Work, Automation and Livelihood

Article 7 recognises the right of everyone to the enjoyment of just and favourable conditions of work, which ensure in particular fair wages and equal remuneration for work of equal value without distinction of any kind, women being guaranteed conditions not inferior to those of men with equal pay for equal work; a decent living for the worker and their family; safe and healthy working conditions; equal opportunity for promotion subject to no considerations other than seniority and competence; and rest, leisure, reasonable limitation of working hours and periodic holidays with pay.

Two limbs of article 7 do work in this chapter that is easy to miss. Safe and healthy working conditions is the provision under which the introduction of a hazardous process is challenged, which links this chapter to [Environment and Technological Harm]. And equal opportunity for promotion subject to no considerations other than seniority and competence is engaged where the assessment is made by an automated system, which links it to [Artificial Intelligence and Decisions by Machines].

UDHR article 23 states the right to work, to free choice of employment, to just and favourable conditions and to protection against unemployment.

CEDAW article 11(3) requires that protective legislation relating to the matters covered by the employment article be reviewed periodically in the light of scientific and technological knowledge and revised, repealed or extended as necessary. It is the only provision in the base that expressly requires labour law to be kept in step with technological change, and it should be cited whenever the question is what the State ought to have done.

The Indian position

Article 21 has been construed to include the right to livelihood, on the reasoning that the right to life would be reduced to animal existence if it did not include the means by which a person lives. The doctrine matters here because it converts the loss of a means of living into a question about a fundamental right, though it does not follow that any particular job is protected.

Article 39(a), a directive principle, requires the State to direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood.

Article 41 requires the State, within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Article 43 requires the State to endeavour to secure to all workers a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.

Taken together the Indian frame is: a fundamental right to livelihood, with the machinery of protection sitting in Part IV. That asymmetry is the source of most of the difficulty, because the enforceable right is stated at a high level of generality and the specific obligations are in the unenforceable part.

What the right does and does not require

This is the heart of the chapter and the place to be precise.

It does not require that a technology be kept out. No provision in the base gives a worker a right that their employer continue using an obsolete process, and a right of that kind would defeat article 15(1)(b) and article 15(2), which require the development and diffusion of science. An answer that concludes that automation violates the right to work has reasoned from the wrong premise.

It does not guarantee any particular job. The right in article 6 is to the opportunity to gain a living by work freely chosen or accepted, which is a right to a functioning labour market and to the State's steps towards full and productive employment, not a right to remain in one post.

It does require the State to act on the transition. Article 6(2) puts technical and vocational guidance and training in the mandatory content. Article 41 requires provision for public assistance in unemployment. CEDAW article 11(3) requires the law itself to be reviewed as technology changes. The obligation is therefore concrete: retraining, income support during transition, and legislative review.

It does require attention to who bears the loss. Article 2(2) attaches non-discrimination to the exercise of Covenant rights. Where displacement falls disproportionately on women, on a caste or on a region, the equality analysis in [Equality and the Digital Divide] applies to the displacement itself and not only to access.

And it does require that the new work be work. Article 7's standards do not lapse because the work is mediated by a platform. Fair wages, safe conditions, rest and reasonable limitation of hours are stated as attributes of work, not of a contractual form, so an arrangement that reclassifies a worker without changing what they do engages article 7 directly.

Worked example

A State transport undertaking introduces automated fare collection and closes the conductor grade, which employs about four thousand people, most of whom joined between fifteen and twenty-five years ago and have no other qualification. It offers a redundancy payment calculated on years of service.

Is the introduction of the technology unlawful? No, and an answer should say so at once. Nothing in article 6, article 21 or the directive principles gives a worker the right to the continuation of a superseded process.

What obligations are engaged? Article 6(2) directly: technical and vocational guidance and training programmes are part of the mandatory content of the right to work, so the question is whether retraining was offered, whether it was real, and whether it led anywhere. Article 41: public assistance in cases of unemployment is what the transition period requires. Article 39(a): adequate means of livelihood, which is the standard against which the redundancy payment is measured, since a payment that does not bridge the period to new employment has not secured a means of livelihood, only softened its loss.

Is there an equality question? Test it rather than assume it. If the conductor grade was one of the few open to a particular group, its closure removes that group's route into the undertaking, and a facially neutral decision has an unequal effect.

What about those redeployed? Article 7 applies to the new posts: equal opportunity for promotion on seniority and competence, and conditions not inferior. A redeployment to a grade with no progression satisfies the form of continued employment and not the substance of article 7.

The realistic conclusion. The undertaking may automate. It must retrain, support the transition, examine the distribution of the loss, and preserve conditions for those who remain. That is a lawyer's answer, and it is more useful to the four thousand than an argument that the machines should be banned.

What it does NOT mean

Technology does not simply destroy work. It changes its composition, and the historical record is that total employment has not fallen. That is not a reason for complacency, because the framework's concern is the distribution and the transition, and both can be severe while the aggregate is unchanged.

