American Center for International Labor Solidarity/AFL-CIO Copyright © May 2003 by American Center for International Labor Solidarity

JJUSTICEUSTICE FFOROR AALLLL AA GuideGuide toto WorkerWorker RightsRights inin thethe GlobalGlobal EconomyEconomy

Printed in the United States of America

American Center for International Labor Solidarity 1925 K Street, NW Suite 300 Washington, DC 20006 www.solidaritycenter.org

The American Center for International Labor Solidarity, or the Solidarity Center, is a non-profit organization established to provide assistance to workers who are struggling to build democratic and independent trade unions around the world. It was established in 1997 through the consolidation of four regional AFL-CIO institutes. Working with unions, non- governmental organizations and other community partners, the Solidarity Center supports programs and projects to advance worker rights and promote broad-based, sustainable economic development around the world.

Cover design by Fingerhut, Powers, Smith & Associates, Inc. Photos courtesy of the International Labor Organization JUSTICEJUSTICE FORFOR ALLALL A Guide to Worker Rights in the Global Economy

American Center for International Labor Solidarity/AFL-CIO

May 2003

Funding provided by a grant from the National Endowment for Democracy

TABLE OF CONTENTS

Introduction The State of Worker Rights Today xiii

Chapter 1 Worker Rights Standards and Violation Checklist 1 ■ Freedom of Association (ILO Convention No. 87) 3 ■ Right to Organize and Bargain Collectively (ILO Convention 10 No. 98) ■ Forced Labor (ILO Conventions No. 29 and No. 105) 14 ■ Child Labor (ILO Conventions No. 138 and No. 182) 17 ■ Discrimination (Equality in Employment and Occupation) 23 (ILO Conventions No. 100 and No. 111) ■ Acceptable Conditions of Work (ILO Conventions No. 131, 38 No. 1, No. 95, No. 14, No. 106, No. 132 and No. 155) ■ Flexibility in Applying the Standards 41

Chapter 2 History of Worker Rights 43 ■ International Labor Organization (ILO) 45 ■ ILO World Commission on the Social Dimension of 47 Globalization ■ The Birth of the United Nations 47 ■ Worker Rights in the Era of Free Trade 50

Chapter 3 Worker Rights and Unilateral Trade Benefits 53 ■ Caribbean Basin Initiative (CBI/CBERA)–1983 55 ■ U.S. Generalized System of Preferences (GSP)–1984 56 Bangladesh 62 Belarus 62 Costa Rica 63 Swaziland 66 Thailand 67 Guatemala 68 El Salvador 71 Mauritania 72 Paraguay 72 Peru 73 Ukraine 74 ■ Impact of GSP 75 ■ European GSP–1995 76 ■ Overseas Private Investment Corporation (OPIC)–1985 77 ■ Impact of OPIC 79 ■ Omnibus Trade and Tariff Act–1988 80

iii ■ Andean Trade Preference Act–1991 81 ■ Tariff Act of 1930 (19 USC ¶1307)–2000 Modification 82

Chapter 4 Worker Rights and Regional Trade Pacts 85

■ Africa and the Middle East 87 ■ African Growth and Opportunity Act (AGOA) 87 Economic Community of West African States 91 (ECOWAS) Southern African Development Community (SADC) 92 U.S.-Jordan Free Trade Agreement 92 Other African Economic Organizations 94 Social Charters 94 ■ Americas 97 The North American Free Trade Agreement (NAFTA) 97 and the North American Agreement on Labor Cooperation (NAALC) Introducing the NAALC 97 Labor Principles and Obligations 98 Institutional Structure of the NAALC 99 - Commission for Labor Cooperation: Ministerial 99 Council and Secretariat - National Administrative Offices (NAOs) 99 - Evaluation Committees of Experts (ECEs) 100 - Arbitral Panels 100 Weaknesses and Overall Impact of NAFTA and 101 the NAALC NAALC Submissions and Cases: Overview 106 Cases Involving Alleged Worker Rights Violations 108 in Mexico - Honeywell and General Electric (U.S. NAO 108 Case Nos. 940001 and 940002) - Sony (U.S. NAO Case No. 940003) 110 - Pesca Union (U.S. NAO Case No. 9601) 110 - Maxi-Switch (U.S. NAO Case No. 9602) 112 - Pregnancy Testing in the Maquiladora 112 (U.S. NAO Case No. 9701) - Han Young (U.S. NAO Case No. 9702) 113 - Echlin/ITAPSA (U.S. NAO Case No. 9703; 114 Canada NAO Case No. 98-1) - Aerovías de Mexico Flight Attendants 115 (U.S. NAO Case No. 9801)

iv - TAESA (U.S. NAO Case No. 9901) 115 - Autotrim/Breed Technologies (U.S. NAO Case 116 No. 2000-01) - Duro Bag Manufacturing Corporation 118 (U.S. NAO Case No. 2001-01) Cases Involving Alleged Worker Rights Violations 119 in the United States - Sprint (Mexico NAO Case No. 9501) 119 - Solec, Inc. (Mexico NAO Case No. 9801) 120 - Washington State Apple Industry (Mexico NAO 121 Case No. 9802) - DeCoster Egg Farm (Mexico NAO Case No. 122 9803) - Labor Department/INS Memorandum of 122 Understanding (Mexico NAO Case No. 9804; Canada NAO Case No. 98-2) - Labor Policy Association and Section 8(a)(2) of 123 the National Labor Relations Act (Canada NAO Case No. 99-1) - New York State Workers’ Compensation 125 System (Mexico NAO Case No. 2001-1) Cases Involving Alleged Worker Rights Violations 126 in Canada - McDonald’s (U.S. NAO Case No. 9803) 126 - Canadian Rural Letter Carriers (U.S. NAO 127 Case No. 9804) Mercosur and the Social-Labor Declaration 128 Sub-Group 11 128 Protocol of Ouro Preto 129 Working Group 10 129 Economic and Social Consultative Forum 131 Social-Labor Declaration of Mercosur 132 Social-Labor Commission 133 Impact of Mercosur 133 Community of Andean Nations (CAN) 135 The Canada-Chile Free Trade Agreement on Labor 138 Cooperation (CCALC) The Canada-Costa Rica Free Trade Agreement on Labor 141 Cooperation (CCRALC) The Caribbean Community (CARICOM) and the Charter 141 of Civil Society The CARICOM Declaration of Labor and Industrial 143 Relations Principles

v NAFTA Parity 144 Comparison of Worker Rights Measures in the Americas 144 Tripartism 144 Complaints and Oversight 145 Sanctions 145 Free Trade Area of the Americas (FTAA) 146 ■ Asia 148 Asia-Pacific Economic Cooperation (APEC) 148 U.S.-Cambodia Bilateral Textile Trade Agreement 152 ■ Europe 153 Maastricht Treaty–1992 156 Treaty of Amsterdam–1999 157 Treaty of Nice–2000 158 Charter of Fundamental Rights of the European 160 Union–2000 Stability Pact for Southeastern Europe–1999 161 Working Table I: Democratization and 162 Human Rights Working Table II: Economic Reconstruction, 162 Development and Cooperation Working Table III: Strengthening of Internal and 162 External Security Initiative for Social Cohesion–2000 163 ■ New Free Trade Agreements with Chile and Singapore 165

Chapter 5 Worker Rights and Global Trade Pacts 171 ■ World Trade Organization (WTO) 173 ■ Organization for Economic Cooperation and Development 176 (OECD) ■ Multifiber Arrangement (MFA) 176

