The Need to Protect the Rights of Persons with Disabilities in Labor Law

It is important to recognize and take special measures to ensure the implementation of the specific rights of persons with disabilities in order to limit and eventually eliminate social barriers to persons with disabilities. In other words, if the opportunity to access and enjoy the rights of persons with disabilities is not guaranteed by a legal mechanism, it will lead to a situation of dependence on society's awareness of their status and basic human rights. In reality, due to limited social awareness, persons with disabilities still suffer from stigma and discrimination. They are ostracized and considered a burden on their families and society. These limitations have created barriers to the access and enjoyment of the rights of persons with disabilities.

1.2. The need to protect the rights of people with disabilities in labor law

1.2.1. Concept of protecting the rights of people with disabilities

Bao means to keep, ve means to resist. Bao ve means “to resist all infringements to keep things always intact” [101, p.34]. Accordingly, it can be understood that protecting the rights of people with disabilities means resisting acts that infringe on the rights of people with disabilities to keep them participating in social relations and enjoying legal rights.

The concept of protecting the rights of people with disabilities is not specifically defined in international legal documents as well as the laws of some countries such as the US, UK, China, Japan and Vietnam. However, international legal documents and countries mention the responsibility of countries to implement the most effective measures to protect the rights and legitimate interests of people with disabilities, helping them have the opportunity to access and enjoy equal rights like all other members of society. For example, the 2006 International Convention on the Rights of Persons with Disabilities stipulates: " States Parties undertake to ensure and promote the full recognition of all human rights and freedoms of all persons with disabilities without discrimination of any kind on the basis of disability " [38, Article 4, Clause 1]. In addition, the Convention also stipulates measures to protect the rights of people with disabilities that member countries must commit to implementing such as:

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Provide special health services to detect, prevent and reduce disabilities [38, Article 25-b]; Create conditions for people with disabilities to access assistive devices and equipment, use sign language and Braille; Call for and encourage facilities to provide communication services in forms that are accessible and easy to use for people with disabilities [38, Articles 20, 21]…

The Americans with Disabilities Act (ADA) amended in 1990 states that the purpose of the act is: “ To provide a clear and detailed national program to eliminate discrimination and to provide clear, consistent, and enforceable standards to address discrimination against individuals with disabilities by reestablishing the scope of protection available under this act” [74].

The preamble to the Disability Discrimination Act 1995 (DDA) states:

The Act aims to combat discrimination against persons with disabilities in the fields of employment, supply of goods, facilities and services, transfer or management of property; establish regulations on employment for persons with disabilities and establish a National Commission on Persons with Disabilities [112].

Or as the Basic Law on Persons with Disabilities of Japan stipulates: “On the basis of the principles of national solidarity, society must encourage and motivate cooperation to improve social welfare for persons with disabilities” [75, Article 5].

Based on the provisions of international law and some countries as above, it can be understood that protecting the rights of people with disabilities is understood as commitments, desires, and regulations aimed at creating equality and access opportunities for people with disabilities in all areas of economic, political, and social life and is only meaningful when guaranteed by various measures against all acts of violating the rights and legitimate interests of people with disabilities [91].

In labor relations, there is always inequality between employees and employers. Employees are dependent on the organization, on the economy, on the working environment... In particular, people with disabilities when participating in labor relations as

The fact is that workers are a group of people who are vulnerable and disadvantaged many times more than normal people. Therefore, their legal rights and interests are difficult to ensure. Therefore, one of the top tasks of the law in general and labor law in particular is to protect people with disabilities - a vulnerable group when participating in labor relations.

ILO Convention 159 (1983) on Vocational Rehabilitation and Employment of Disabled Persons stipulates: “Each Member State shall consider the aim of vocational rehabilitation to be to enable every disabled person to find and retain suitable employment, to advance in his or her career, and thus to facilitate his or her integration or reintegration into society” [80, Article 1-2].

