NAFTA AND WORKERS' RIGHTS: A CANADIAN PERSPECTIVE

 

 

NATIONAL LAWYERS GUILD ANNUAL CONVENTION

Detroit, Michigan/October 22, 1998

 

Leo McGrady
McGrady, Baugh & Whyte
Vancouver, B.C., Canada
October 13, 1998

 

OUTLINE

 

1. INTRODUCTION

Impact of Free Trade Agreements
International Labour Organization

2. THE LEGISLATION

Details
Provincial Participation

3. COMPLAINTS TO DATE

Honeywell and General Electric: U.S. 940001 and 94002
Sony Corporation: U.S. 940003
Sprint Corporation: Mexico 9501
Ministry of the Environment, Natural Resources, and Fishing of Mexico: U.S. 9601
Maxi Switch: U.S. 9602
Sex Discrimination in the Maquiladora Sector: U.S. 9701
Han Young: U.S. 9702
Echlin Workers Alliance: U.S. 9703; Can. 98-1
Solar Panel Manufacturing Company, Carson, CA: Mex. 9801
Washington State Apple Industry: Mex. 9802
Egg Farm in the State of Maine: Mex. 9803
Mexican Airline Flight Attendants: U.S. 9801
Yale Law School Workers' Rights Project

4. CRITIQUE

History of International Labour Standards in Trade Agreements
NAALC as labour legislation
Review of the Assessments of NAALC
The Purists and the Sell-Outs

5. RESOURCES

Websites and E-Mail Addresses

 

 

1. INTRODUCTION

 

Impact of Free Trade Agreements

 

Most of us recall the promises that free trade would lead to dramatic increases in productivity, a higher standard of living, and resources to support social programs in a fiscally responsible manner. Of course, the reality of the FTA of 1989 and the NAFTA of 1994 is profoundly different. In a recent article, the Canadian Centre for Policy Alternatives' Monitor estimated that despite promises of "more and better jobs" from the free trade agreements, they have in fact resulted in more than 200,000 lost jobs. The following description is from the CLC's Country Report: Canada:

 

"The biggest job losses have been in labour intensive areas such as clothing and the assembly of electronic goods. In the clothing industry which employs mostly immigrant women who often speak neither French nor English there were 37,000 jobs lost between 1998 and 1994, representing 30.6% of the pre FTA workforce. Yet total output of clothing has not fallen so dramatically. From 1988 to 1993 clothing production fell by only 10.4%.

 

Such a small production decline relative to such large job losses cannot be explained by productivity increases alone. The principal reason why output stayed relatively high with so many fewer employees is that the garment industry did not so much shift offshore as go underground to non-union, unregulated piece work performed by women in their homes. Homeworkers most often toil for less than the minimum wage without benefits such as pensions, sick leave, unemployment insurance or vacation pay."

 

Strikingly, there has been no employment gain even in the key "winning" sectors &endash; machinery, transportation equipment (mostly auto), and electrical and electronics products. Clearly, the FTA and NAFTA years have been associated with major job losses, even in areas where there have been major export gains.

 

It bears noting that the poverty rate in this country between 1989 (the first year of the FTA) and 1996 increased by 4%, placing over 1,700,000 more persons below the poverty level.

 

The figures serve as interesting counterpoints to some of the criticisms levelled at opponents of the free trade agreements. One of the strongest criticisms came from one of Canada's chief negotiators, a self-described "Canadian trade warrior", Gordon Ritchie. He described the analysis offered by opponents of free trade as "transparently self-serving cant". He continued: "It had more to do with protecting the privileged position of their most powerful constituents &endash; particularly ... organized labour ...".

 

Another damaging side effect of the agreement, of course, is the impact the increased competition for jobs has on employees' and organized labour's bargaining power as companies are able to spread their production facilities throughout the hemisphere. In a panel discussion on the effects of the Free Trade Agreement, Steven Beckman, an economist with the United Auto Workers, offered that in 65% of labour negotiations being conducted in the U.S., employers are using the threat of moving plants to a new location or a new country as a tool to keep wages low.

 

International Labour Organization

 

Because of some similarities between the labour standards provisions of the North American Free Trade Agreement and the International Labour Standards adopted by the International Labour Organization, it may be worthwhile to say a few words about the latter.

 

The fact that Canadian labour law has had international dimensions for the better part of this century is often overlooked. The International Labour Organization was created in 1919. The ILO is a tripartite organization with representatives from government, labour and business. Approximately 150 nations have signed the treaty. The ILO drafts and ratifies labour conventions on such issues as freedom of association, workplace safety, and the right to bargain. Members are able to ratify or not ratify individual conventions. While there are a number of complaint enquiry mechanisms, the primary enforcement mechanism is the publicity resulting from enquiries, publication of reports, and the encouragement of voluntary compliance.

 

There have been only a few of the conventions actually adopted in this country. Adoption requires the approval of the provinces that hold most of the labour law jurisdiction. The ineffectiveness of the ILO convention was captured in a recent case involving a complaint to the ILO as to legal restrictions on the right to strike in the Province of Alberta in violation of ILO convention '87. The complaint was upheld by the ILO's Committee on Freedom of Association. However, the validity of the law was upheld by the Supreme Court of Canada. Our own highest court did not view it as worthwhile to even look at ILO standards for assistance in interpreting the meaning of freedom of association.

 

It is important to note that the ILO has no power to impose trade sanctions, fines, or any other penalties that may have a direct economic impact.

 

 

2. THE LEGISLATION

 

Details

 

The labour side agreement is formally known as the North American Agreement on Labour Cooperation, or NAALC. This agreement came into force on January 1, 1994 (Article 51). It is divided into seven parts.

 

Part 1 (Article 1) deals with objectives, the most important of which are as follows:

 

(a) to improve working conditions and living standards in each of the three countries;

 

(b) to promote to the maximum extent possible the following eleven labour principles set out in Annex 1:

1. Freedom of association and protection of the right to organize

2. The right to bargain collectively

3. The right to strike

4. Prohibition of forced labour

5. Labour protections for children and young persons

6. Minimum employment standards

7. Elimination of employment discrimination

8. Equal pay for women and men

9. Prevention of occupational injuries and illnesses

10. Compensation in case of occupational illnesses and injuries

11. Protection of migrant workers

 

(c) to encourage cooperation to promote innovation and increase levels of productivity and quality; and

 

(d) to promote compliance with an effective enforcement by each party of its labour law.

 

Part 2 (Articles 2 to 7) sets out the obligations assumed by the parties.

 

Article 2 provides that the obligations must be interpreted in the context of full respect for the constitution of each of the three countries, as well as full respect for the right of each country to establish and modify its own domestic labour standards. Subject to those important qualifications, each party is obliged to ensure that their labour laws provide for high labour standards consistent with high quality and high productivity workplaces.

 

The term labour law is defined in Article 49 as including the eleven labour principles referred to above.

 

Article 3 provides that each country must promote compliance with and effectively enforce its labour law. It may not, however, empower its authorities to enforce labour law activities in the territory of any other country. Illustrations of effective enforcement include appointing and training inspectors, monitoring compliance, investigating suspected violations, and initiating proceedings to seek appropriate sanctions or remedies for violations. Articles 4 and 5 set out certain assurances of access to impartial tribunals, compliance with due process of law, public hearings, access to natural justice, and so on.