Chapter 6 Worker Rights and International 181 Financial Institutions ■ History of the World Bank and the International 183 Monetary Fund ■ Structure and Operations of the World Bank Group 183 The International Bank for Reconstruction and 184 Development (IBRD) The International Development Association (IDA) 184 The International Finance Corporation (IFC) 184 The Multilateral Investment Guarantee Agency (MIGA) 184

vi The International Centre for Settlement of Investment 184 Disputes (ICSID) ■ Organization and Management of the World Bank 184 Board of Governors 185 Executive Directors 185 World Bank President 185 ■ Development of the IMF’s Mission 186 ■ Structure and Management of the IMF 186 Board of Governors 186 Executive Board/Board of Directors 187 Interim Committee 187 Development Committee 187 Managing Director 187 ■ Lending Practices of the World Bank and the IMF 188 ■ International Controversy over IFIs 188 Lack of Transparency 190 Power and Jurisdictional Imbalances 190 Environmental Concerns 191 ■ Impact of IFI Policies on Workers, Democratization and 193 Economic Development Chapter 7 Strategies for Promoting Corporate Accountability 201 ■ Corporate Codes of Conduct 203 Multilateral Government-Initiated Codes 204 UN Code 204 OECD Code 204 ILO Code 206 Privately Drawn Up “Sign-Up” Codes of Conduct 206 Sullivan Principles 206 MacBride Principles 207 Slepak and Miller Principles 207 Global Sullivan Principles of Social Responsibility 207 Maquiladora Code 209 ICFTU/ITS Basic Code of Conduct Covering 209 Labor Practices Internal Corporate Codes of Conduct 211 Levi Strauss & Company: Terms of Engagement 211 and Guidelines Reebok’s Worker Rights Code 212 The New Generation of External “Stakeholder” Codes 212 Ethical Trading Initiative (ETI) 213

vii Apparel Industry Partnership (AIP)/Fair Labor 213 Association (FLA) Clean Clothes Campaign (CCC)/Fair Wear 213 Foundation (FWF) Social Accountability 8000 (SA8000) 213 United Students Against Sweatshops (USAS) 214 Worker Rights Consortium (WRC) 215 Worldwide Responsible Apparel Production 218 (WRAP) Ethical Trading Action Group (ETAG) 218 Developing Country (Southern) Code Initiatives 218 Government Initiatives 219 Global Reporting Initiative (GRI) 220 Mandatory Sustainability Reporting for French 221 Companies Impact of Corporate Codes and Trade Union/NGO 221 Cooperation ■ Other Strategies 228 Strategic Campaigns 228 Role of Global Union Federations (GUFs) 231 International Campaigns 231 Company Councils 232 Framework Agreements 232 European and Global Works Councils 234 GUFs and the ILO 235 Global Anti-Sweatshop Coalition 236 UN Global Compact 236 Shareholder Initiatives 237 Emerging Market Investment Guidelines 239 AFL-CIO Investment Product Review (IPR) 241 Social Labeling 241 Rugmark 241 Foulball 242 Local Government Sanctions and Corporate 242 Response

Chapter 8 Pursuing Worker Rights in the New Millennium 247

Appendix A Worker Rights Violation Report Form 253

Appendix B ILO Convention Summaries 259

viii Appendix C ILO Declaration on Fundamental Principles 269 and Rights at Work

Appendix D How to File an ILO Complaint 273

Appendix E Glossary of ILO Terms 281

Appendix F Glossary of Abbreviations and Acronyms 295

Appendix G Directory of ILO Offices 305

Appendix H Directory of ICFTU Offices 313

Appendix I Directory of Global Union Federation 317 Offices

Bibliography 331

ix ACKNOWLEDGMENTS

The Solidarity Center wishes to thank co-writers Lance Compa and Fay Lyle. Lance Compa, of Cornell University's School of Industrial and Labor Relations, was an independent consultant on this project. Fay Lyle, of the Solidarity Center, also wrote and edited the original version of this manual in 1997.

We also would like to thank Marc Bayard for serving as project manager and the staff of the Office of Program Reporting and Evaluation for assisting in the editing process, particularly Joan Welsh for doing the final editing. Finally, we express our gratitude to a wonderful team of staff researchers, as well as to all staff members of the AFL-CIO, the George Meany Center for Labor Studies and the Solidarity Center who reviewed content and made helpful suggestions. Introduction

The State of Worker Rights Today Global economic development may produce immense wealth, but it does not guarantee that the wealth will be equitably distributed or that democracies will thrive. The State of Worker Rights Today

In the push for a global economy, ensuring human and worker rights is a major challenge. The race toward a global economy is outpacing the political development of global democracy. Globalization puts more and more pressure on democratic institutions and practices, thwarting democratic development, political stability and economic gains. Global economic development may produce immense wealth, but it does not guarantee that the wealth will be equitably distributed or that democracies will thrive. Strong trade unions and democratic governments that protect worker rights are necessary to achieve equity and lasting stability. Without these institutions, the workers who produce the wealth are left behind. Defenders of worker rights need accurate, timely information that they can use in their fight for global worker justice. Justice for All: A Guide to Worker Rights in the Global Economy provides that information.

Worker Rights in Jeopardy

Democratic unions in developing or transitional countries must confront not only government repression, weak laws and poor enforcement, but also international forces that erect barriers to their growth, impede their support of the rule of law and democratic development and threaten their very existence. Often, they cannot participate as partners in economic integration because they have no voice, through democratic processes, to shape national and international government policies. Even when unions succeed in defending their rights, companies may respond by simply closing down and moving elsewhere—generally to countries that turn a blind eye toward human and worker rights violations.

Democracy can flourish only where basic human and trade union rights are respected. In 1998, the International Labor Organization (ILO) adopted the Declaration on Fund- amental Principles and Rights at Work. Through this groundbreaking document, the international community of governments, employers and trade unions jointly reaffirmed that worker rights, as fundamental human rights, must be respected—not only as a basic end in and of themselves but as an important means of ensuring good governance and achieving equitable economic development.

Despite increasing international validation and modest progress toward improving respect for worker rights in some countries, however, worker rights violations are multiplying worldwide. The 2002 Annual Survey on Violations of Trade Union Rights by the International Confederation of Free Trade Unions (ICFTU) points out serious worker rights violations in Korea, Venezuela, Costa Rica, Swaziland, Uganda, Zimbabwe and the Gulf States. The ICFTU also documents widespread harassment of trade unionists. Charges range from employers’ refusal to recognize or bargain with unions to dismissals, imprisonment and even murder. The March 2003 Report of the ILO Committee on Freedom of Association highlights the need for urgent action to counter disturbing worker rights violations in Belarus, China, Colombia, Ethiopia, Guatemala and Venezuela.

xiii Introduction

Although trade union repression has been more violent in developing countries, employers in the industrialized countries also have also tried to undermine unions. Canada still restricts organizing and bargaining rights for public employees, Australia continues to engage in systematic strikebreaking and union busting has intensified in the United States.

The trafficking of as many as four million men, women and children each year has affected almost every country and remains one of the most serious human rights problems worldwide. Women and children from Eastern Europe, Central Asia, the former Soviet Union and Southeast Asia have been abducted or trapped through misrepresentation, fraud and coercion. After being transported all over the world, they are forced to work in substandard conditions in factories, as domestic or farm laborers and as sexual slaves or prostitutes.

In export processing zones (EPZs) around the world, workers are restrained from joining unions, exercising their right to strike and bargaining collectively. EPZs are segregated industrial zones or sectors with special incentives to attract foreign investment. In 1975, 75 EPZs were operating in 29 countries. Today, 116 countries house 3,000 EPZs employing more than 67 million workers—30 million in China alone—the vast majority of whom are young, mostly poor women.

More disturbing even than the explosion of EPZs, systematic government interference is expanding and legal barriers to democratic trade union activity are multiplying. Governments' anti-union tactics include dissolving unions, denying unions legal recognition, seizing union property, violently repressing strikes and marches and imposing legal restrictions that threaten to legislate many unions out of existence.

All over the world, worker rights trends are alarmingly similar.

Africa

Many African governments are openly hostile toward trade unions, using brutality, legislative measures or both to control or eliminate them. Governments have removed demo- cratically elected trade union leaders from office, tried to provoke splits in national trade union centers, denied registration to new trade unions and occupied union headquarters. In some countries, governments or employers create unrepresentative “worker organizations” to undermine existing trade unions.

In Togo, the lack of tolerance for political dissent has created challenges for trade unionists. In Uganda, the government maintains firm control over unions, while in Libya, they are banned altogether. In Senegal, the constitution was amended to state that strike action “should not jeopardize companies.” In Swaziland, the lengthy trials of trade unionists were perceived as government efforts to harass and intimidate unions. In Malawi and Morocco, trade union activists were fired. In Chad and the Central African Republic, trade unionists

xiv The State of Worker Rights Today were arrested. In Zimbabwe, union leaders have been constantly threatened, harassed, and intimidated, and three workers were fatally shot while exercising their right to strike. Perpetrators of these crimes generally receive only a slap on the wrist or are not pun- ished at all.