Based on the provisions of international law and some countries, we can propose the concept of protecting the rights of people with disabilities in labor law as the provision in labor law of measures and methods to help people with disabilities have equal opportunities to find and maintain a suitable job, to be able to advance in their careers and to be treated equally among disabled workers and between disabled workers and other workers, and to be guaranteed by various measures against all acts of violating the rights and legitimate interests of people with disabilities .

1.2.2. Principles of protecting the rights of people with disabilities

1.2.2.1. Principle of equality and non-discrimination

This principle stems from the view that all people, regardless of their physical, mental and other characteristics, are of equal value and importance and should be protected equally. Therefore, they have the right to be treated fairly and without discrimination in all areas of social life.

This principle is clearly expressed in the Standard Rules on the Equalization of Opportunities for Persons with Disabilities adopted by the United Nations General Assembly in 1993:

Persons with disabilities are members of society, with the right to coexist with the community. They must receive the necessary assistance within the usual structures in the areas of health, education, employment and other services.

society. Society must create conditions for people with disabilities to exercise the same rights and obligations as other members and must be recognized as part of the process of achieving equality [37].

Then, in the Preamble of the 2006 International Convention on the Rights of Persons with Disabilities, it reaffirmed:

Recognizing the importance of the principles and policy guidelines set out in the World Programme of Action on Disability and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in influencing the promotion, development and evaluation of policies, plans and programmes of action at the national, regional and international levels aimed at promoting the equalization of opportunities for persons with disabilities (paragraph f); Also recognizing that discrimination against any person on the basis of disability is a violation of the inherent dignity of the human person [38, Paragraph h].

The laws of countries around the world have also regulated this issue in legal documents to varying degrees. For example, the 1990 Americans with Disabilities Act provides the general principle: “No applicable entity may discriminate against a qualified individual on the basis of disability in the application, hiring, promotion, dismissal, compensation, training or other terms, conditions and rights of employment” [74, Subchapter 1, Section 12112, Clause a]. Or the Chinese Disability Protection Law also states:

Persons with disabilities enjoy equal rights with other citizens in political, economic, cultural and social aspects, in family life and other aspects… Discrimination, insult and infringement against persons with disabilities are prohibited [31, Article 3]; No discrimination against persons with disabilities in employment, recruitment, status regulations, promotions, determination of technical or professional titles, payment to workers, social welfare, labor insurance or in other aspects [31, Article 34].

In terms of law, the principles of equality and non-discrimination can be approached in different aspects of the law and lead to different consequences. On the other hand, to have a basis to determine whether an act is equal or discriminatory towards people with disabilities, there must be legal criteria prescribed by competent authorities [81, pp.18-20, 27-29].

In labor relations, people with disabilities must be protected equally, regardless of gender, occupation, or economic sector. There is no distinction between people with disabilities and people without disabilities, between people with disabilities working part-time and people with disabilities working full-time, between people with disabilities who are union members and people with disabilities who are not union members, between men with disabilities and women with disabilities... as stipulated in the ILO Convention on Vocational Rehabilitation and Employment of Disabled Persons 1983:

Such a policy shall be based on the principle of equality of opportunity between disabled workers and workers in general. Equality of opportunity and treatment between disabled men and disabled women shall be respected. Positive measures specifically aimed at ensuring effective equality of opportunity and treatment between disabled workers and other workers shall not be considered as discriminatory against other workers [80, Article 1-2].

Thus, in the most general way, the principle of equality here is understood as the equality in access to opportunities for education, employment, health care, public services, etc. for people with disabilities in all conditions and circumstances. However, the principle of equality does not mean equal or the same. People with disabilities encounter different types of disabilities and different levels of disabilities and need to be protected by different rights. For example: A person with a particularly severe disability needs full social protection, while a person with a mild disability does not need to do so. Similarly, the prohibition of discrimination does not mean that all forms of discrimination are illegal. In labor relations, people

Employers have the right to require employees to have the necessary skills and qualifications required by the job or work environment and these requirements are legitimate. Therefore, it leads to the possibility of excluding some disabled people from the list of employees, but such cases are not considered discrimination. For example: A security company recruits employees and sets standards on appearance, health, height, reflexes, etc., leading to disabled people (hearing impaired, vision impaired, etc.) not being allowed to work. The requirements in the above case are legal and reasonable, so it is simply a professional requirement and is not considered discrimination.