 

Part 3 (Articles 8 to 18) sets up the Commission for Labour Cooperation (Articles 8 to 19). It consists of a council of labour ministers and a supporting Secretariat. This part also provides for the establishment of a National Administrative Office in each country, and the undertaking of cooperative activities in a number of labour and human resource development areas. The functioning of the two institutions created under this part has been described as follows:

 

"What has happened since the NAALC came into force on January 1, 1994? First, two new institutions were created: the Commission for Labour Cooperation and the National Administrative Offices (NAOs). The NAALC does not create new levels of government, rather it establishes a coordinating structure among the countries.

 

"The trilateral commission has two parts: the Council of Ministers, namely the minister responsible for labour in each of the three countries, and a Secretariat, which is located in Dallas, Texas. The council, which has overall responsibility for implementation of the agreement, directs the work and activities of the secretariat (including its reports and studies) and of any working groups or experts it consults. The secretariat will have a total staff of 15, equitably divided among the three countries. ....

 

"The NAO, on the other hand, is not part of the commission. It serves the Canadian representative on the council. Under the terms of the agreement, each country was to set up an NAO which all three countries did in January 1994."

 

Part 4 (Articles 20 to 26) is one of the most important parts of the Agreement.

 

Articles 20 to 22 set out the first of the three levels of review. It is the broadest of the three levels. Article 20 requires the parties to commit to make every attempt through cooperation and consultation to resolve any matter that might affect the operation of this agreement. Presumably, any matter means any of the 11 matters defined in Section 49 as matters relating to labour law.

 

Article 21 provides for consultation between NAOs. It stipulates that an NAO may request consultations with the NAO of one of the other two parties with respect to that party's labour law or administration. The Article requires the NAO to provide such information as is publicly available with respect to the request.

 

Article 22 provides for ministerial consultations. Any party may request consultations with another party at the ministerial party level regarding any aspect of the agreement. The third party may also participate. All parties are then required to make every attempt to resolve the matter through consultation. There are no time limits at this level, nor any prescribed remedies or courses of action, set out.

 

Thus far, complaints under NAALC have not proceeded past this first level, although some pending complaints have requested redress at levels 2 and 3.

 

Article 23 provides for the second level of review, an evaluation committee of experts. If matters are not resolved after ministerial consultations under Article 22, a consulting party may request the establishment of an evaluation committee of experts. The committee is then required to analyze the practice by each party in the enforcement of its laws dealing with what is referred to as "technical labour standards". There are eight technical labour standards which include prohibition of forced labour, labour protection for children and young persons, minimum standards including wages and overtime, employment discrimination, equal pay and protection of migrant workers.

 

It appears that matters of freedom of association, the right to bargain collectively, and the right to strike, often described as the three cornerstones of labour rights (and the first three elements in the definition of labour law, above), are excluded from the definition of technical labour standards, and therefore from the operation of the committee.

 

Article 24 deals with the rules of procedure for the committee. It consists of 3 persons having expertise in labour matters; they are chosen on the basis of objectivity and judgement. They must also be independent and comply with the code of conduct established by the council.

 

There is provision for written submissions from the parties and the public. A draft report must be submitted to the council within 120 days after the committee is established. The final report must be presented within 60 further days. The council must then publish the final report within 30 days after receiving it (Articles 25 and 26).

 

Part 5 (Articles 27 to 41) of the legislation deals with dispute resolution. Matters move now to the third level of review.

 

Article 27 provides that following presentation to the council of the committee report under Article 26, any party may request consultations with another party regarding whether there has been a persistent pattern of failure by that other party to effectively enforce standards. They are then required to make every attempt to arrive at a mutually satisfactory resolution. The third level of review is only available with respect to an EEC final report that addresses the enforcement of one of three issues: occupational health and safety, child labour, or minimum wage technical labour standards. While the EEC initially had jurisdiction over eight technical labour standards, the scope of review for the next level is reduced to three.

 

Article 28 provides that where matters continue to be unresolved within 60 days of a request for consultation, a party may request a special session of the council. The council may use technical advisors, employ conciliation, mediation or any other dispute resolution procedures, or make recommendation.

 

Article 29 provides for an arbitration panel. If matters remain unresolved within 60 days after the council has convened, any party may request an arbitration panel. On a two-thirds vote of the council, an arbitration panel may be convened to investigate the allegation of a persistent pattern of failure by a party to effectively enforce the aspects of its labour standards referred to above.

 

Members of the arbitration panel are selected from a roster of 45 individuals who are considered experts, are objective, and are independent (Articles 30 and 31). The panel consists of 5 members. The basic rules of natural justice are also provided for (Articles 32 to 35).

 

The panel may issue an initial, and then a final, report with timelines of 180 days and 60 days, respectively (Articles 36 and 37).

 

If the panel determines there has been a persistent pattern of failure by the party to effectively enforce its occupational safety and health, child labour, or minimum wage technical labour standards, the parties may agree to a mutually satisfactory action plan (page 38).

 

If there is no agreement, the panel may be reconvened. It may approve any agreed to remedy, or it may establish a remedy; it may also impose a monetary assessment. For the first year of the existence of the agreement, the monetary assessment shall be no greater than $20 million (U.S.). Thereafter, the penalty shall be no greater than .007% of total trade and goods between the parties during the most recent year. Failure to pay any enforcement may result in the suspension of benefits (Article 41).

 

Curiously, Annex 39 requires that any monetary enforcement assessment "shall be expended at the direction of the Council to improve or enhance the labour law enforcement in the Party complained against, consistent with its law". One wonders then as to the deterrent value of any monetary enforcement assessment under the legislation.

 

Part 6 (Articles 42 to 49), contains a number of general provisions. These set out the principle that nothing in NAALC enables a party to undertake law enforcement activities in the territory of another party (Article 42). In addition, the part provides that no party can provide for a right of action under its domestic law against any other party for violating this agreement (Article 43). It also contains the definition section.

 

Part 7 (Articles 50 to 55) contains a number of miscellaneous provisions. The most important of these stipulates that a party may withdraw from NAALC six months after providing written notice of withdrawal (Article 54).

 

Finally, Annex 46 of the agreement limits its application to matters within the federal jurisdiction. In addition, it provides that consultation amongst NAOs, the establishment of a committee of experts under Part 4, as well as the dispute resolution under Part 5, are not available unless the federal government and the provinces bound by NAALC account for at least 35% of Canada's labour force, and where the matter concerns a specific industrial sector, at least 55% of the workers concerned are employed in provinces covered by NAALC. Also, the above procedures are not available for any province which has not opted to be bound by NAALC.

 

The 35% threshold has been met since Québec opted in. The following were the figures:

 

Québec: 24.4% of the Canadian workforce

Federal Government: 10%

Province of Alberta: 10%

 

totalling approximately 44% to 45%. Manitoba accounts for slightly under 4% of the workforce.

 

The fourth province, Prince Edward Island, opted in on October 7, 1998.