Americas

Latin America is the most dangerous place in the world for trade unionists. Harassment, dismissals, attacks, abduction and murder are still common. In 2002, 184 trade unionists were murdered in Colombia alone—an average of one murder every other day. By February 2003, nine more were dead, and others were forced into hiding.

Throughout Latin America, employer-controlled unions are undermining democratic trade unionism. Collective bargaining agreements are frequently disregarded and unilaterally broken. Workers who attempt to defend their rights are routinely dismissed and often cannot obtain justice through the legal system. Freedom of association is virtually nonexistent in Guatemala: employers refuse to recognize unions, intimidate union members and threaten to close down and relocate if the workers cause trouble. Costa Rica’s long-term practice of supplanting legitimate trade unions with employer- controlled solidarismo organizations allows private employers to routinely dismiss union activists.

In Central American EPZs, workers have virtually no rights. They can be blacklisted as agi- tators simply for requesting improvements in their working conditions, which are generally miserable. The same is true in the Mexican maquiladoras, where employers install “protection” unions that shield owners from having to deal with legitimate, representative unions that could bargain for higher wages.

Economic crises like the recent one in Argentina have left increased unemployment and poverty in their wake. More than 95 percent of the new jobs created have been in the informal economy, where half of urban workers eke out a meager living. Urban unemployment in Latin America and the Caribbean has increased to 17 million, yielding an average unemployment rate of 9.2 percent, the highest registered in the region in 22 years. The ILO’s 2002 Labor Overview notes that two-thirds of the active population in Latin America— including 80 percent of women—is ineligible for social security in the form of either health care or pensions.

The strikes and protests that such dislocation triggers are often met with fierce opposition. In Bolivia, police have repressed workers who set up roadblocks to protest government policies. Venezuela’s President Hugo Chavez, who has stepped up his efforts to bring unions under control, has refused to recognize newly elected union leadership and has blocked the collective bargaining process, particularly in the public sector.

xv Introduction

In the United States, anti-union firings, harassment and other reprisals have increased dramatically in recent years. According to the 2000 Human Rights Watch special report Unfair Advantage: Workers’ Freedom of Association in the United States Under International Human Rights Standards, U.S. workers lack the fundamental rights to organize, bargain, and strike. Employers intimidate and prevent workers from organizing and routinely delay bargaining for years. Striking workers are often simply replaced—permanently. Penalties are frequently insufficient to act as a deterrent. Millions of U.S. workers fall outside legal protection altogether.

Asia

All over the Asia and Pacific region, workers are severely exploited, and workplace conditions are miserable. In North Korea, the failure to fulfill one’s task is punishable by death. Workers’ right to organize and bargain collectively is frequently violated. Employers attempt to replace collective contracts with individual ones in an effort to break up unions. Strikebreaking and union busting are routine, particularly in Hong Kong, Fiji and Pakistan. In the EPZs of the Philippines and Sri Lanka, employers have actually shut down factories to stop workers from organizing.

The ILO, for the first time in its history, called on its members to impose sanctions on Burma in 2000. Nevertheless, according to the U.S. Department of State’s 2002 Country Report on Human Rights Practices, the Burmese government has continued to restrict worker rights, ban unions and use forced labor, including child labor, which has been outlawed. Recently, the American Apparel and Footwear Association, a trade group representing U.S. footwear and clothing wholesalers, announced that it would lobby for an immediate and total ban on U.S. textiles, apparel and footwear imports from Burma.

Trade unionists are harassed, intimidated, violently repressed and even assassinated. Iqbal Majumder, a trade union leader and pioneer of the Bangladeshi labor movement, was shot and killed on August 2, 2001. Thugs have been hired to coerce or attack striking workers in China and South Korea. In Indonesia, hired attackers killed two striking workers and seriously injured ten others in 2001. In Turkey, members of public sector union KESK were repeatedly attacked, their homes and offices were raided and they were placed under arrest.

Governments in China, Laos, North Korea and Vietnam prohibit independent trade unions, and no union activity is permitted in the Maldives. Any pro-democratic activity in Burma results in imprisonment, so trade unions can operate only in secret. In Sri Lanka, the government’s Board of Investment has set up company-controlled “workers’ councils” and dismissed workers who try to form real unions. In Fiji, managers of government-owned airports have threatened to fire workers who refuse to sign individual work contracts.

xvi The State of Worker Rights Today

The number of detentions and prison sentences reported in the ICFTU Annual Survey is highest in this region. In South Korea, more than 200 trade union leaders have been imprisoned and/or fined heavily. In China, where all attempts to form independent unions have been repressed, union organizers face prison terms ranging from 20 years to life. Many have had their sentences extended arbitrarily. Prison conditions are often deplorable, and torture of trade unionists is all too common.

Europe

In the countries of Central and Eastern Europe and the former Soviet Union, respect for basic worker rights is eroding. Massive economic dislocation, the decline of the rule of law, the political use of ethnic and nationality differences and governments’ failure to make a complete transition to democracy have led to systematic practices that reinforce worker rights violations. Harassment, threats and even violence against trade union leaders and members are part of the political and industrial relations climate.

Many governments have increasingly excluded trade unions at the national level, and genuine government-labor-business negotiation mechanisms have generally not yet developed. Governments also have increased legislative restrictions on trade union operations and on basic union rights such as collective bargaining. This trend is often exacerbated by policies of the international financial institutions; in Bosnia- Herzegovina, for example, the World Bank actually promoted the introduction of anti- union labor legislation. The right to strike is often restricted, and strike procedures are lengthy and cumbersome. In the industrialized nations of Western Europe, anti-union legislation and court decisions increasingly infringe on worker rights.

According to the ILO, Belarus is the worst violator of worker and union rights in the region. Under President Alexander Lukashenko’s rule by decree, union activities are subject to surveillance, excessive restrictions on the right to strike, a union registration process that is left to employer or government whim and interference with branch union elections. The system for union dues check-off was banned in 2001.

Throughout the region, unemployment has increased as privatization, often undertaken without trade union consultation, has shrunk the public sector. As a result, the informal economy has risen sharply, particularly in Serbia and Montenegro, Moldova and Ukraine. Although some governments have improved their labor laws, the pressure to make markets appealing to foreign investors has weakened the collective bargaining process and increased anti-union discrimination. In some cases, labor code amendments have only eroded worker rights. In Russia, a new labor code promulgated in 2001 has weakened the role of independent unions and left all unions vulnerable to management domination. A new labor law in Ukraine violates ILO conventions and is the subject of a complaint to the ILO by the Free Trade Union Confederation of Ukraine.

xvii Introduction

Employers are taking full advantage of the chaotic legal and enforcement climate. They often ignore trade unions, collective bargaining agreements and legal decisions that favor unions. They use temporary work contracts as an effective means of discouraging trade union participation. In Croatia, for example, 70 percent of all workers are on fixed-term contracts, usually limited to three months. In Eastern Europe and the former Soviet Union, even workers’ basic right to be paid is often violated. Employers regularly withhold wages for months with impunity. Company unions like those in Russia are associations supported by employers and powerful political circles—not true worker organizations.

Middle East

The right to form a union is probably least respected in the Middle East. Oman, Qatar, Saudi Arabia and the United Arab Emirates simply outlaw trade unions. Where unions do exist, they are under tight government control. Syria’s single trade union is linked to its government’s ruling party, and trade union activity is severely restricted in Kuwait. Saddam Hussein’s Iraq permitted no collective bargaining rights, and only one government-controlled trade union organization exists.

Domestic migrant workers, who comprise 50 to 90 percent of the workforce in the Gulf States, are the worst treated. Their dependency on their employers for residency rights and permits makes them vulnerable, particularly in Bahrain and Kuwait. With few or no rights under labor law, they work long hours for low (and sometimes no) wages. Domestic workers are often virtual slaves. They may be locked up, deprived of food and physically and sexually assaulted.

The Middle East situation is not completely dismal, however. In Saudi Arabia, Bahrain and Iran, small but encouraging steps have been taken. The Saudi government has approved regulations for “workers’ committees.” The Bahrain government has adopted a plan aimed at establishing democratic structures and norms, including the right to form trade unions. In Iran, although the law still restricts worker rights and repression still occurs, the government has accepted the existence of more than one trade union. Some Iranian workers’ protests not only have been tolerated but actually have achieved their objectives.