1.2.2.2. Principles of consultation with people with disabilities, social partners and organizations

society

The basis of this principle is the commitment of the international community in the International Covenant on Civil and Political Rights.

General Service, Convention on the Rights of Persons with Disabilities:

In developing and implementing laws and policies to implement this Convention and in decision-making on matters affecting persons with disabilities, States Parties shall seek close consultation with and active participation of persons with disabilities, including children with disabilities, through their representative organizations [38, Article 4, paragraph 3].

ILO Convention 159 also provides:

Each Member State shall, in accordance with national conditions, practices and capabilities, formulate, implement and periodically review a national policy on vocational rehabilitation of persons with disabilities [80, Article 2] and Representative employers' and workers' organizations shall be consulted on the implementation of the said policy, including measures to promote cooperation and coordination between public and private institutions engaged in vocational rehabilitation. Representative organizations of or in charge of disabled persons shall also be consulted [80, Article 5].

The content of this principle is understood that when promulgating or approving legal documents and policies on protecting the rights of people with disabilities, legislators and policy makers need to consult widely with all individuals or organizations, especially people with disabilities and their representative organizations, relevant social organizations (for example, trade unions and organizations representing employers), organizations providing services for people with disabilities, independent consultants, etc. Each of these organizations and individuals, from their perspective and experience, brings different approaches to the problem that needs to be solved. In summary, it will give lawmakers and policy makers an overview to solve the problem on the basis of harmony between the rights of people with disabilities and the common interests of the community and society in accordance with specific political, economic and social conditions. However, the method, way of organizing consultation, position and value of consultation of organizations and individuals are different depending on the organizational model of each country [91].

1.2.2.3. Principles of ensuring integration and implementation of international commitments

Over the past half century, there have been many initiatives (conventions, recommendations, declarations, action programs, etc.) to protect the rights of persons with disabilities and change society's perception of the issue of persons with disabilities. The most concrete legal result of this process was that on December 13, 2006, the United Nations adopted the Convention on the Rights of Persons with Disabilities. To date, 150 countries have signed, of which 50 have ratified. It includes provisions on the commitments of member countries to internalize the provisions of international law into national law. Specifically, the Convention stipulates:

States Parties undertake to ensure and promote the realization of human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:

a. Adopt legislative, administrative or other measures to give effect to the rights recognized in this Convention;

b. Take all appropriate measures, including legislation, to

amend or abolish existing laws, regulations, customs and practices that discriminate against persons with disabilities;

c. Consider the protection and promotion of the human rights of persons with disabilities in all policies and programmes;

d. To refrain from any act or practice contrary to this Convention and to ensure that all public institutions and authorities act in conformity with this Convention… [38, Article 4, Paragraph 1].

After ratifying the Convention, China, Japan, and Thailand all adjusted their domestic disability laws to conform to the general principles of the Convention on the Rights of Persons with Disabilities.

The International Labor Organization (ILO) is responsible for ensuring equal and suitable working conditions worldwide through drafting standards for countries to ratify in the form of international labor conventions and recommendations, including documents on protecting the rights of people with disabilities such as: Convention No. 111 on Discrimination in the Field of Employment and Occupation in 1958; Convention No. 159 on Vocational Rehabilitation and Employment of Disabled Persons in 1983... Accordingly, Convention No. 159 also provides for the internalization of the provisions of the Convention as a principle that each member country must commit to implementing. "Every member country shall, according to national conditions, practices and capabilities, formulate, implement and periodically review a national policy on vocational re-adjustment for people with disabilities" [80, Article 2].

In order for people with disabilities to fully and equally enjoy human rights and fundamental freedoms of a global nature and to facilitate equal participation in social activities; and at the same time, to build a barrier-free society, countries need to continue to internalize the provisions of international law on the basis of reviewing and ratifying international legal documents related to the rights and protection of the rights of people with disabilities. Only then will the rights of people with disabilities be comprehensively protected not only within the country but also around the world.

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