 

The three levels of review may be summarized as follows:

 

(1) Generalized, open-ended review by "cooperative consultation";

(2) A review process including independent evaluation by experts, that excluding matters related to organizing, bargaining, and strikes; and

(3) A highly limited area for arbitration and sanctions.

 

The following chart may assist in the understanding of the three levels:

 

NAALC &endash; THREE TIERS OF ENFORCEMENT

TIER 1

TIER 2

TIER 3

NAO
Ministerial Consultations

Evaluation Committee of Experts

Arbitration before Arbitral Panels

All eleven Labour Principles including the right to organize, bargain and strike

Eight of the eleven Labour Principles, including prohibitions of forced labour, child labour, and employment discrimination; minimum labour standards (e.g. minimum wages and overtime); equal pay for men and women; health and safety; workers' compensation and protection of migrant workers

Three of the Labour Principles, i.e. health and safety, child labour and minimum wages

 

 

Provincial Participation

 

Alberta was the first province to sign on to NAALC. It did so on May 31, 1995. There has been, of course, speculation as to why a province notoriously unsympathetic to the trade union movement would be the first to sign on. Perhaps the most accurate assessment comes from an official who offered the view that Alberta signed on precisely because NAALC is meaningless. He expressed the view that Alberta viewed the signing-on process as an inoculation against a more meaningful piece of legislation.

 

Manitoba became a signatory to NAALC in January of 1997. Québec signed in February 1997. New Brunswick is participating in cooperative activities.

 

B.C. has rejected NAALC outright. Its criticism of NAALC is that it contains no minimum standards and no realistic enforcement mechanism. Its view is that it wishes core ILO standards.

 

Thus there could be no complaint under NAALC of labour board policies such as we have experienced under IML, which may violate some of the international standards on freedom of association. Similar comments would apply with respect to working conditions faced by B.C.'s farm workers, home workers in the garment industry, as well as domestic workers and others in the service industry.

 

 

3. COMPLAINTS TO DATE

 

The first four cases filed under NAALC are summarized in an article by Professors R. Adams and P. Singh, "Worker rights under NAFTA: Experience With the North American Agreement on Labour Cooperation", in Worker Representation In The Era Of Trade And Deregulation: Selected Papers From The XXXLLLnd Annual CIRA Conference, 1997, page 85 at 87 and following.

 

Honeywell and General Electric: U.S. 940001 and 94002

 

The first two complaints were filed by the International Brotherhood of Teamsters (IBT) against Honeywell, and the United Electrical Radio and Machine Workers of America against General Electric, with the NAO in Washington, D.C. They alleged the violation of workers rights at two sites in the maquiladora zone. They alleged that the two U.S. subsidiaries fired groups of employees in late 1993 because of their attempts to form unions affiliated with the Authentic Labour Front (FAT). The companies defended their conduct in responding to the complaint by saying that the terminations were based on legitimate management decisions to downsize, and in some cases were based on employee misconduct. The U.S. NAO, after reviewing the evidence and conducting its own investigation, concluded that ministerial consultations were not needed. It recommended educational seminars and programs.

 

Sony Corporation: U.S. 940003

Some six months later, in August of 1994, a number of human rights and worker organizations (two American and two Mexican) filed a complaint with the U.S. NAO alleging that a subsidiary of Sony Corporation thwarted union organizing in its plant in Neuvo Laredo, another town in the maquiladora section. It is alleged that police violence had been used to intimidate the workers.

 

The specific allegations were that Sony had violated the workers' right to organize, freedom of association, and minimum employment standards relating to hours of work and holiday work. Professors Adams and Singh described the substance of the complaint as follows:

 

"...1) the company collaborated with the leadership of the CTM to thwart the organizing drive by an independent union;

2) the company threatened, suspended and fired workers involved in the organizing drive;

3) there was gross misconduct of union elections, such as giving workers less than a day's notice, voting not being held by secret ballot, and intimidation;

4) the company collaborated with the police in violently suppressing industrial actions following the elections; and,

5) the Mexican government thwarted attempts by the workers to register an independent union to represent workers at the plant."

 

The NAO concluded that its investigations disclosed that the Mexican authorities had failed to adequately enforce their labour laws. It recommended ministerial discussions on the issue. After those consultations, it was announced that the parties had agreed to implement a series of activities to educate all parties on labour laws dealing with union registration. The Mexican Department of Labour representatives were to meet with Sony representatives to discuss these issues.

 

In a letter to the Minister of Labour from Robert White, President of the Canadian Labour Congress, as the CLC's comment on the fourth year review of NAALC, the following comment was made about the Sony case:

 

"The case of the workers of the Sony subsidiary, Magneticos de Mexico, who were violently beaten, denied their union, and ultimately their jobs, raises serious doubts about the potential value and positive outcomes of the NAALC. For these Mexican workers, the NAALC has been at best negligent, at worst a fraud, for it led them to believe that the side deal would offer them some protection of their rights." (page 3)

 

Sprint Corporation: Mexico 9501

This involved the first complaint filed by a Mexican union against the United States. It was filed in February of 1995 by the Independent Union of Telephone Workers of the Republic of Mexico in conjunction with the Communication Workers of America. It requested that the Sprint Corporation be investigated for closing a subsidiary in San Francisco a few days before a scheduled representation vote was to be conducted by the National Labour Relations Board (NLRB).

 

Most of the 235 workers were Mexican-Americans; the closing of the plant, it was alleged, was motivated by an attempt to frustrate the effort by the workers to organize the spent subsidiary.

 

The complaint also criticized the slow pace of NLRB reviews and the low level of fines under U.S. law. These were problems that U.S. unions had been complaining of for years. NAALC was a first effort to use the side agreement as a way of pressuring the NLRB and the federal government for action.

 

The Mexican NAO recommended ministerial consultation after it had completed its investigations. This is considered to be the equivalent of a finding that some of the NAALC principles had been violated. Ministerial consultations were then undertaken, resulting in a three-step plan: developments with respect to a parallel complaint to the NLRB were to be monitored; there was to be a study by NAALC's secretariat on the effect of sudden plant-closing on the right to organize; and a public forum was to be held to discuss issues raised by the cases.

 

These cases involve, of course, the principle of freedom of association, one of the three first-tier subjects. They may not proceed to evaluation or dispute resolution. Many labour rights advocates say these cases prove the weaknesses of NAFTA's Labour Side Accord.

