Upcoming FTAs and Labor Rights
The United States has entered into FTAs with four countries recently: Colombia, Panama, Jordan and South Korea. In addition, the U.S. is in discussion with eight Pacific Rim countries to form the Trans-Pacific Strategic Economic Partnership, a multilateral free trade agreement that aims to further liberalize the economies of the Asia-Pacific region.
These agreements are not without their problems, however. An analysis of recently-signed and future FTAs shows that labor rights take a backseat in these agreements, despite the attempts of negotiators to include clauses on basic worker security and human rights.
The Labor Action Plan signed in April 2011, a key side agreement of the Colombia-US Free Trade Agreement, was not fully implemented when the Obama administration announced in April 2012 that the pact would take effect on May 15. Unsurprisingly, activists and labor groups were dismayed that the administration decided it would implement the agreement anyway.
The Action plan contains 37 points, mandating that Colombia outlaw many of its worst employment practices, and give workers the rights and protections to organize. The U.S. trade office promised that the plan “will lead to greatly enhanced labor rights in Colombia.” The country surely is in need for it. It remains the most dangerous country on earth for labor activists, with nearly 3,000 murdered since 1986, according to statistics compiled by Human Rights Watch. Very few of those killers were convicted. Illegal firings and death threats frequently preclude unions from forming in the first place.
Most observers agree that the Labor Action plan has pushed Colombia to improve worker conditions. In February 2012, for example, the country’s Labor Ministry announced a broad crackdown against worker cooperatives. These co-ops often provide temporary workers to farms and businesses looking for ways to avoid employing full-time workers that offer security and benefits. Members of worker co-ops are considered small-business owners and are therefore banned from joining unions, a basic right. “It’s been a huge surprise for Colombians because now the government is saying that unions are good,” the director of the National Labor School told a reporter.
However, these gains, important as they are have not been nearly enough to bring Colombia up to speed with the requirements of the Labor Action Plan. Indeed, declaring that the country has complied with the Labor Action Plan removes much of the leverage the United States has over Colombia to improve its workers’ conditions. Upon the Obama administration’s announcement, the leaders of Colombia’s two main labor confederations said that declaring the Labor Action Plan a success would lead to backtracking, and halt progress that has been made. According to the National Labor School, only 27 of the Labor Action Plan provisions have been even partially implemented, while nine have been completely ignored. Said Rep. Jim McGovern (D-Mass.): “The President’s decision was premature. This takes the pressure off the powers that be in Colombia from dealing with continued human rights violations against unionists.”
McGovern and four other US policymakers who are monitoring Colombian compliance with the Labor Action Plan penned a letter on April 10 outlining specific problems. The letter pointed out that banana workers are often forced to prove that they are not affiliated with any union before and after being hired. Worker co-ops, the lawmakers said, are simply being replaced by similar organizations under different names that continue to essentially act as temp agencies that provide cheap, non-union labor to Colombian businesses. The letter also stated that there has been almost no progress in legal cases involving trade unionists who have been threatened or murdered, perhaps the most worrisome aspect of Colombia’s terrible labor situation. “I understand the desire to make a big announcement while the president was in Colombia,” McGovern told GlobalPost. “But a better announcement would have been: ‘You have made some progress, but there is still a ways to go.’” It would have been a more accurate announcement, as well.
The United States-Jordan FTA was signed in October of 2000 and fully implemented in January of 2001. To support the efforts to improve workers’ rights in Jordan, the two countries fund an International Labor Organization Better Work program, which observes working conditions in garment factories and issue public reports. The project was launched in 2008, and began monitoring activities in Qualifying Industrial Zones (QIZs) factories in 2009. According to the nonpartisan Congressional Research Service in 2003, the agreement “breaks new ground by including multiple worker rights provisions in the body of a U.S. trade agreement, rather than as a side agreement, for the first time.”
Whatever the precedent set by the FTA, it is difficult to conclude that they have helped improve worker conditions in Jordan. A 2011 report by Human Rights Watch “documents abuses against domestic workers and the failure of Jordanian officials to hold employers and the agents who recruited the workers accountable. The report also criticizes Jordanian immigration and domestic work labor laws for facilitating abuse, such as confinement in the home and imposing fines for overstaying the legal residency period, even where the worker is not at fault.” “Jordan’s legal reforms aren’t worth the paper they’re written on if they don’t make a difference in the lives of migrant domestic workers,” said Christoph Wilcke, senior Middle East researcher at Human Rights Watch.
According to HRW: “Many of the 70,000 migrant domestic workers from Sri Lanka, Indonesia, and the Philippines now living in Jordan face the same abuses as migrant domestic workers elsewhere in the region. These include beatings, confiscation of passports, confinement to the house, insults, non-payment of salaries, and overlong working hours with no days off.” The reasons these abuses persist is the weak enforcement of existing legal rights and omissions and provisions in the law that facilitate abuse, the organizations said. These fall short of the standards set by a landmark international treaty to protect domestic workers’ rights adopted in June 2011.