The Union Response

In response to these worldwide trends toward eroding respect for democratic institutions and worker rights, coupled with the global impact of regional economic crises, unions are seeking new ways to address global worker rights issues from a united perspective. First, unions have begun to develop international, regional and hemispheric coalitions. In addition, unions and human rights groups have encouraged, examined and tested a number of experimental measures to improve respect for worker rights.

xviii The State of Worker Rights Today

These approaches include the use of social charters and corporate codes of conduct and the enactment of legislation that makes trade benefits conditional upon governments’ observance of worker rights. This type of “conditionality” appears in country-to-country bilateral agreements, such as the 2000 U.S.-Jordan Free Trade Agreement, and at the regional level with neighboring countries, such as the North American Free Trade Agreement and the Mercosur agreements.

An expanding coalition of labor, human rights and environmental groups advocating for the linkage of worker rights and international trade is urging the inclusion of respect for worker rights at the global level in the World Trade Organization (WTO), which sets multilateral rules for trade. This coalition’s increasingly insistent demands brought the 1999 WTO trade ministers meeting in Seattle, Washington, to a halt. Widespread media coverage of the controversy surrounding the meeting has given trade unions new clout in international trade and labor debates. The ICFTU and allied organizations also are actively engaged with the World Bank to ensure that its policies and programs include social and worker rights dimensions. Unions continue to look for new ways to combine forces and to identify new, effective strategies for increasing respect for worker rights around the world, with the long-term goal of achieving justice for all.

Using the Guide

Over the past decade, the number of individuals, unions, non-governmental organizations (NGOs) and coalitions involved in international worker rights activism, reporting and monitoring has boomed. Many educational and informational materials on different aspects of worker rights problems have been developed during this period. Until now, however, they have not addressed the issues in a single comprehensive reference. Justice for All: A Guide to Worker Rights in the Global Economy was written to respond to the need for a general international reference tool for those who seek to improve respect for worker rights. It is an update of a similar guide produced in 1997. It is useful both for beginning worker rights students, who may not be familiar with international labor standards and mechanisms, and for seasoned activists.

Justice for All contains the following types of information:

It provides a detailed breakdown of ILO core labor standards—including freedom of association, the right to organize and bargain collectively, forced labor, child labor and discrimination. It also outlines general guidelines for the basic ILO standards on working conditions. Justice for All not only covers the basic principles in each standard, but also cites the specific types of laws and practices that constitute violations of the standards. In addition, it identifies situations that can serve as warning signs of possible violations or negative trends. This section is especially useful to those who report on or monitor worker rights, to teachers who want to provide students with a detailed understanding of the standards and to unions and NGOs that want to accu-

xix Introduction

rately track and cite violations in the preparation of ILO cases and other presentations on worker rights abuses.

It examines the experimental measures designed to improve worker rights. Many have been tested in the political arena and global marketplace during the past 20 years. Justice for All describes each strategy and mechanism and evaluates the advantages and disadvantages that have become apparent through their implementation.

Appendices provide useful related information, such as summaries of ILO standards, the procedures for filing ILO complaints, forms for collecting information on violations of worker rights and other items.

An increasingly diverse group of unions, NGOs and activists around the world is testing an array of international mechanisms, some old and some never used before, but all aimed at improving global respect for worker rights. Justice for All will help those who are developing their own strategies to gain a basic understanding of the options available, their advantages and drawbacks, the role of different international players and the information necessary to identify potential partners. In addition, trainers will find Justice for All useful for educating local activists regarding their own rights, the connection between their work and the global movement to improve respect for worker rights and ways to access that international community. Finally, Justice for All will help serve the needs of labor educators, lawyers, trade union leaders, specialists, monitors and union and NGO activists in their pursuit of global worker justice.

xx JJUSTICEUSTICE FFOROR AALLLL AA GuideGuide toto WorkerWorker RightsRights inin thethe GlobalGlobal EconomyEconomy

Printed in the United States of America

American Center for International Labor Solidarity 1925 K Street, NW Suite 300 Washington, DC 20006 www.solidaritycenter.org

Cover design by Fingerhut, Powers, Smith & Associates, Inc. Photos courtesy of the International Labor Organization JUSTICEJUSTICE FORFOR ALLALL A Guide to Worker Rights in the Global Economy

American Center for International Labor Solidarity/AFL-CIO

May 2003

Funding provided by a grant from the National Endowment for Democracy

TABLE OF CONTENTS

Introduction The State of Worker Rights Today xiii

iii ■ Andean Trade Preference Act–1991 81 ■ Tariff Act of 1930 (19 USC ¶1307)–2000 Modification 82

Chapter 4 Worker Rights and Regional Trade Pacts 85

Chapter 5 Worker Rights and Global Trade Pacts 171 ■ World Trade Organization (WTO) 173 ■ Organization for Economic Cooperation and Development 176 (OECD) ■ Multifiber Arrangement (MFA) 176

Chapter 8 Pursuing Worker Rights in the New Millennium 247

Appendix A Worker Rights Violation Report Form 253

Appendix B ILO Convention Summaries 259

viii Appendix C ILO Declaration on Fundamental Principles 269 and Rights at Work

Appendix D How to File an ILO Complaint 273

Appendix E Glossary of ILO Terms 281

Appendix F Glossary of Abbreviations and Acronyms 295

Appendix G Directory of ILO Offices 305

Appendix H Directory of ICFTU Offices 313

Appendix I Directory of Global Union Federation 317 Offices

Bibliography 331

ix ACKNOWLEDGMENTS

Worker Rights in Jeopardy

xiii Introduction

All over the world, worker rights trends are alarmingly similar.

Africa

Americas

xv Introduction

Asia

xvi The State of Worker Rights Today

Europe

xvii Introduction

Middle East

The Union Response

xviii The State of Worker Rights Today

Using the Guide

Justice for All contains the following types of information:

xix Introduction

rately track and cite violations in the preparation of ILO cases and other presentations on worker rights abuses.

xx Chapter 1

Worker Rights Standards and Violation Checklist The ILO permits no flexibility in the acceptance of the basic human rights standards, that is, freedom of association, the right to organize and bargain collectively, the prohibition of forced labor and the absence of discrimination.

—U.S. State Department 2002 Country Reports on Human Rights Practices Worker Rights Standards and Violation Checklist

This checklist is not intended to encompass the entire spectrum of internationally recognized worker rights. Rather, it is intended to highlight the International Labor Organization's (ILO) core labor standards identified in the ILO Declaration on Fun- damental Principles and Rights at Work, along with the basic ILO standards on working conditions. It explains the basic principles behind each standard, including the acceptable conditions, laws and practices under each principle. It also cites the laws, policies and practices that constitute violations of the standards according to precedents set by ILO case decisions. Finally, it describes situations that may indicate negative trends in worker rights practices and thus may serve as warning signs of worker rights violations warranting further investigation. Violations, warning signs and exceptions to certain principles are clearly indicated. Union activists can use the information in the checklist to complete the Worker Rights Violations Report Form (Appendix A).

Freedom of Association (ILO Convention No. 87)

Definition: The right of association is the right of workers and employers:

to establish and join organizations of their own choosing without previous authorization (Convention No. 87, Article 2);

to draw up their own constitutions and rules, elect their representatives and formulate their programs (Convention No. 87, Article 3 ¶1);

to join in confederations and affiliate with international organizations (Conven- tion No. 87, Article 5); and

to be protected against dissolution or suspension by administrative authority (Convention No. 87, Article 4).

In general, the difference between freedom of association and the right to organize and bargain collectively is that freedom of association concerns relations between unions and governments, whereas the right to organize and bargain collectively concerns relations between unions and employers.

General Principles and Common Violations

1. Freedom of association applies to everyone. A government may, at its discretion, exempt the military and police (General Survey on Freedom of Association and Collective Bargaining of the Committee of Experts on the Application of Conventions and Recommendations [hereinafter General Survey on Freedom], International Labor Conference [ILC], 1983, Report III (Part 4B), ¶89).