 

Ministry of the Environment, Natural Resources, and Fishing of Mexico: U.S. 9601

 

On June 13, 1996, the Human Rights Watch/Americas, the International Labour Rights Fund, and the National Association of Democratic Lawyers filed a petition with the U.S. NAO. The submission arose from a dispute over the representation of employees of the federal government at the above-mentioned Ministry. At issue was the right of an independent union, SUTSP, to continue to represent some 2,300 workers from the fishing Ministry subsequent to the consolidation of that Ministry with 20,000 workers from the Ministry of Agriculture and 3,000 from the Ministry of Development. The latter two groups of workers were represented by the Federation of Unions of Workers in the service of the state, the only legally recognized union federation in the federal sector. The federal conciliation and arbitration tribunal had ruled that SUTSP had ceased to exist subsequent to the consolidation of the Ministries. The Federation of Unions of Workers in the service of the state was affiliated with the Mexican ruling party, the Institution of Revolutionary Party (PRI). SUTSP complained of three matters involving freedom of association, the right to organize, and the impartiality of labour tribunals, all matters covered under NAALC:

 

(1) The federal conciliation and arbitration tribunal had violated labour laws involving freedom of association and the right to organize during the process at hearing the SUTSP case;

(2) Mexico's law of federal employees, which regulates federal workers such as those in the former fishing Ministry, mandates a limitation on the number of unions that workers can create, and the number of federations to which such unions can belong;

(3) The federal conciliation and arbitration tribunal system suffers from a conflict of interest to the detriment of workers independent of the party PRI in violation of NAALC's requirement that labour tribunal proceedings be fair.

 

On June 27, 1997, the U.S. NAO issued its report. The NAO recommended ministerial consultations for the purpose of examining the relationship between and the effect of international treaties such as ILO Convention 1987 and constitutional provisions on freedom of association on the national labour laws of Mexico (page 33).

 

Maxi Switch: U.S. 9602

 

On October 11, 1996, the Communication Workers of America, the Union of Telephone Workers of the Republic of Mexico, and the Federation of Unions of Goods and Services Companies filed a submission with the U.S. NAO concerning freedom of association issues at Maxi Switch in Cananea, Sonora, Mexico. The substance of the complaint by the CWA was that Maxi Switch, with the collusion of government officials, and representatives of the conciliation and arbitration board of the State of Sonora, consistently violated the law to prevent Maxi Switch workers from joining a union of their own choosing.

 

Maxi Switch operated a maquiladora factory producing high tech keyboards for computers and game sets. It was a subsidiary of Silitek headquartered in Taiwan. It had factories in Malaysia, Taiwan and China, as well as a distribution centre in Ireland. It also had subsidiaries in Germany, Ontario, and many states of the U.S.

 

The complaint was the subject of a brief article in The Morning NAFTA. The independent union was described as one representing some 400 mostly teenage women fighting for better conditions. They were working for 10 hours a day for $3.50 U.S. Their objective in forming a union was to negotiate higher wages, as well as improve ventilation in the plant where fumes regularly incapacitate the workers.

 

The complaint alleged that as soon as the union indicated to management that they were in the process of organizing, management began a series of illegal threats and intimidation. The workers were told they would be fired if they joined the union. Those who had joined were told they would benefit if they resigned from the union. A key organizer was, in fact, fired for trying to organize a union.

 

Shortly thereafter, it appeared that the company signed a "protection contract" with "phantom unions", as they are called in Mexico. The new union applied for registration before the Sonora conciliation and arbitration board in Hermosillo. The chair of the board was, in fact, a member of a rival union federation, CTM, which, of course, is closely affiliated with the governing party, PRI. Shortly after the application for registration, an 18 year old officer of the union was assaulted and beaten. Another company representative told her to resign or she would be accused of robbery. The equivalent of an unfair labour practice was filed as well as criminal charges, with no results.

 

Shortly thereafter, two other union officials were fired. The company stepped up its threats to include massive layoffs and a closing of the factory.

 

The conciliation and arbitration board rejected the application for registration on the grounds that there already was in existence a collective agreement signed with a state union. The board refused to divulge the name of the union or to provide a copy of the contract. The FAT union subsequently learned, to no one's surprise, that the union was, in fact, an affiliate of the CTM.

 

A public hearing was scheduled for April 18, 1997 in Tucson, Arizona. It was a public hearing scheduled by the U.S. NAO.

 

Just prior to the hearing, the Mexican government informed the union that it would be allowed to become certified. It appears as well that the fired workers will get reinstated.

 

Sex Discrimination in the Maquiladora Sector: U.S. 9701

 

On May 15, 1997, Human Rights Watch, the International Labour Rights Fund, and the National Association of Democratic Lawyers of Mexico filed a submission pursuant to NAALC with the U.S. NAO. It was accepted for review. A public hearing was held in Brownsville, Texas, on November 19, 1997.

 

The submission complained of gender discrimination through the routine conduct of pre-employment pregnancy screening and post-hire dismissal for reasons of pregnancy of women job applicants and employees in the maquiladora zone. Specifically, employers require women job applicants to undergo pregnancy tests and then deny employment to those who are pregnant as a way of avoiding payment of the mandatory maternity benefits.

 

Under Mexican law, women are entitled to six weeks' paid maternity leave before and after delivery.

 

The submission alleged that by failing to enforce its labour laws Mexico was in violation of Article 3(1) on effective enforcement, and Article 4(1) and 4(2) on access to tribunals for enforcement of labour law. In addition, they allege that discrimination was inconsistent with NAALC's preamble, as well as the labour principles in Annex 1 of NAALC, specifically the commitment to the elimination of employment discrimination on the basis of sex.

 

They filed an additional complaint that Mexico was in violation of ILO Convention 111. The NAO recommended ministerial consultation on the issue.

 

Maquiladoras account for over $29 billion in export earnings from Mexico and employ over 500,000 workers, at least half of whom are women. Most of the women are poor, and under-educated. Most had not finished primary school and had very little work experience outside the maquiladora sector. In most cases, their only opportunity for work was in domestic service which paid them poorly and allowed them very little control over their schedules and working conditions, as well as providing no health insurance or social security.

 

In addition to examinations administered by doctors or nurses at the hiring stage, maquiladora staff try to determine a woman's pregnancy status by asking intrusive questions about the woman applicant's menstrual schedule, whether she is sexually active, or what type of birth control she uses.

 

Should a woman obtain employment and then become pregnant, managers sometimes attempt to reassign that woman to more physically difficult work, or demand overtime in an effort to force them to resign.

 

If women are screened out of the applicant pool and denied jobs in the maquiladora section, these pregnant women are rendered virtually unemployable. They are often single mothers or their family's primary wage earners. Their desperation to get or retain maquiladora jobs, combined with ignorance of the law, make them reluctant to contest the discriminatory testing or forced resignations.

 

Included in the list of companies involved in this practice were Teledyne, Panasonic, a company making toys for Fisher Price, AT&T, Zenith, Datacom, IT&T, and Sunbeam.

 

The NAO, pursuant to Article 22, recommended ministerial level consultation to clarify the law and practice in Mexico on pre-employment pregnancy screening and post-hire discrimination on the basis of pregnancy.

 

Han Young: U.S. 9702

 

This submission was filed on October 30, 1997 by the Support Committee for Maquiladora Workers, the International Labour Rights Fund, the National Association of Democratic Lawyers of Mexico, and the Union of Metal, Steel, Iron and Allied Workers of Mexico. This is one of the most extraordinary cases of unfair labour practices that I have ever seen recorded. Han Young is one of five maquiladoras that serve as feeder plants in Baha, California, for Hyundai Precision America. Han Young does the welding and assembly of chassis and platforms for tractor-trailer trucks for the company which contracts with the U.S. Marines, MATSEN, Transamerica, and other large American concerns.