Jordan voted for, but has not ratified, the ILO Convention on Domestic Work, which obliges governments to ensure decent working conditions and protection from violence for domestic workers, and mandates compliance with national laws protecting them. Jordanian law still permits an employer to restrict a domestic worker’s movements, forcing the worker to stay in the employer’s house. The law does not require allowing the worker to retain all of her documents, including passports and contracts. Jordan also does not allow domestic workers to change employers freely, even after the contract period has ended. Jordan imposes fines on those who are in Jordan without a valid residency permit, which only an employer can apply for, but often does not. Police detain domestic workers whose employers registered them as “escaped,” even when the worker had a valid residency permit.
Weak enforcement of existing rules means domestic workers sometimes forfeit rights, such as unpaid salaries, in exchange for the ability to return home. The Labor Ministry has only five inspectors for all domestic workers, but they have not exercised their authority to enter the homes to follow up claims of domestic worker abuse. A labor dispute committee for domestic workers follows no clear guidelines and takes months to issue non-binding recommendations for cases of complaints by domestic workers. Inspectors have not reported as violations of the law cases of overlong working hours – on average 16 hours per day among those workers interviewed for the report – or failing to grant a day off, let alone fined employers for what are widely reported practices.
The United States and Panama have signed a Free-Trade Agreement that is scheduled to go into effect in November, four years after originally being signed. According to a Congressional Research Service report in 2011, “An important aspect of the proposed U.S.-Panama FTA is that it adopts new standards for both the labor and environment chapters that reflect a 2007 bipartisan understanding as developed by congressional leadership and the USTR.” Both countries commit to adopt and maintain in law and practice the rights as stated in the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up and agree not to encourage trade and investment by weakening relevant domestic labor laws.
Whatever its importance, it is clear that the Panamanian labor situation leaves much to be desired. According to the Panama News, “A few dozen families hold economic power here and the current government has gone well out of its way to smash any truly independent labor activism. The last few years have seen a few small victories and several notable big defeats for organized labor, and that has exacerbated existing divisions.”
In the private sector, the 40-worker minimum for union formation prevents workers at many small and medium enterprises (including contractors and subcontractors) from establishing company-level unions, according to a 2011 report by the Department of Labor. Larger employers can also prevent their direct employees from organizing by subcontracting certain company functions to reduce their direct workforce to fewer than 40. When combined with workers at larger places whose workforces are fragmented through subcontracting, the number of workers whose right to form a union could be undermined by the 40-worker minimum is significant. Similar concerns are raised by the ACA 50-worker minimum to form a public sector association.
Violence against workers remains a point of concern. On July 2, 2010, some 4,500, mostly indigenous, union workers went on strike in the Bocas del Toro province at the Bocas Fruit Company, a Chiquita Brands subsidiary. Workers from nearby farms soon joined. The Panamanian government sent in at least 1,500 police and ill-trained border control guards to repress protestors. Although the government reports that two people were killed, some groups estimate that as many as 11 people died and more than 200 were injured; the National Front for the Defense of Economic and Social Rights (Frenadesco) said that, “following the clashes, corpses were found in rivers and farms.” Reports also indicate that anywhere from two to five children died due to tear-gas related respiratory problems, and that police detained some 350 civilians, including 157 students protesting at the University of Panama (UoP). Human Rights Watch called for a full probe into the violence.
The Trans Pacific Partnership (TPP), still in negotiations, now includes eight nations: Australia, Brunei, Chile, Japan, Malaysia, New Zealand, Peru, Singapore, Vietnam and the United States. Canada is also trying to get in on the action. The United States Trade Representative (USTR) has called it “an ambitious, 21st-century” agreement. If passed, it would be the biggest free trade agreement since NAFTA.
According to the AFL-CIO, “Although it is too early to tell whether the TPP will give working Americans a trade agreement they can believe in, some of the declarations and statements released…are a cause for concern. Regarding labor rights, the outline reads “TPP countries are discussing elements for a labor chapter that include commitments on labor rights protection and mechanisms to ensure cooperation, coordination, and dialogue on labor issues of mutual concern,” but fails to mention the International Labor Organization’s fundamental labor standards or even whether the labor provisions will be enforceable.
Vietnam is a particular point of concern. Writes the Congressional Research Service: “While it has made great strides in liberalizing its economy and has been granted WTO membership, criticism of its standards on labor rights, intellectual property protection, and corruption remains.” Continues the CRS: “Some members of Congress have sought the expansion of labor and environmental provisions in U.S. The existing TPP among the P-4 countries contain a labor memorandum of understanding (MOU) and an environmental cooperation agreement between the parties. These agreements pledge the parties to work together to promote sound labor and environmental practices, while respecting the right of parties to set, administer, and enforce their own labor and environmental laws. It commits the parties not to set or use labor or environmental laws or practices either for trade protectionist purposes nor to weaken such laws or practices to encourage trade and investment. This language is generally consistent with the language that the United States negotiated in its FTAs with Chile, Singapore, and Australia.” If those agreements are anything to go by, workers around the world have good reason to be concerned.