"New jobs will appear" is not an answer to a rights claim. It may be true and still irrelevant, because the person displaced is not the person who takes the new job, and article 6(2) addresses precisely that gap.

The right to work is not a right to be employed by anybody in particular. The duty bearer is the State, and its duty is to take steps towards full and productive employment, not to direct a private employer to retain a post.

And a productivity gain is not automatically a public benefit. Whether it is depends on where it goes, which is a distributive question and therefore a question the equality provisions reach.

Quick revision

• ICESCR article 6(1): the right to work includes the opportunity to gain a living by work freely chosen or accepted. Article 6(2): steps shall include technical and vocational guidance and training programmes and policies for full and productive employment. Article 6(2) is the displaced worker's provision.
• Article 7: just and favourable conditions, including fair wages and equal pay for work of equal value, a decent living, safe and healthy working conditions, equal opportunity for promotion on seniority and competence only, and rest and reasonable limitation of hours.
• UDHR article 23; CEDAW article 11(3), labour law to be reviewed in the light of scientific and technological knowledge.
• India: article 21 includes the right to livelihood; article 39(a) adequate means of livelihood; article 41 public assistance in unemployment; article 43 living wage and decent conditions. The enforceable right is general, the specific duties sit in Part IV.
• The law does not forbid the technology and does not protect a particular job. It requires retraining, transitional support, legislative review, and attention to who bears the loss.
• The three constants of every wave: output rises; gains and losses fall on different people; the harm is in the transition.

Test yourself

1. Which provision of the Covenant is the displaced worker's provision, and why? Article 6(2), which provides that the steps to be taken to achieve the full realisation of the right to work shall include technical and vocational guidance and training programmes, and policies and techniques to achieve steady development and full and productive employment under conditions safeguarding fundamental political and economic freedoms. It is the displaced worker's provision because it places retraining inside the mandatory content of the right rather than leaving it to policy, so a State that permits a technological displacement without providing vocational guidance and training has failed a step the treaty says its steps shall include. It is also the provision that answers the objection that new work will appear, since it addresses the position of the person during the interval.

2. Does the right to work make the introduction of labour-replacing technology unlawful? Give reasons. No. Article 6(1) protects the opportunity to gain a living by work freely chosen or accepted, not the continuation of any particular post or process, and the duty bearer is the State rather than the individual employer. A right to the continuance of a superseded process would also conflict with article 15(1)(b) and article 15(2), which give everyone the right to enjoy the benefits of scientific progress and require States to take steps for the development and diffusion of science. What the framework requires is not prohibition but management of the transition: vocational training under article 6(2), public assistance in unemployment under article 41 in the Indian scheme, review of protective labour legislation in the light of technological knowledge under CEDAW article 11(3), and attention under article 2(2) to whether the loss falls disproportionately on a protected group.

3. Identify two limbs of article 7 that bear on technological change and explain how. Safe and healthy working conditions is engaged whenever a new process introduces a hazard, so it is the provision under which the introduction of a dangerous technology is challenged by those who must work with it, and it connects this topic to industrial disaster and environmental harm. Equal opportunity for everyone to be promoted to an appropriate higher level, subject to no considerations other than seniority and competence, is engaged where selection or assessment is performed by an automated system, because a system that scores on correlates of past outcomes introduces considerations other than seniority and competence, which is what the limb forbids.

4. Set out the Indian constitutional position and explain why its structure creates difficulty. Article 21 has been construed to include the right to livelihood, on the footing that the right to life would be reduced to mere animal existence if it excluded the means by which a person lives. Article 39(a) directs the State to secure to citizens, men and women equally, the right to an adequate means of livelihood; article 41 requires effective provision, within the State's economic capacity, for the right to work and for public assistance in unemployment; and article 43 requires endeavour towards a living wage and decent conditions. The difficulty is structural: the enforceable guarantee in Part III is stated at a high level of generality, while the specific obligations that would answer a displacement, retraining and unemployment assistance, sit in Part IV and are not enforceable by a court, so the right that can be asserted is vague and the duties that are precise cannot be compelled.

5. A platform reclassifies its delivery riders as independent contractors while their work is unchanged. Which provision is engaged and why does the contractual form not settle the question? Article 7 is engaged, which recognises the right of everyone to the enjoyment of just and favourable conditions of work, including fair wages and equal remuneration for work of equal value, a decent living, safe and healthy working conditions, and rest, leisure and reasonable limitation of working hours with periodic holidays with pay. The contractual form does not settle the question because article 7 states these as attributes of work and of the person who performs it, not as incidents of a particular legal relationship, and article 6(1) speaks of the opportunity to gain a living by work rather than of employment in a technical sense. A reclassification that changes the label while leaving the direction, the hours and the economic dependence intact therefore alters who bears the cost of the standards without altering the standards themselves, and CEDAW article 11(3) supplies the further point that protective legislation is to be reviewed and extended as technological knowledge changes, which is exactly what a new mode of engaging labour calls for.