[CTC] Unions lay out NAFTA labor chapter priorities in wake of Guatemala ruling

[Arthur Stamoulis]

Daily News

Unions lay out NAFTA labor chapter priorities in wake of Guatemala ruling
June 28, 2017
Unions and groups that support upgrading and defending the rights of migrant workers panned the current labor agreement between the three NAFTA countries while laying out their vision of what a labor chapter should look like in a revised NAFTA agreement, at a June 28 hearing on the renegotiation of the trade deal.
 
Witnesses testifying about labor obligations that could be negotiated into a redone NAFTA pointed to the recent decision <https://insidetrade.com/node/159326> in a labor dispute brought by the U.S. against Guatemala under the CAFTA-DR to argue that a new labor chapter in NAFTA must not merely mirror language used in past agreements.
 
The U.S. did not succeed in proving Guatemala violated its labor obligations under that free trade agreement because it could not prove that Guatemala's failure to enforce its labor laws was affecting trade.
 
Witnesses from the AFL-CIO, International Brotherhood of Teamsters, International Association of Machinists and Aerospace Workers, and groups representing migrant workers all called for ensuring that a requirement to prove failure to uphold labor standards actually affected trade -- in order to prove a violation of the labor chapter -- not be included in a renegotiated NAFTA. A labor agreement signed outside of NAFTA between the U.S., Mexico, and Canada contains language similar to that requirement.
 
“Indeed, there’s no clearer proof about the ineffectiveness of the current language than the final report of the Guatemala panel that was just released,” said Owen Herrnstadt, chief of staff and director of trade and globalization at the Machinists.
 
“This is the opportunity to get it right,” he said. “The argument that labor standards do impact trade, we thought, had already been resolved going way back to 1993 when labor standards were adopted at least in the side agreement of NAFTA. We see no reason to carry on for a torturous discussion about what this constitutes, and those that have read the Guatemala report in numerous pages that back and forth with respect to it.”
 
Herrnstadt also said there should be no requirement that labor violations be sustained or reoccurring. He argued that standards results in dispute settlement proceedings taking far too long to complete, noting that the Guatemala case took roughly nine years to conclude.
 
Labor standards put in NAFTA should not be modeled on those found in the Trans-Pacific Partnership labor chapter, said Thea Lee, former deputy chief of staff at the AFL-CIO. That view was shared by Herrnstadt and Michael Dolan, legislative representative for the Teamsters.
 
Those three witnesses associated their remarks with more comprehensive comments submitted by the AFL-CIO <https://insidetrade.com/node/159107> earlier this month.
 
Elizabeth Mauldin, policy director at Centro de los Derechos del Migrante, said if a labor chapter in a revised NAFTA contains a requirement that labor chapter violations may only be found if the violation “affects trade,” the U.S. must push to define that term as broadly as possible.
 
According to the panel report in the Guatemala dispute, Guatemala was pushing for a “relatively narrow interpretation of the phrase,” whereas the United States was seeking a “relatively broad interpretation of that phrase."
 
“Based on what we’ve seen under CAFTA in the Guatemala case, the trade-related standard that we’ve seen develop over the past few years has created a barrier to accessing dispute resolution which really renders feckless the labor action plans that have been created and all of the efforts to promote labor rights, particularly for migrant workers."
 
“So we’d like to see the trade-related standard interpreted in the most broad fashion possible,” Mauldin said.
 
Mauldin and the three other witnesses also called for reducing obstacles to filing complaints and language that clearly aligns a NAFTA labor chapter with core International Labor Organization conventions.
 
Herrnstadt added that NAFTA members must adopt and maintain the obligations laid out in a new labor chapter before the new NAFTA enters into force, a requirement that some Democrats have said their support for the agreement rests on but a condition not endorsed by U.S. Trade Representative Robert Lighthizer. The State Department, Herrnstadt added, has documented violations in Mexico of core ILO conventions.
 
NAFTA in its original form does not include a labor chapter. Instead, Canada, Mexico and the U.S. in 1993 signed the North American Agreement on Labor Cooperation (NAALC). The NAALC obligates each member to enforce its labor laws and it considers such laws to cover 11 principles. It contains a limited dispute resolution mechanism that may result in the withdrawal of trade concessions.
 
Mauldin and Rachel Micah-Jones, chair of the International Labor Recruitment Working Group, said a NAFTA labor chapter should at a minimum include those 11 principles. Mauldin added that “ideally all of those would lead to the dispute resolution mechanism, currently only three of them do. We see that as major barrier.”
 
“We’ve seen in the TPA and drafts of the TPP a weakening of those [11 principles] from the shortening of the list.”
 
The 11 principles NAALC defines “labor laws” to cover are: freedom of association and protection of the right to organize; the right to bargain collectively; the right to strike; prohibition of forced labor; labor protections for children and young persons; minimum employment standards, such as minimum wages and overtime pay, covering wage earners, including those not covered by collective agreements; elimination of employment discrimination on the basis of race, religion, age, sex, or other grounds as determined by each country's domestic laws; equal pay for men and women; prevention of occupational injuries and illnesses; compensation in cases of occupational injuries and illnesses; and protection of migrant workers.
 
But dispute settlement proceedings are limited in that they may occur only when there is a failure by a party to effectively enforce its occupational safety and health, child labor or minimum wage technical standards. Additionally, before formal dispute settlement proceedings kick off, parties must consult, and if consultations do not resolve the dispute, a party may request the establishment of an Evaluation Committee of Experts to issue a report on the issue.
 
That committee however, may not convene if the manner in question is determined by an independent expert to not be “trade-related.” A party that did not request the establishment of the committee may request an independent expert carry out that determination.
 
Further, if an arbitral panel is composed following the review of the ECE’s report and consultations between the disputing parties, the report of the panel must review whether “a persistent pattern of failure” to effectively enforce the three principles covered by NAALC dispute settlement was done “in a matter that trade-related,” among other issues.
 
NAALC defines “trade-related” as “related to a situation involving workplaces, firms, companies or sectors that produce goods or provide services: traded between the territories of the Parties; or that compete, in the territory of the Party whose labor law was the subject of ministerial consultations under Article 22, with goods or services produced or provided by persons of another Party.” -- Jack Caporal (jcaporal at iwpnews.com <mailto:jcaporal at iwpnews.com>)
 
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