3 Chapter 1

Worker Rights Violations

Prohibiting government workers (civil servants engaged in the administration of the state), workers in special economic zones or industries (agricultural, domestic or migrant workers) or workers in state-owned enterprises from joining a union (note: prison guards are not considered to be “police” under international standards) (General Survey on Freedom, ILC, 1983, ¶87- 88; Review of annual reports under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, 2000 [hereinafter Follow-Up, 2000], ¶84; General Survey on Migrant Workers of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 1999, Report III (Part 1B), ¶439-440).

Permitting the formation of “associations” with limited rights but not unions with normal trade union rights (General Survey on Freedom, ILC, 1983, ¶84; Freedom of Association, Digest of Decisions and Principles of the Freedom of Association Committee of the governing body of the ILO [hereinafter Digest], 1996, 4th rev. ed., ¶216-17).

Warning Signs

No unions are being formed.

Extremely low percentage of workforce is organized.

2. Unions should be independent of the government or ruling party.

Worker Rights Violations

Requirement for a single trade union structure (General Survey on Freedom, ILC, 1983, ¶133; Follow-Up, 2000, ¶85). Inappropriate restrictions on who may be a trade union official (General Survey on Freedom, ILC, 1983, ¶155):

Requirement that all elected trade union leaders be employed in the occupation they represent (General Survey on Freedom, ILC, 1983, ¶157-158; Digest, 1996, 4th rev. ed., ¶369 & 371). Provisions of this type may prevent qualified people from carrying out their duties and limit the abilities of unions, particularly small unions, to seek some of their leaders from outside their ranks (e.g., pension specialists, lawyers). If, however, restrictive legislation exists, international standards prefer that governments extend eligibility to those who were previously

4 Worker Rights Standards and Violation Checklist

employed in the occupation they are now representing and allow a reasonable proportion of union officers to come from outside that occupation.

Requirement that trade union leaders be employed in the plants they represent (Digest, 1996, 4th rev. ed., ¶370).

Requirement that trade union officials be affiliated with a designated political party (General Survey on Freedom, ILC, 1983, ¶162; Digest, 1996, 4th rev. ed., ¶377).

Government-imposed limits on the number of years or periods of service a union officer may serve (General Survey on Freedom, ILC, 1983, ¶165-166; Digest, 1996, 4th rev. ed., ¶359 & 389).

Using the registration process to act as a barrier to establishing unions or to impede their function (General Survey on Freedom, ILC, 1983, ¶116):

Excessive “registration” requirements (General Survey on Freedom, ILC, 1983, ¶116).

Failure to register a union within a reasonable time period (Digest, 1985, 3d ed., ¶281).

Establishment of excessive “qualifications” for union recognition or “representativity,” which may prohibit independent unions from forming or functioning, (e.g., participating in the collective bargaining process) (General Survey on Freedom, ILC, 1983, ¶124).

Imposition of an excessive minimum size in order to form a union (General Survey on Freedom, ILC, 1983, ¶123; Digest, 1996, 4th rev. ed., ¶254-257). The ILO has not established a specific minimum number of members that a government may require in order for a union to be legally registered or to be considered legitimate. However, case decisions made over the years show a consistent pattern of ILO thinking. For example, governments that have tried to set minimum membership requirements of 1,000, 50 or even 30 workers have been told that this requirement should be reduced. The ILO has also frowned on a minimum requirement of 30 percent of the total number of workers employed in an establishment or group of establishments, or a minimum requirement of 20 percent of workers in a bargaining unit. However, the ILO considered it acceptable to require a minimum of 20 members to register a trade union. Minimum requirements of 100 workers to establish branch unions

5 Chapter 1

were considered excessive, while a minimum requirement of 30 for sectoral trade unions was considered acceptable. Requiring a minimum number of 30 workers, which was considered acceptable for a sectoral trade union, was too high for works councils. This was particularly true for a country that had a large proportion of small enterprises with a trade union structure based on enterprise unions. Any government that sets a minimum requirement is expected to do so in consultation with workers' and employers' organizations. Unions being permitted to file cases only in courts that are not independent of the government (e.g., the Labor Ministry). For example, a country may have a system of labor courts whose members are appointed by the Labor Minister. While this would be an acceptable first or intermediate step, the unions should have recourse to appeal to an independent court (General Survey on Freedom, ILC, 1994, ¶77). Dissolution of unions by administrative or legislative action (dissolution can occur only through a judicial system that allows for due process) (General Survey on Freedom, ILC, 1983, ¶227 & 234). Broad restrictions on union political activities (this is a gray area; in general, unions should be able to engage in political activities relating to legitimate union, i.e., worker interests) (General Survey on Freedom, ILC, 1983, ¶192- 198; Digest, 1996, 4th rev. ed., ¶452 & 455). Interference in union functions (e.g., elections, financial affairs or dues collection); imposition of regulations or statutes that limit union function (General Survey on Freedom, ILC, 1983, ¶187-188; Digest, 1996, 4th rev. ed., ¶448).

3. Restrictions on the right to strike are legitimate only for government service (civil servants engaged in the administration of the state) and “essential services” (only those services whose interruption would endanger worker or public safety and health). When the right to strike is denied, there should be effective alternate procedures for mediation, arbitration and settlement of grievances. “Essential services” are generally considered to include water, electrical, telephone, air traf- fic control and health services (General Survey on Freedom, ILC, 1983, ¶214; Digest, 1996, 4th rev. ed., ¶526 & 544).

The issue of strikes in essential services can be a confusing one. The ILO permits governments to prohibit strikes in these services. However, unions in some countries have managed to organize their strikes in such a way that public safety and health are not endangered, often by maintaining minimum services during the strike. They assert that since they have protected public safety and health, they should automatically have the right to strike.

6 Worker Rights Standards and Violation Checklist

The ILO does not appear to rule in their favor, however. The ILO does not require that a government prohibit strikes in essential services, so unions may indeed use these creative means of protecting public safety and health while striking if their law so permits. However, the ILO does permit a government to restrict the right to strike, even if the unions take these precautions.

If it chooses, the government can simply require that minimum services be maintained. However, the ILO does not think that governments can be required to make that choice.

Worker Rights Violations A general ban on strikes (General Survey on Freedom, ILC, 1983, ¶205). Temporary suspension of strikes, except in cases of national crisis (see Exceptions) (General Survey on Freedom, ILC, 1983, ¶206). Replacing the right to strike with mandatory arbitration in such a way as to negate the right to strike and deny workers a choice in determining procedures and arbiters (Digest, 1996, 4th rev. ed., ¶500). Imposing pre-strike requirements for negotiation, conciliation and arbitration that are so lengthy and cumbersome that it would be extremely difficult to call a legal strike (General Survey on Freedom, ILC, 1983, ¶219; Digest, 1996, 4th rev. ed., ¶499). Prohibiting strikes in export processing zones (EPZs), fledgling industries or state-owned enterprises (General Survey on Freedom, ILC, 1994, ¶169). Excessively broad definition of “essential services” (e.g., prohibitions for dock workers, transport services, petroleum industry, teachers, postal workers, bankers, etc.) (Digest, 1996, 4th rev. ed., ¶545). Using strikebreaking tactics:

Excessive length of compulsory mediation or arbitration procedures (General Survey on Freedom, ILC, 1994, ¶171).

Administrative interference (e.g., by a government official or ministry) (Report of the Governing Body Committee of the ILO on Freedom of Association [hereinafter Report], No. 262, Case No. 1444).

Physical intervention or worker intimidation (Digest, 1996, 4th rev. ed., ¶581-582).

Use of strikebreakers (Digest, 1996, 4th rev. ed., ¶570).

Imposition of excessive sanctions on strikers disproportionate to the offense committed (e.g., prison or forced labor) (General Survey on Freedom, ILC, 1983, ¶223; Digest, 1996, 4th rev. ed., ¶599).

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Use of police to break up a strike, with the exceptions noted below (Digest, 1996, 4th rev. ed., ¶573 & 579).

Conditions on Restricting the Right to Strike

“Emergencies” must be true national emergencies, such as war, but restrictions should be imposed only for a limited period (Digest, 1985, 3d ed., ¶421-423).

Occupational organizations in all branches of activity are obliged to ensure that the staff who are necessary for the safety of machinery and equipment, and the prevention of accidents and destruction, continue to work.

The government can assume responsibility for the function of essential services in the interest of the community. The use of police or army to maintain order or guarantee the continuation of essential services can be justified, but only in the cases where the suspension of such services would produce an acute crisis (Digest, 1996, 4th rev. ed., ¶528 & 577).