 

The company had a contract with a PRI-affiliated union. Although a union representative appeared at the plant every two weeks to pick up a cheque from the company, the union never held a meeting with workers, nor did it provide workers a copy of any contract with the company.

 

In April of 1997, workers began to organize their own independent union. Their major concerns were:

 

(1) Occupational health and safety, including complaints of illnesses, burns, injuries such as broken bones, and loss of vision due to lack of basic protection such as ventilation systems, safety shoes, glasses, gloves, masks, and facial shields;

(2) Each worker's pay was determined individually by management on the basis of personal favouritism irrespective of experience, skill and seniority;

(3) Low wages with many welders and assembly workers earning between $19 and $30 for a forty-eight hour week, necessitating many workers having a second job beyond their 48 hours or more with Han Young in order to support their families (page 7).

 

After initial conciliatory efforts, the company hired a new director of human resources who was described as an expert in psychological warfare against union organizing. Shortly thereafter, it began a campaign of harassment, intimidation and attacks against supporters of the independent union. The company also began making offers to pay a $2,000 bonus for union leaders to discontinue organizing for the independent union, or be fired without severance pay if they did not. When the workers refused to comply, they were fired. Some of the union leaders were physically assaulted. Another government-sponsored union then appeared and met with the workers. That union began to hand out free food and beer on Fridays. Management began to spread the word that workers must vote for this new government-affiliated union and not the independent union.

 

A registration hearing for the independent union was scheduled and then cancelled because of a clerical error by the conciliation and arbitration board. There was evidence as well that the state government met with the local directors of the television news and ordered them not to broadcast anything about the situation at Han Young, including the aborted hearing. Recorded coverage was then cancelled (page 13).

 

The union election was held on October 6th. Supporters of the independent union were threatened and insulted throughout the vote. In addition, a number of management and administrative personnel, company supervisors, the company nurse, administrative secretary and others turned up to the voting place in order to vote. In addition, 14 newly hired employees showed up to vote. Independent American observers of the election were ordered by the police to leave the voting area. The independent union was nonetheless successful in the vote.

 

The conciliation and arbitration board subsequently nullified the election results. It restored the registration of the established government-sponsored union.

 

Following considerable press coverage and international attention, including the review by the NAO, Mexican federal authorities intervened and facilitated a new election on December 16, 1997. This election was also won by the workers' union and the union was awarded representation rights. The dismissed workers were reinstated and the hunger strikers ended their fast.

 

Subsequently, the company continued its harassment against the independent union supporters. It dismissed another 11 workers and hired additional workers to delude its support. A new election was ordered by the CAB in which one of the government-sponsored unions will be afforded the opportunity to challenge a new workers' union.

 

The NAO found that the conciliation and arbitration board acted in a manner inconsistent with Mexico's obligations under NAALC. It recommended a ministerial level of consultations to address these issues to ensure the rights of freedom of association and collective bargaining.

 

This is the first independent union ever certified in a Mexican maquiladora plant, although, as the most recent reports earlier this year indicate, the company still refused to negotiate with the union. In the meantime, the Mexican government levied fines of $9,000 a day on the company for its violations of the health and safety regulations.

 

Echlin Workers Alliance: U.S. 9703; Can. 98-1

 

Echlin Workers Alliance includes the Teamsters, the Canadian Auto Workers, the Union of Needle Trades and Industrial Textile Employees, the United Electrical Radio and Machine Workers of America, the Paper Workers, and the Steel Workers. They filed a submission with the U.S. NAO on December 15, 1997 The submission was supported by 24 other human rights groups and labour unions from the three NAFTA countries. The submission was noteworthy for the reason that for the first time in NAFTA's existence, labour centrals from each of the three countries were signatory to the complaint as co-petitioners. Parallel complaints were filed in Canada with the Canadian NAO. This was the first time the complaint procedure has been used in Canada by the CLC and its affiliates.

 

The Canadian complaint to the NAO of Canada was filed April 6, 1998 by the USWA, IAM, CAW, Teamsters, UNITE, United Electrical Workers, United Paperworkers, FAT, CLC, National Workers Union, and the AFL-CIO.

 

Echlin Corporation is based in the U.S., but operates in Canada, the U.S. and Mexico. In Canada, Echlin operates through a subsidiary, Meelon Casting Ltd., in Sudbury, and another subsidiary, Echlin Canada Inc., operates in Mississauga, Ontario (page 4). The company is engaged in the production and distribution of automobile parts. Its sales in 1997 totaled $3.6 billion; it employs 32,000 people throughout the world.

 

The charges claim that the company collaborated with the government, controlled unions, and allowed worker intimidation and voter fraud to keep an independent Mexican union out of the plant. The Alliance of Echlin Workers includes unions certified in the company plants in Canada and the U.S., as well as in Mexico.

 

The complaints include allegations that not only were the Mexican workers denied their right to exercise freedom of association but the companies failed to comply with health and safety regulations. Workers were regularly exposed to asbestos and other health hazards.

 

Workers were paid $33 to $45 per week. They were unionized under a CTM (Confederation of Mexican Workers), the largest union confederation in Mexico and closely linked to the PRI (the dominant political party in Mexico). None of the employees had a copy of any contract. In addition to the low wages, workers complained of abusive supervisors, sexual harassment, and the failure of the company-dominated union to respond to their complaints. The company kept the workers under an extraordinary level of surveillance. It forced workers to work more quickly, leading to more asbestos dust and more dangerous working conditions. In addition, it fired about 50 employees suspected of the supporting the independent union.

 

During the election, the company brought in approximately 170 armed thugs, whose activities were coordinated by the industrial relations manager and by an officer of the CTM. Some of the thugs were members of the judicial police force. They physically prevented large groups of employees, who were known to the supporters of the independent union, from participating in a vote. Several of the independent union supporters were severely beaten during the vote. The conciliation and arbitration board refused to suspend the election.

 

The allegations include suggestions that rather than prevent abuses or deny them legal effect, Mexican government authorities participated in some of the challenged conduct, refused numerous requests to delay the elections, and later certified the representation election in favour of the government sanctioned union (pages 1 and 2).

 

Solar Panel Manufacturing Company, Carson, CA: Mex. 9801

 

This submission was filed on July 10, 1998. It complained that the United States government had failed to enforce its laws on freedom of association, right to organize, right to engage in collective bargaining, prevention of occupational injuries and illness, and establishment of minimum employment standards, in relation to unionization efforts at a solar panel manufacturing company in Carson, CA.

 

Washington State Apple Industry: Mex. 9802

 

This complaint was filed by the International Brotherhood of Teamsters and the United Farmworker of America on May 27, 1998. The Teamsters represent the workers in the packing, shipping and storage facilities. The United Farmworkers represent the field workers, who are excluded under the federal labour legislation.

 

Agricultural workers are excluded from the major federal U.S. labour relations legislation. Only four of the states have enacted labour legislation covering agricultural workers. Washington State has no such legislation.

 

The complaint is exhaustive, precise, and compelling. It consists of a detailed review of the failures of American labour legislation and both federal and state legislation to protect these workers contrary to NAALC. Even where farmworkers are covered, the complaint cites budget cuts resulting in ineffective enforcement and unnecessary complications and unwarranted delays.

