviation projects (particularly for women, who are over-represented in the most low-income sectors). Informal workers—whether own-account workers, homeworkers or outworkers who participate in global value chains, or atypical wage workers whose rights have been eroded through corporate outsourcing and subcontracting—want to be recognized as workers who make a substantial contribution to the economy.
WIEGO’s Law Programme seeks to interrogate the ways in which laws impact the informal workforce and their livelihoods, and to empower informal workers and their organizations to challenge these negative impacts of law. The programme furthermore seeks to support WIEGO’s Organization and Representation Programme to build the capacity of these organizations to struggle for recognition and rights, including the implementation of International Labour Organization (ILO) Recommendations, Conventions and Standards in their respective countries.
Formalizing the informal economy means extending recognition, voice, economic opportunity, social protection and due process to informal workers—in short, realizing “decent work” for the informal economy. It means building the organizational strength and capacity of informal workers to claim rights as workers and citizens, and crafting new conceptual frameworks that enable the legal recognition of informal workers. And it means shifting the mindset of legal scholars and practitioners, national and global policy makers, trade unions and other civil society organizations to recognize informal workers as workers or economic agents.
|
|
|
International Labour Conference on Supply Chains
|
|
|
Zehra Khan from Pakistan spoke on behalf of HomeNet at the ILC in Geneva.WIEGO helped Zehra prepare her speech, as well as her submission to the workers’ meeting on the inclusion of homeworkers.
In June 2016, members of WIEGO’s Organization and Representation Programme and its Law Programme, along with members of the WIEGO Network, participated in discussions on decent work in global supply chains at the International Labour Conference (ILC) in Geneva. Prior to the ILC, WIEGO convened a meeting in Ahmedabad, together with HomeNet South Asia, for its affiliates from 11 countries to establish a “
platform of demands” in preparation for the tripartite discussions (between governments, businesses, and workers) at the ILC. WIEGO accompanied 10 representatives from homeworkers’ membership-based organizations (the “worker group”) from around the world to Geneva. However, only the Self-Employed Women’s Association (SEWA) participated in the discussions as a recognized trade union.
|
|
|
Paula Bronstein/Getty Images Reportage
|
|
|
Global Labour University Workshop in Nepal
|
|
|
The Global Labour University, a network of trade unions, universities and the International Labour Organization (ILO), commissioned WIEGO’s Law Programme to evaluate existing supply chain governance mechanisms to determine whether, and how well, they might protect homeworkers (women who produce goods for global markets from their homes). At an October workshop in Kathmandu, sponsored by Friedrich Ebert Stiftung, a paper by Law Programme Director Marlese von Broembsen and WIEGO researcher Jenna Harvey was workshopped with trade unions, the Trade Union Advisor to the OECD, and homeworker organizations from Cambodia, India, Nepal and Bangladesh.
The International Trade Union Confederation (ITUC), which represents 168 million workers, argued for an update to the ILO’s MNE Declaration (concerning multinational enterprises and social policy) to incorporate the UN Guiding Principles on Business and Human Rights. The MNE and OECD processes are defining, in very concrete terms, what brands must do to (a) identify human rights abuses; (b) protect vulnerable workers in their supply chains from abuses; (c) prevent abuses and if they do happen, mitigate their effect; and (d) report how abuses in supply chains are being addressed. It is crucial for organizations that represent homeworkers to be involved in establishing these responsibilities. The Nepal workshop was the first step in this process.
|
|
|
United Nations High Level Panel on
Women’s Economic Empowerment
|
|
|
In 2016, the Secretary General of the UN appointed a High Level Panel (UNHLP) to look at the issue of Women’s Economic Empowerment. WIEGO and Oxfam were two civil society organizations invited to serve on the panel.
Several WIEGO team members were present when Director of UN Women, Phumzile Mlambo Ncguka, presented the UN High Level Panel’s first report to the Secretary General of the UN in March at the UN General Assembly. Read the full report,
Leave No One Behind.