Pre-strike notification and conciliation procedures may be required, but only if they are reasonable and timely (Digest, 1996, 4th rev. ed., ¶501-502).

Requirements for membership strike votes by secret ballot or reasonable quorum are permissible, but an absolute majority may not be required (Digest 1996, 4th rev. ed., ¶503 & 506-510).

Exceptions

Strikes of a strictly political nature and strikes decided systematically long before negotiations take place do not fall under the ILO Principle on Freedom of Association (General Survey on Freedom, ILC, 1983, ¶216: Digest, 1996, 4th rev. ed., ¶481). Violent or illegal strikes are not protected. The ILO considers the use of police to break up strikes as a violation of trade union rights. However, police intervention is considered acceptable when it is limited to the maintenance of public order and does not restrict workers' legitimate right to strike (Digest, 1996, 4th rev. ed., ¶579 & 586). Also, authorities should resort to force only in grave circumstances when public order is seriously threatened. These restrictions are justified under international standards only if the strike has ceased to be peaceful.

8 Worker Rights Standards and Violation Checklist

Warning Sign Little or no occurrence of strikes.

4. Unions’ civil liberties must be respected. Worker Rights Violations Restrictions on freedom of assembly:

Imposing excessive rules on unions applying for permission to hold a protest rally or march (General Survey on Freedom, ILC, 1983, ¶66).

Requiring that police be present at union meetings (Digest, 1985, 3rd ed., ¶147-150). Restrictions on free speech/freedom of the press (General Survey on Freedom, ILC, 1983, ¶68):

Denying unions the right to publish and distribute union literature (Digest, 1996, 4th rev. ed., ¶159-161 & 169).

Denying unions the right to political action and participation in electoral campaigns. Restrictions on freedom and security of the person (General Survey on Freedom, ILC, 1983, ¶68):

Death threats, kidnapping or disappearance, arrest, detention, torture, murder, etc., in retaliation for participation in union activities (General Survey on Freedom, ILC, 1983, ¶57-58 & 61).

Restrictions on freedom of movement of trade unionists, such as travel restrictions (General Survey on Freedom, ILC, 1983, ¶63; Digest, 1996, 4th rev. ed., ¶128). Discrimination or harassment based on race, sex, ethnicity, nationality, social or economic class, religion, political activity or beliefs (Digest, 1985, 3rd ed., ¶68 & 71).

5. Unions may form and/or join federations, confederations and international confederations (General Survey on Freedom, ILC, 1994, ¶189). Worker Rights Violations Government-imposed restrictions on regional and national unions:

Restricting unions to the “plant level.”

Prohibition of the establishment of federations or confederations that

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group unions from different occupations, industries or provinces (General Survey on Freedom, ILC, 1983, ¶245; Digest, 1996, 4th rev. ed., ¶612).

Imposition of an excessive minimum number of organizations to establish higher-level federations or confederations (General Survey on Freedom, ILC, 1983, ¶240; Digest, 1996, 4th rev. ed., ¶611). Prohibition of ties with international federations (General Survey on Freedom, ILC, 1983, ¶250-251).

Right to Organize and Bargain Collectively (ILO Convention No. 98)

Definition: The right to organize and bargain collectively is the right of workers:

to be represented in negotiating the prevention and settlement of disputes with employers (Digest, 1996, 4th rev. ed., ¶786);

to protection against interference with union activities (Convention No. 98, Article 2);

to protection against acts of anti-union discrimination (Convention No. 98, Article 1, ¶1; Convention No. 151, Article 4, ¶1);

to protection against refusal of employment, dismissal or prejudice due to union- membership or participation (Convention No. 98, Article 1, ¶2(b); Convention No. 151, Article 4, ¶2(b)); and

to have governments promote mechanisms for voluntary negotiations between employers and workers and their organizations. (Convention No. 98, Article 4; Convention No. 151, Article 7).

General Principles and Common Violations

1. Voluntary collective bargaining should be protected by law and should be practiced (Follow-Up, 2000, ¶83).

Worker Rights Violations Inappropriate restrictions on collective bargaining:

Exclusion of subjects from the bargaining process that relate to conditions of employment (Convention No. 154, Article 2; General Survey on Freedom, ILC, 1983, ¶311; Digest, 1996, 4th rev. ed., ¶811; Digest, 1985, 3rd ed., ¶629).

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Requirement that collective agreements be submitted for prior government approval (General Survey on Freedom, ILC, 1983, ¶305 & 311).

Voiding of a collective agreement by the government because it runs contrary to economic policy (General Survey on Freedom, ILC, 1983, ¶311; Digest, 1996, 4th rev. ed., ¶869).

Requirement for prior government approval for the legal recognition of contracts (General Survey on Freedom, ILC, 1983, ¶305 & 311; Digest, 1996, 4th rev. ed., ¶871). Exceptions Government policies that restrict wage rates in the private sector, such as wage control measures, should be exceptional measures of limited duration accompanied by protections for maintaining worker living standards (General Survey on Freedom, ILC, 1983, ¶315; Digest, 1996, 4th rev. ed., ¶882).

In the public sector, in cases where wages are set by legislative action, it is permissible to restrict bargaining over wages (Digest, 1996, 4th rev. ed., ¶899).

It is also permissible to restrict bargaining by public servants engaged in the direct administration of the state (General Survey on Freedom, ILC, 1983, ¶255; Digest, 1996, 4th rev. ed., ¶793-794).

It is also permissible to accord exclusive bargaining rights to a particular public sector union, as long as procedures are available that allow workers some say in determining the “most representative” union to represent them (ILO Recommendation No. 159, ¶1(1); Digest, 1996, 4th rev. ed., ¶834).

Employers may also bargain with multiple public sector unions. Warning Signs Few or no contracts signed. Low percentage of enterprises covered by contracts.

2. Anti-union discrimination by employers should be illegal (Convention No. 98, Article 1, ¶1; Convention No. 151, Article 4; Digest, 1996, 4th rev. ed., ¶701). Worker Rights Violations Dismissal of workers for having established a trade union (Report No. 300, Case No. 1780, ¶130-143). Dismissal, demotion or punitive transfer of workers who participate in nego-

11 Chapter 1

tiations, legal (according to country law) strikes or other legitimate union activity (Convention No. 158, Article 5(a)). Discrimination against pro-union employees in terms of pay, hours, assign- ments, promotions and so forth (Report No. 305, Case No. 1874, ¶254-272; Report No. 310, Case No. 1867, ¶71-89). Employer’s refusal to negotiate with the union chosen by the workers (e.g., choosing to bargain with another “friendlier” union (General Survey on Freedom, ILC, 1983, ¶296). Employer’s refusal to negotiate a first contract within a reasonable period of time (Report No. 309, Case No. 1852, ¶308-402; Report No. 313, Case No. 1880, ¶151-168; Report No. 318, Case No. 2012, ¶405-430). Employer blacklisting of trade union leaders or members (Digest, 1996, 4th rev. ed., ¶709 & 734). Prohibition of the right to attend union meetings (Report No. 248, Case No. 1130, ¶280 & 298). Forcing employees to attend anti-union meetings against their will; denying pro-union workers the right to attend and/or speak up at such meetings; having supervisors pressure workers in one-on-one meetings not to support a union (Report No. 302, Case No. 1826, ¶386-414). Threatening workers with adverse consequences if they choose to unionize (Report No. 307, Case No. 1855, ¶434-445). Making employment conditional upon the worker’s rejection of trade union membership or activity (Report No. 313, Case No. 1880, ¶151-168). Denying union access to employees on company property in non-work areas on non-work time (Report No. 308, Case No. 1897, ¶451-480). Forcing workers to sign letters of resignation as a condition of being employed, in order to use such letters subsequently to dismiss workers if they join a union (Report No. 320, Case No. 2013, ¶723-734). Prohibition of union literature, insignia and other promotional material in the workplace (Report No. 309, Case No. 1897, ¶451-480). Surveillance of trade union leaders or members (Report No. 270, Case No. 1508, ¶411). “In-house” organizations controlled by employers (e.g., employer-organized and financed organizations in lieu of worker-organized and supported enterprises) (General Survey on Freedom, ILC, 1994, ¶231 & 233; Report No. 311, Case No. 1966, ¶342-365).