 

The Washington State apple industry supplies 60% of the U.S. market. It employs 35,000 to 45,000 pickers at peak harvest time from late August to November. Some 10,000 workers are employed in the industry's packing, shipping and storage operation. Seven percent of the growers control 53% of the orchards.

 

While industry revenues have almost tripled in the past decade, wages of warehouse and field workers have fallen below poverty lines, as defined by both federal and state workers. Year-round field workers earn an average wage of less than $10,000 per year; for a warehouse worker, the wage is $12,000 per year. The official poverty line for a family of three in that State is $13,330.

 

In addition, they are provided with no health insurance. Unfair discharges are common. Workers who stand up for their rights are often suspended or terminated. They face high exposure to dangerous chemicals, safety hazards, and unsanitary conditions in fields and warehouses. Repetitive motion and back injuries are wide-spread. Housing conditions are substandard.

 

Migrant workers experience threats about their legal status and experience discriminatory cuts in benefits under immigration and welfare reform laws.

 

The complaint asks the NAO of Mexico to undertake cooperative consultations with the NAO of the U.S. It also seeks the engagement of an independent Mexican expert to visit Washington State for an on-site investigation of labour right violations. It requests that information sessions be held with workers from the Washington State apple industry by on-site visits or by receiving a delegation of workers from Washington State in Mexico. They also urge the ministers to encourage adoption of a corporate code of conduct whereby all employers in this industry, throughout North America, will bind themselves to respect workers' rights in accordance with the labour principles of NAALC. Failing ministerial consultations, they seek the establishment of an evaluation committee of experts under Article 25. They then seek further consultations after the ECE report under Article 27 of NAALC, including a utilization of Article 28 mechanisms. Finally, if such consultations do not succeed in resolving the issues, they ask to seek the support of a minister of labour of Canada to request an arbitral panel under Article 29 of NAALC to consider the consistent pattern of failure of the U.S. to effectively enforce its occupational safety and health, child labour, or minimum wage technical labour requirements.

 

Egg Farm in the State of Maine: Mex. 9803

 

This complaint was filed on August 10, 1998. It alleges that the U.S. had failed to guarantee Mexican migrant workers employed at an egg farm in Maine the protection of American law. The complaint included allegations that the company had violated minimum employment standards, discrimination laws, and laws relating to the prevention of occupational injuries and illnesses.

 

Mexican Airline Flight Attendants: U.S. 9801

 

A new submission was recently filed with the U.S. NAO. It related to the Mexican government's handling of a strike by Mexican Airline Flight Attendants.

 

Yale Law School Workers' Rights Project

 

This complaint was filed on September 17, 1998 by a coalition of American groups led by the Yale Law School Workers' Rights Project. The complaint was filed with the Canadian and Mexican NAOs. It dealt with allegations of the lack of enforcement by the U.S. of minimum wage and overtime protection legislation in workplaces employing foreign nationals.

 

It alleged that U.S. policy deters immigrant workers from reporting wage and hour violations to the U.S. Department of Labour by requiring the Department to act as an agent for the Immigration and Naturalization Service. The Department of Labour investigators are required to examine the immigrant status of workers and report suspected violations to the Immigration and Naturalization Service.

 

As a result, immigrant workers were unwilling to file an employment standards complaint because it could lead to deportation.

 

 

4. CRITIQUE

 

History of International Labour Standards in Trade Agreements

 

One of the most interesting aspects of the debate about the inclusion of labour standards in international trade agreements is the claim by the opponents that historically we have never pressed other countries to accept our notions of fairness and dignity in the production of commodities for trade. Thus, the argument goes, it would be unfair and counter-productive to introduce such norms now in NAFTA or MAI.

 

As with many of these arguments, the reality is very different. Indeed, the first recorded labour standard passed by the Canadian government affecting international trade came in the 1907 legislative ban on prison-made imports. Indeed, one international trade expert has traced the linking of international fair labour standards with trade policies back to the late 19th century.

 

In fact, an argument can be made that NAFTA represents a break with the pattern of establishing a linkage between increased trade liberalization and the improvement of labour standards. .

 

NAALC as labour legislation

 

Before considering some of the published criticisms of NAALC, it is worth pausing for a moment to evaluate the agreement in the context of what we have come to expect from a domestic instrument setting out enforceable labour rights.

 

Judging the NAALC by the traditional criteria for effective adjudication by an administrative or a judicial body, one would have to conclude that the NAALC process is simply absurd. That proposition is illustrated by the following list of problems. The recitation is not, of course, an exhaustive list of the flaws of NAALC.

 

(1) There is an ever-shrinking range of subjects over which complaints are admissible, reducing from 11 to 8, and then to 3.

 

First, the parties may engage in cooperative consultation, the first level of review, over some 11 matters (Articles 21, 22, and 49).

 

For the second level of review, the 11 are then reduced to 8, excluding the three fundamental rights: the right to freedom of association and protection of the right to organize, the right to engage in collective bargaining, and the right to strike. If the parties have unsuccessfully consulted on any of the 8, independent experts may conduct an analysis and review (Articles 23 to 26).

 

If that process is unsuccessful, the matters that can be arbitrated, the third level of review, are reduced from 8 to 3. Occupational health and safety, child labour, and minimum wage are the only ones subject to arbitration and enforcement through monetary sanctions.

 

(2) Violations with respect to the latter 3 can only be enforced where there is a "persistent pattern of failure to effectively enforce" those provisions (Article 27).

 

(3) It is impossible to see any pattern, or any rational explanation, of the system of time limits in NAALC. NAO consultation and/or ministerial consultation are prerequisites to access to the evaluation committee process, and both are prerequisites to arbitration. Yet no time limits are specified for the first level of review, which is controlled exclusively by the three parties to the agreement.

 

For the second level of review, the evaluation committee of experts, there are time limits that could total almost ten months. In addition, it appears the council has unfettered discretion with respect to the time required for the preparation of its draft report.

 

The total specified time period for the third review level, arbitration enforcement, could easily exceed three years.

 

(4) There is no provision for private enforcement of rights. Enforcement at all times is in the hands of the government of one of the three parties. If the government of the day is opposed to the complaint, or simply disinterested, there is no effective option for the enforcement of any of the NAALC principles.

 

The contrary is true, of course, with respect to private enforcement of commercial obligations under NAFTA. The point was recently made in an article by Professor Robert Paterson of the Faculty of Law, University of British Columbia:

 

"More than its predecessors, the NAFTA contains devices whereby private parties, as well as states, can access procedures for the settlement of transnational trade disputes. For instance, a United States investor in Canada is now able to invoke compulsory arbitration, leading to a binding decision about the extent to which Canada has lived up to its NAFTA obligations regarding the treatment of American investors."

 

He goes on to note the increased importance of private enforcement of rights given the perceived weakening role of national governments in international economic activity, and the parallel growth in strength of private interests, such as multinational corporations.