In May, in preparation for the UNHLP process, Marlese von Broembsen, Sally Roever, WIEGO’s Urban Policies Director, and Marty Chen, WIEGO’s International Coordinator, participated in a roundtable discussion on women-owned businesses. The event was hosted by IDRC, WeConnect International and the Urban Institute. The World Bank’s Women, Business and the Law team presented on the findings of their annual survey. Marlese presented on the unique legal barriers that women informal workers face—both as workers and as women.
|
|
|
|
Members of the Law Programme team participated in the Regional UNHLP consultations in Costa Rica and in South Africa.
The UNHLP has appointed working groups for seven themes, which are charged with translating the high-level report into a practical implementation agenda. Marlese serves on the Working Group on Ensuring Legal Protection and Reforming Discriminatory Laws and Regulations, which is tasked with identifying gaps in the first report and identifying implementation priorities for different stakeholders, including governments and business.
|
|
|
Mexico City’s Recommendation 07/2016 on Waste Pickers' Rights
|
|
|
The Human Rights Commission in Mexico City passed Recommendation 07/2016 on the inclusion of waste pickers in the city’s waste management system. WIEGO’s Latin American Law Programme Director, Tania Espinosa Sánchez has been involved in advocacy work on the omission of informal workers (waste pickers) in the city’s waste management service, and on the working conditions of formal and informal workers (waste pickers). Her advocacy has included appearing on television news reports to publicize the recommendation and the situation of waste pickers, drafting a letter to Mexico City’s government on behalf of WIEGO, and meeting with waste management workers to organize a protest to request the city government accept the recommendation. She also wrote the following:
|
|
|
FES Workshop on Social Protection
|
|
|
In September 2016, Friedrich-Ebert-Stiftung (FES) Zambia brought together key stakeholders in Africa with the aim of establishing a social protection floor for Africa. WIEGO Law Programme Coordinator for Africa, Pamhidzai (Pamhi) Bamu-Chipunza represented WIEGO’s Law Programme. Held in Entebbe, Uganda, the meeting brought together civil society (represented by the African Platform for Social Protection), labour (formal employees represented by the ITUC-Africa) and informal workers (represented by the WIEGO Network). The meeting’s aim was to begin the process of establishing a continental platform to advocate for social protection.
The overwhelming majority of informal workers are unable to access formal social protection mechanisms (social insurance, social assistance and social services), since the gateway for most mechanisms is formal employment, which covers a privileged minority in most African countries. WIEGO participated to ensure that stakeholders seriously consider the situation and needs of informal workers in discussions on how to reshape the continent’s social protection landscape.
WIEGO believes that informal workers must have voice—they must represent their concerns and demands themselves; WIEGO provides the support for them to do so. Together with WIEGO colleagues from the Social Protection Programme and Organizing and Representation Programme, Pamhi provided such support to workers from the WIEGO Network. For example, she interpreted for Nonhlanlha Mhlophe, a Zulu-speaking waste picker who represented the South African Waste Pickers’ Association. Nonhlanlha spoke about the many challenges that waste pickers face. She shared their frustrations with unsafe and unhygienic conditions on landfill sites, and lack of insurance and other protections for sickness or death of waste pickers and their family members. Waste pickers are also frustrated with government delays in allocating space for a waste recovery site. Nonhlanlha spoke movingly about the role and importance of organizing waste pickers to address their concerns collectively.
The meeting was a first step towards establishing a continental platform on social protection. Going forward, a steering committee will represent civil society, informal workers and formal workers and will develop strategies and identify targets for continental advocacy efforts. As a member of the steering committee, WIEGO will engage MBOs and other stakeholders to ensure that informal workers’ positions and demands are part of the advocacy efforts.
|
|
|
Habitat III and the New Urban Agenda
|
|
|
Tania Espinosa Sánchez talked about the right to work as a human right that international treaties also extend to informal workers.
From October 17-20, a WIEGO Network delegation made up of informal worker representatives, researchers, and technical support individuals participated in the Habitat III Conference in Quito, Ecuador, which culminated in the adoption of the New Urban Agenda. During the conference, WIEGO aimed to create spaces for informal workers and their representative organizations to have their voices heard, to make visible the positive contributions of informal livelihoods to cities, and to advocate for urban policy approaches that result in greater livelihood security for urban informal workers.