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Exceptions

Some laws that name strikes “illegal” in certain sectors may not conform to internationally recognized worker rights standards. In these cases, strikes may be acceptable. In most cases, illegal activities such as the destruction of property or building takeovers are not considered “legitimate” union activity.

Worker protections do not necessarily apply in cases of “absence from work without the employer's permission” (Digest, 1996, 4th rev. ed., ¶728). Worker protections do not necessarily apply in cases where union representatives fail to “act in conformity with existing laws or collective agreements” (ILO Recommendation No. 143, III, ¶5). Warning Signs Security rules in EPZs that deny a union access to workers.

Employers' use of “temporary” workers who are given consecutive contracts in order to avoid the formation of unions and to avoid the cost of benefits (Report No. 259, Case No. 1403, ¶75). Employers' use of “individual work contracts” that preclude union participation in order to avoid or undermine union activity (Report No. 48, Case No. 1309).

3. Speedy and effective mechanisms should exist to review union or worker complaints of anti-union discrimination; mechanisms that workers do not perceive as “fair” should not be considered effective. Moreover, when complaints such as a dismissal go through a judicial process, the burden of proof should rest on the employer, who must prove that the dismissal had no connection with the worker's union activities (Convention No. 98, Article 3; General Survey on Freedom, ILC, 1983, ¶264, 269 & 271; digest, 1996, 4th rev. ed., ¶752). Worker Rights Violations Limited access to judicial system, as, for example, in linking the final resolution of a case exclusively to a labor court where justices are appointed by the Labor Ministry. Such a labor court could operate as an initial step in a judicial process, but parties should be able to appeal to an independent court system as well. Warning Signs Defective mechanisms, such as long delay or excessive expense in court cases (General Survey on Freedom, ILC, 1983, ¶268; Digest, 1996, 4th rev. ed., ¶741). Apparent bias (General Survey on Freedom, ILC, 1983, ¶268; Digest, 1996, 4th rev. ed., ¶741 & 749).

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Failure to punish offenders (General Survey on Freedom, ILC, 1983, ¶278).

Overreliance on awarding severance pay to fired workers in lieu of ordering reinstatement or imposing other penalties that would act as a deterrent (General Survey on Freedom, ILC, 1983, ¶277).

Forced Labor (ILO Conventions No. 29 and No. 105)

Definition: Although there are certain exceptions, forced labor is defined as work or service exacted from any person under the menace of penalty and for which the person has not volunteered. “Menace of penalty” includes loss of rights or privileges as well as penal sanctions. Forced labor should be prohibited and suppressed in all its forms (Convention No. 29, Article 1, ¶1 and Article 2, ¶1; General Survey on Forced Labour of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 1979, Report III (Part 4B) [hereinafter General Survey on Forced Labour], ¶21).

General Principles and Common Violations

1. Forced labor should NEVER be used for the following purposes:

for economic development;

to enforce racial, social, national or religious discrimination;

as political coercion or education or as punishment for holding or expressing political views opposed to the established political, social or economic system;

for labor discipline; or

as a punishment for having participated in legal strikes (Convention No. 105, Article 1).

2. Certain forms of prison labor are acceptable, ONLY when imposed following conviction for a crime in a court of law. Any prison labor must be carried out under the supervision and control of a public authority. A prisoner may not be com- pulsorily “hired to” or “placed at the disposal of” a private contractor (even if that contractor does not profit from such service) (Convention No. 29, Article 2, ¶2(c); General Survey on Forced Labour, ¶89; General Report of the Committee of Experts on the Application of Conventions and Recommendations [hereinafter RCE], 2001, ¶123-125).

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Exceptions Limited obligations aimed at cleanliness, such as cleaning one's cell, are not a violation of the standard (General Survey on Forced Labour, ¶90). Voluntary work made available to prisoners at their own request is acceptable (General Survey on Forced Labour, ¶90). Sanctions (including forced labor) can be imposed for participation in strikes in the civil service or essential services, where unions are provided adequate procedures for conciliation and arbitration as alternatives to strikes (General Survey on Forced Labour, ¶120 & 123). Worker Rights Violations Prison labor imposed by an administrative or legislative authority (General Survey on Forced Labour, ¶94; RCE, 1995, ¶110; RCE, 1988, ¶89; RCE, 1987, ¶109; RCE, 1982, ¶85; RCE, 1981, ¶66). Forcing people to work who are in detention but have not been convicted (e.g., those awaiting trial or those detained without trial) (General Survey on Forced Labour, ¶90; RCE, 1980, ¶61 & 68). Work imposed in a manner that places the prisoner at the disposal of private individuals, companies or associations. If prisoners accept employment with particular employers, it must be voluntary. Conditions approximating a free labor relationship, e.g., payment of normal wages, social security, safety and health inspections, consent of unions, no menace of penalty, are the most reliable indicator of voluntary employment (Convention No. 29, Article 4, ¶1, Article 5 ¶1 and Article 6; General Survey on Forced Labour, ¶97; RCE, 1993, ¶97, RCE, 1983, ¶79-80; RCE, 1982, ¶68-69; RCE, 2001, ¶143). Prison labor imposed for any of the reasons cited in Principle 1, even if the person was “convicted” for those reasons (RCE, 1981, ¶159; RCE, 1980, ¶149-150).

3. National service obligations, such as compulsory military service and normal civic obligations, are acceptable except as noted below (Convention No. 29, Article 2, ¶2(a) & (b)).

Worker Rights Violations Use of draftees for non-military purposes, (e.g., economic or social development) (General Survey on Forced Labour, ¶24; RCE, 1990, ¶94; RCE, 1984, ¶78; RCE, 1983, ¶77). Compulsory enrollment of unemployed young people in civic service where service is not restricted to education and training (General Survey on Forced

15 Chapter 1

Labour, ¶54; RCE, 1984, ¶71-72; RCE, 1982, ¶64; RCE, 1980, ¶73-74). Obligation to serve the state in return for training where failure to comply carries penal sanctions (General Survey on Forced Labour, ¶55; RCE, 1985, ¶81). Obligation to work in EPZs.

4. Forced labor is acceptable in a genuine emergency, limited to a “sudden, unfore- seen happening, calling for instant counter measures, such as war, calamity or threatened calamity such as earthquakes, floods, pestilence, etc.” The duration and extent of work should be confined to what is absolutely required by the circumstances (Convention No. 29, Article 2, ¶2(d); General Survey on Forced Labour, ¶36).

5. Minor communal services, defined as services performed by community members in the direct interest of the community, are acceptable provided that community members or their direct representatives are consulted concerning the need for the service (Convention No. 29, Article 2, ¶2(e); General Survey on Forced Labour, ¶37; RCE, 1995, ¶109; RCE, 1992, ¶101; RCE, 1981, ¶65-66).

Worker Rights Violations Required communal service exacted without consent from community representatives (RCE, 1988, ¶95). Cultivation where no food deficiency exists and where the produce does not remain the property of the group producing it (Convention No. 29, Article 19, ¶1; General Survey on Forced Labour, ¶81; RCE, 1988, ¶ 77; RCE, 1987, ¶ 102-103).

6. Constitutional provisions that require citizens to work are acceptable unless they take the form of a legal obligation enforced by sanctions or unless they are inconsistent with the principle of “freely chosen employment” (General Survey on Forced Labour, ¶45).

Worker Rights Violations Imposing penalties on those whose only offense is refusing employment. Such penalties should be imposed only where the refusal to work occurs in conjunction with unlawful activities, such as the disturbance of public order (General Survey on Forced Labour, ¶46; RCE, 1984, ¶82; RCE, 1982, ¶66; RCE, 1980, ¶61 & 74). Restrictions on the freedom of workers to terminate employment. Workers should be able to terminate employment after giving reasonable notice. They

16 Worker Rights Standards and Violation Checklist

should not be legally required to obtain consent or permission of the administration or other authorities before leaving their jobs (General Survey on Forced Labour, ¶67 & 68: RCE, 1986, ¶94-95; RCE, 1982, ¶76-77; RCE, 1980, ¶70 & 76).