 

Under NAFTA, there are three instances of dispute resolution accessible to private parties:

 

(i) Chapter 11 disputes over investment issues may be processed through transnational arbitration;

(ii) Chapter 17 disputes over intellectual property issues may be processed through the domestic courts;

(iii) Chapter 19 disputes over the imposition of anti-dumping and countervailing duties, which are processed through a bi-national panel appellate review option.

 

(5) Any effective process for the enforcement of workers' rights must be accessible to non-lawyers, to workers and/or their lay representatives. The entire NAALC process is so complex as to require the involvement of legal counsel at the various stages.

 

(6) The process is expensive, almost invariably requiring extended travel for NAO-conducted hearings in a country other than the country in which the complaining union members reside.

 

One is tempted to view the NAALC process as an "elaborate show trial" designed to create the impression of real progress on worker rights, and to mask the reality.

Despite the elaboration of the 11 basic labour rights in the agreement, the high level of political control of the process, combined with the lack of private access, and the lack of effective enforcement set out in the agreement, convert these basic rights into the very antithesis of rights. I say that in the sense that oftentimes falsely persuading people that they have rights, when in reality they do not, has historically been the most effective deterrent to people struggling for those rights.

On the other hand, a compelling story emerges from a review of the eleven cases filed under NAALC to date. The story is characterized by details of working conditions in the maquiladora sector that read like a tragic 18th century "penny dreadful" novel. It is characterized by details of the extraordinary courage of workers in the face of some the worst physical and economic intimidation imaginable. It is also characterized by the cooperative work of unions in the three countries challenging some of the worst excesses of the NAFTA.

 

Review of the Assessments of NAALC

 

Early criticisms of NAALC were mixed in assessments as to its effectiveness. Earl Brown, Jr., counsel for the International Brotherhood of Teamsters, one of the major opponents of the FTA and NAFTA in the United States, and at the same time, a union that is also one of the most consistent complainants under NAALC, has offered this early comment on the legislation:

 

"Certainly, the side agreement creates no labour courts with private party access and direct remedies. Rather, it defines a public dispute resolution process with a heavy reliance on independent experts. Like all international efforts, NAALC's effectiveness will depend on the priorities assigned to labour rights by the three governments that control the NAALC process. Yet NAALC puts into play public commitments and processes that cannot be avoided and that can be publicly galvanized to pressure the parties to improve their labour law enforcement."

 

The most strongly worded criticism of the NAALC comes from Professors R. Cowie and J.D. French in an article entitled "NAFTA's Labour Side Accord: A Textual Analysis".

 

"A close examination of the accord's provisions reveals the anti-social and anti-democratic nature of the economic model underlining trade integration in North America. The side deal is devoid of any provision of mechanisms that would serve even to maintain, much less improve, labour rights or standards in any of the three countries. Not only is it lacking in social content, but the structure of the accord &endash; when placed in the context of the global economy &endash; offers no guarantees against the weakening of social legislation in all three countries."

 

The authors describe the petition mechanisms as " .... inaccessible and tortuously complex".

 

Professors Adam and Singh offer an interesting analysis. They state:

 

"In fact, the record to date is mixed. On the negative side of the ledger, none of the dismissed workers have regained their jobs (referring here to the first four cases). Despite that failure, the accord has had a more beneficial effect than its initial critics would have imagined".

 

They go on to note that the U.S. NAO has adopted a liberal view of their mandate. They have granted review in all of the first four cases filed, favouring an expansive interpretation of NAALC. They note that critics were pleased that both the American and Mexican NAOs agreed readily to review cases regarding non-sanctionable issues, such as freedom of association and the right to organize and bargain collectively. While the NAOs do not act in an adjudicative capacity, the fact that they are obligated to make public reports, complete with their findings and recommendations, requires these agencies to make judgments on whether or not employers are violating the labour side agreements. In their words:

 

"These judgments are, broadly speaking, adjudicative in nature and can, at least, imply culpability while the negotiations resulting from ministerial consultation are obviously inadequate they do set in motion pressures for government and companies to change the offending behaviour. There is some evidence that this process is beginning to have a positive effect. The authors note that some multinational companies have apparently made compliance with Mexican law a higher priority in order to avoid the possibility of being linked with a complaint under the side accord. Like the international labour organization, the NAALC institution relies on moral persuasion and embarrassing publicity to persuade labour rights violators to change their conduct. It creates a forum where industrial relations parties are obligated to explain their actions and practices in light of principles to which they have committed themselves." (page 91)

 

The most interesting thesis advanced by these critics of NAALC is that the logic of strong compliance procedures is not as compelling as it seems on the surface: They state:

 

"A comparative analysis of labour policies in the liberal democracies reveals that the legal codification of labour principles and strong enforcement procedures do not necessarily lead to strict compliance." (page 93)

 

They note that the U.S. legislation sets up an independent agency with strong enforcement powers. However, that has not been successful in producing the desired behaviour. In the past several decades, employers in the U.S. in large numbers have disregarded both the letter and the spirit of the law.

 

The authors then contrast that situation to British labour policy, which throughout most of this century has neither had statutorily defined labour rights, nor an independent agency armed with strong sanctions. They note that successive governments fostered voluntary compliance with a policy strongly supporting collective bargaining so successfully that in the 25 years after World War II nearly three-quarters of the British workers were covered by collective agreements. The authors conclude by saying:

 

"Despite the skepticism of the critics, the North American agreement on labour cooperation and the institution that it has spawned have had some modest successes in labour favour. Although the agreement contains procedures that are far from an ideal that one might imagine, nevertheless they do have the capacity to move the struggle for labour rights forward. Each of the three nations has formally committed itself to follow policies that will result in the effective attainment of a robust list of labour rights. It is now up to organized labour and its allies to hold those nations to their word by using the accord to the fullest extend possible." (page 94)

 

Another critic of the agreement, Steven Herzenberg, a member of the U.S. negotiating team for NAALC and the executive director of the Key Stone Research Centre in Harrisburg, Pennsylvania, advocates a fresh look at NAALC by unions. He suggests that the three instruments set out in NAALC: ad hoc, independent, tri-national expert committees, cooperative programmes amongst the three governments, and a dispute settlement procedure be used to improve labour rights and raise labour standards, both directly and by promoting a shift to a development strategy consistent with their elevation and enforcement.

 

He goes so far as to advocate a somewhat utopian view, an approach that would require substantial supranational development funds to finance investment and infrastructure, education, and skills in poor and depressed regions, thereby reducing income disparities within and between the three countries.

 

The Purists and the Sell-Outs

 

One assessment of the arguments in favour of a total boycott of NAFTA and NAALC, referred to as the purist position, and the arguments in favour of seeking strong meaningful labour clauses in the trade agreement, referred to as the sell-out position (or, more kindly, the revisionist position), is contained in a paper published in October of 1997 by Professor Marjorie Cohen: "What to do About Globalization".

 

The purist position is similar to that taken by the British Columbia government in refusing to recognize NAALC. It insists that there must be enforceable core ILO standards in any trade agreement. It is based on the belief that the Canadian union movement has a much greater ability to influence government and make changes, and to achieve those core ILO standards, than the U.S. or Mexican union movement.

 

My own position is that vigorous efforts must be directed towards obtaining core ILO standards contained within the NAFTA text, with effective, and inexpensive, enforcement techniques.