The Law Programme participated as part of WIEGO’s delegation. Tania Espinosa Sánchez facilitated a panel with Sonia Dias, WIEGO’s Waste Picker Specialist, and talked about the right to work as a human right that international treaties also extend to informal workers.
In the meeting with the UN’s Deputy High Commissioner of Human Rights, Tania and a Latin American delegation of informal workers talked about connecting informality, human rights issues and the New Urban Agenda.
Learn more.
|
|
|
Involvement with R204 in South Africa
|
|
|
Recommendation No. 204 (R204) concerning the Transition from the Informal to the Formal Economy, adopted at the 2015 ILC, includes key provisions for those informally employed, both self-employed and wage employed. R204 notably includes recognition that:
- most informal workers are from poor households trying to earn a living against great odds and, therefore, need protection and promotion in return for regulation and taxation
- most informal economic units/enterprises are single person or family operations run by operators (“own account workers”) who do not hire others as employees
- informal livelihoods should not be destroyed in the process of formalization
- the principle of freedom of association and the right to collective bargaining applies to all workers in the informal economy, self-employed and wage employed
- regulated use of public space is essential to the livelihoods of informal self-employed in the informal sector, especially in cities
- regulated access to natural resources is essential to the livelihoods of informal self- employed in rural areas
To this end, R204 calls for governments to create an enabling environment for informal employees and enterprise operators to exercise their right to organize and to bargain collectively (with employer organizations or government respectively) and to participate in social dialogue in the transition to the formal economy. Governments are also encouraged to consult representative organizations of informal workers and employers concerning the design, implementation and monitoring of policies and programmes of relevance to the informal economy, including its formalization.
In April 2016, WIEGO, including the Law Programme, participated in a workshop on R204 held in Johannesburg. The workshop was spearheaded by the Congress of South African Trade Unions (COSATU) together with WIEGO’s Organizing and Representation Programme, with support from the ILO’s Pretoria office.
The aim of the workshop was to build the capacity of South African constituencies and to provide participants with an opportunity to make concrete proposals for government action and implementing R204. Informal workers were represented in each of three clusters: workers operating in private homes; workers in public spaces and in industries; and, participants involved in research and policymaking.
Key outcomes included the establishment of a working group of all stakeholders and an agreement to commission a research study analyzing the gaps between South African law and the principles of R204. Developments will be shared in future issues of this newsletter.
|
|
|
Mexico City’s Constitution and the Right to the City
|
|
|
On February 5, 2017, Mexico City published its first Constitution. Leading up to this historic event, Tania Espinosa Sánchez was involved in advocacy to ensure informal workers’ were recognized. The following provisions that protect informal workers were included in the Constitution: Article 10 confers protection for domestic and care workers; article 10 also states that self-employed workers who produce or sell goods and crafts have the right to decent work and formal recognition to associate, to defend their interests, and to receive training. In addition, city authorities guarantee tenants of public markets adequate sanitary conditions, safety and security. And market vendors will enjoy the same rights as self employed workers.
The Right to the City was incorporated under article 12 and the Right to Public Space with a social function under article 13. Furthermore, article 16 prohibits the privatization and concession of public services for the collection and treatment of solid waste.
|
|
|
Domestic Workers Fight for Equality in Mexico
|
|
|
Currently, Mexico’s Federal Labour Law establishes rights for domestic workers, but they are not the same rights as enjoyed by formal workers. To gain equality, domestic workers have been requesting different government officials ratify C189 and provide social protection rights for the sector. This could lead to new legislation and/or social protection schemes.
In this Regional Exchange, domestic workers from Argentina, Chile, Costa Rica, Jamaica and Uruguay, many of them IDWF affiliates, shared how they achieved social protection schemes in their countries with a group of Mexican workers. The participants developed a political platform on social protection for SINACTRAHO to use in Mexico. ILO representatives attended this exchange to provide the results of their research on social protection in Latin America.
Learn more.
|
|
|
Publications and Resources
|
|
|
- Protecting Homeworkers In Global Supply Chains - Don’t miss this post by Marlese von Broembsen on the UN Guiding Principles as a rights-based approach to regulating global value chains on WIEGO’s blog.
- Read our Legal Briefs (and watch for new publications coming soon!)
- Visit the website at wiego.org/law
|
|
|
|
|
|
|