 

I should say that my initial position on the debate favoured the purist position more closely. However, after discussing the issue with many labour lawyers, trade unionists, and academics from the three countries over the past several years, and after reviewing all of the NAALC complaints to date, I have come to the view that there is merit in the utilization of NAALC for limited purposes. These purposes include the publicizing of the working conditions in Canada that fall short of generally accepted labour standards. The objectives also include the publicizing of the activities of Canadian and American corporations operating in the maquiladora zone.

 

There is some limited evidence to suggest that this kind of publicity does bring about some improvement in working conditions. I stress that the evidence is limited both in kind and in duration &endash; NAALC has only been in effect for a little over four years.

 

There is evidence that a number of unions in both Canada and the United States, which were initially absolutely opposed to any involvement whatsoever with NAALC, are now beginning to test its limits, and assess whether there are any advantages to attempting to utilize its provisions.

 

In fact, the economic and health conditions under which most Mexican workers are employed in the maquiladora zone are so abject, as is evidenced by a review of the various cases filed on their behalf under NAALC, that it seems elitist to reject the revisionist approach, and refuse to utilize NAALC because it is an imperfect instrument.

 

One of the most able and prolific commentators on the issue of NAALC is Professor Ian Robinson from Reed College in Portland, Oregon. In a paper delivered in 1996, he speculated that four objectives might be achieved through the use of NAALC dispute resolution mechanism. The four objectives are:

 

(1) It can be used to highlight particular cases where governments fail to enforce their labour laws and regulations. In some cases, it will embarrass them to do more and better.

(2) Where governments do alter their behaviour, their failure can be added to the growing body of evidence demonstrating the inadequacies of NAALC. This detailed documentation may be useful in persuading governments to include core standards that are readily enforceable.

(3) It provides a forum for the articulation and legitamization of principles of antithetical to the neo-liberal model of international economic integration. It can be used to attack the hegemony of the claim that there is no reasonable alternative to the neo-liberal model.

(4) The dispute process is useful insofar as it promotes the spirit and practice of international solidarity among the labour movements of the NAFTA countries. NAFTA does promote unprecedented levels of exchange amongst workers and activists in these labour movements at all levels.

 

The position of the CLC is expressed in a letter dated December 4, 1997 to the Minister of Labour as follows:

 

"To apply the 'social clause' proposal of the International Confederation of Free Trade Unions (ICFTU), NAFTA should incorporate the eleven labour principles currently contained in the NAALC into the core text of the trade agreement itself and, the contracting party should agree to take steps to ensure the observance of these labour standards. NAFTA should establish an advisory committee to work with the ILO to provide remedies for workers whose rights are repeatedly violated." (page 5)

 

The following twelve recommendations from the Canadian Association of Labour Lawyers address the major problems faced by trade unions in dealing with NAALC:

 

"(1) The eleven Labour Principles set out in Annex 1 of the NAALC should become minimum obligations rather than merely unenforceable objectives, and should be part of the NAFTA itself.

(2) The division of the Labour Principles into three tiers, with the lowest and least effective sanction reserved for freedom of association, should be abandoned. Access to the ECE should be extended to the rights to organize, bargain and strike, and access to arbitration should no longer be limited to matters involving health and safety, child labour and minimum wages; arbitration should be available to resolve matters involving all eleven Labour Principles. The entire process - from submission to arbitration &endash; should be shortened and simplified.

(3) Article 2 should be given effect so as to require signatory governments to ensure that their labour laws do in fact provide for high labour standards, e.g. secret ballot votes, fair elections, protection against discharge for organizing trade unions, unbiased and expeditious hearings before independent labour tribunals, etc.

(4) Restrictions limiting access to NAALC procedures should be removed, and inappropriate defences repealed. Specific reference is made to the exclusion of single cases from resolution by the ECE or an Arbitral Panel, even though such cases may involve flagrant breaches of the NAALC by the government involved.

(5) If domestic procedures prove to be non-existent or ineffectual, provision should be made for proceedings to be initiated before the ECE and Arbitral Panels by workers and trade unions who suffer violations of the NAALC. Access to an effective remedy should not be capable of being barred by the very government or by the transnational corporation which offends the NAALC.

(6) The NAALC should be amended to require appropriate action in cases giving rise to complaints, as well as corrective action to prevent future violations.

(7) The thresholds for initiation of procedures by Canada under Annex 46 (Article 4(c)) should be repealed.

(8) Funding for the work of NAALC agencies &endash; and in particular the Canadian NAO &endash; should be increased. In this regard, it should be noted that, in CALL's view, the Canadian NAO has been well served by capable administrators, including notably its Secretary, Ms. May Morpaw.

(9) Funding should be provided for workers and independent unions to initiate and participate in proceedings and to engage in co-operative activities under the NAALC. Adequate funding in these areas is essential to an effective co-operative program.

(10) Remedies for non-compliance with the NAALC should be expanded, and sanctions should attach both to offending governments and to those corporate entities who have benefitted from their failure to enforce domestic labour legislation in violation of NAALC commitments. Remedies/sanctions should be applied without penalizing the workers who are victims of NAALC violations.

(11) In order to further genuine co-operative activities under the NAALC, efforts should be made to enhance the participation of workers and independent trade unions, and steps should be taken, including funding, to ensure the participation of independent workers' organizations, in seminars, sessions and other programs and proceedings under the NAALC. Innovative co-operative initiatives, such as the development of corporate codes of conduct and fair trade labelling of products, should be explored and developed. The amelioration of the plight of migrant workers should be a priority.

(12) A fund should be established in every jurisdiction covered by the NAALC to compensate workers disadvantaged by NAFTA, and a regional development fund should be established to facilitate achievement of high labour standards in those jurisdictions where resources are needed."

 

 

5. RESOURCES

 

Websites and E-Mail Addresses

 

(1)International labour organization publications, International Labour Office: http://www.ilo.org.

An invaluable source of information on ILO issues. Provides access to international labour standards, as well as a host of ILO publications including their World Labour Report.

 

(2) Human Resources Development Canada, Labour Branch: http://labour-travail.hrdc-drhc.gc.ca/.

This is an excellent source of material on the text of the various free trade agreements, including NAFTA and the Canada-Chile Agreement on Labour Cooperation.

 

(3) Human Resources Development Canada: http://www.hrdc-drhc.gc.ca.

A helpful website for information on federal government labour programs and services.

 

(4) National Council of Welfare: ncw@magi.com.

All the most recent statistics on poverty in Canada, including interesting breakdowns, for example, on poverty amongst women, and amongst immigrants, two of the groups experiencing the job loss from NAFTA most dramatically.

 

(5) Office of the North American Agreement on Labour Cooperation has an excellent and complete bibliography available on virtually all materials published in Canada and the U.S. on the NAALC issue. It can be obtained from May Morpaw, Director (Telephone: 819-994-6231; Fax: 819-953-8494). The bibliography is updated periodically; its most recent update was May 28, 1998.

 

(6) K. Middlebrook and C. Remirez, "Protecting Workers' Rights in Mexico: Local Conciliati