7. Trafficking in persons, i.e., the transfer, harboring or receipt of persons by coercion or fraud for the purpose of exploitation should be prohibited. “Exploitation” includes prostitution or other sexual exploitation, forced labor, slavery or the removal of organs. The transfer, harboring or receipt of children (under the age of 18) for the purposes of exploitation should be prohibited regardless of the means used (RCE, 2001, ¶73).

8. Prohibitions against forced labor should be effectively enforced with adequate labor inspection and penal sanctions for offenders (Convention No. 29, Article 25; General Survey on Forced Labour, ¶84).

Child Labor (ILO Conventions No. 138 and No. 182)

Definition: The “Worst Forms of Child Labor Standard” aims at the prohibition and elimination of the worst forms of child labor, taking into account the importance of free basic education and the need to remove children from all such labor and to provide for their rehabilitation and social integration (Convention No. 182).1 The minimum age standard aims at the effective abolition of child labor by raising the minimum age for employment to a level consistent with the fullest physical and mental development of young people (Convention No. 138, Article 1).

Under Convention No. 182, governments must work to prohibit and eliminate:

all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict;

the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic purposes;

the use of a child in the production and trafficking of drugs; and

work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children (Convention No. 182).

Child labor is defined as any work or employment situation where children are engaged on a more or less regular basis to earn a livelihood for themselves or their families (Convention No. 138). Hazardous work is defined as work that exposes children to physical, psychological or sexual abuse; work underground, underwater, at dangerous heights

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or in confined spaces; work with dangerous machinery or tools or that includes heavy loads; work in unhealthy environments that may expose children to hazardous substances, temperatures, noise or vibrations; and work under particularly difficult conditions such as long hours, during the night or where a child is confined to the premises of the employers (Convention No. 182).

General Principles and Common Violations

1. The minimum age for employment should be set no lower than 15, with an option for developing countries to set a lower minimum age of 14 where the level of economic development makes the realization of the higher standard impossible. Countries that set the minimum age at the lower level, however, should be trying to progressively change conditions so that they can meet the higher standard (Convention No. 138, Article 2, ¶3-4; ILO Recommen- dations No. 146, II, ¶7; General Survey on Minimum Age of the Committee Experts on the Application of Conventions and Recommendations, ILC, 1981, Report III (Part 4B) [hereinafter General Survey on Minimum Age], ¶23 & 117).

Worker Rights Violation Children under minimum age standards working to feed and clothe themselves or their families, thus diverting attention from schooling.

Exceptions Light work is permissible for 13- to 15-year-olds, as long as it will not harm their health or development and will not prejudice their school attendance (minimum age of 12 for light work is acceptable where the minimum age for employment is 14). “Light work” is not a major element of the family's work; it covers the idea of working for pocket money or helping the family, as for example, helping at harvest time or with the family business (Convention No. 138, Article 7, ¶1 & 4; General Survey on Minimum Age, ¶25 & 159). The minimum age of 18 for dangerous work (work likely to jeopardize the health, safety or morals of young people) is 16 where the minimum age for employment is 14 (Convention No. 138, Article 3, ¶1 & 3; General Survey on Minimum Age, ¶28, 215 & 219). Work in connection with education or training is acceptable (children enrolled in apprenticeship programs should be at least 14 years old)(Convention No. 138, Article 6; General Survey on Minimum Age, ¶18, 253 & 269).

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Individual permits for participation in artistic performances are acceptable but should be issued on the basis of merit. Hours and working conditions should be regulated and closely supervised (Convention No. 138, Article 8, ¶1 & 2; General Survey on Minimum Age, ¶20, 193, 195 & 205).

2. Minimum age legislation should cover all economic activity, not just employment under contract (General Survey on Minimum Age, ¶35 & 61).

Worker Rights Violations Children engaged in street trading, maritime, self-employed, commissioned, piecework or domestic work (Convention No. 58, Article 1; General Survey on Minimum Age, ¶61 & 68). Children working in rural areas outside of family farms for local consumption (e.g., plantation work) (Convention No. 138, Article 5, ¶3; General Survey on Minimum Age, ¶19). Children doing dangerous work, e.g., mining, construction or manufacturing(Convention No. 138, Article 5, ¶3). Children paid lower wages than adults for identical work (General Survey on Minimum Age, ¶279). Child labor in EPZs.

Exceptions The scope of application and the categories of employment may be some- what limited:

Where there are special and substantial problems with applying a minimum age law (Convention No. 138, Article 4, ¶1; General Survey on Minimum Age, ¶31, 37 & 75-76).

Where there are branches of economic activity or government undertakings with insufficiently developed economies and administrative facilities (Convention No. 138, Article 5, ¶1; General Survey on Minimum Age, ¶38 & 94).

These limitations may NOT include work dangerous to health, safety or morals. Protective legislation must minimally exclude from child employment: mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes (Convention No. 138, Article 4, ¶3 & Article 5, ¶3; General Survey on Minimum Age, ¶37).

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3. Education should be provided for all children and should be compulsory. The minimum age for employment shall not be less than the age for completion of compulsory schooling (Convention No. 138, Article 2, ¶3; ILO Recommendation No. 146, I, ¶4; General Survey on Minimum Age, ¶21, 117 & 124; Follow-Up, 2000, ¶105).

Exceptions Work is permissible for 15-year-olds who have not completed compulsory schooling as long as the work is unlikely to harm their health or development and will not prejudice their school attendance (Convention No. 138, Article 7, ¶2). In order to fully benefit from schooling and to allow for limited strength, youth should not work for the same duration as adults.

Limitations should be set on hours and overtime (ILO Recommend- ation No. 146, IV, ¶13).

Night work should be prohibited (ILO Recommendation No. 146, IV, ¶13).

Daily and weekly rest periods should be set (ILO Recommendation No. 146, IV, ¶13). Warning Signs Failure to provide education for all children. Gap between the end of compulsory education and the minimum age for employment (e.g., if education is compulsory until a child is 15 years old, but the minimum age for employment is 14, it is highly likely in some situations that children will work instead of going to school). Low rate of school attendance (generally, where the rate of school attendance is low, the rate of child employment is high). Prohibitions of work for children only during school hours. (If no limits are set for work after school hours as well, children’s time and energy can be drained, thus prejudicing their education.) No enforcement system for school attendance.

4. Minimum age legislation should have an effective enforcement system that includes an adequate number of inspectors and penalties that serve as effective deterrents. Penalties should include fines and/or imprisonment. Employers should be required to keep registers of children under 18 years of age, and labor inspectors should have access to these records (Convention No. 138, Article 9, ¶3; ILO Recommendation No. 146, V, ¶16(b); General Survey on Minimum Age, ¶32-33 & 39).

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Warning Signs Too few inspectors vis-à-vis the total number of enterprises. Low number of child labor inspections. Low number of citations issued by inspectors and few convictions in court. Little or no penalty levied upon offenders.

Warning Signs of Forced or Indentured Child Labor The U.S. Customs Service has categorized two levels of warning signs. “Red flags” constitute strong indications of forced or indentured child labor, while “yellow flags” represent suspicious conditions that point to possible unfair or illegal labor practices and warrant further inquiry and investigation. These warning signs, which are condensed on the following pages, are published in the December 2000 Forced Child Labor Advisory Manual (available at http://www.customs.gov/ enforcem/forc.htm).2 Unlike the other citations in this chapter, they are not distilled directly from ILO case history. They are included here because they constitute good indicators of situations that may violate worker rights, particularly rights relating to child labor. Direct documentary evidence of forced child labor is rarely available. Children may be forced to serve as indentured workers for long periods of time following no more than a cash payment from an employer to a relative of the child or a middleman. Accordingly, monitors must look for warning signs to ascertain whether forced child labor may be occurring at a worksite.

Red Flags

1. Slave labor conditions, under which a child is not free to choose to leave the work site or the employment, including:

the use of chains or other physical restraints;

physical confinement or restricted exit from a facility. Note locked gates or doors and/or the presence of police or guards exceeding reasonable security needs;

use of physical force or abuse to keep the child at the workplace;

use of private or public police or security guards to return runaway workers to the job site and to enforce work obligations by violence or imprisonment; and

isolated work sites, such as jungle camps or platforms at sea, where children are not permitted to leave, even when their term of service is completed, because of the inaccessibility of transportation not controlled by the employer.

2. Employment to liquidate a debt or debt bond.

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3. Payments made to a party other than the worker. This condition may point to indentured employment to pay off the debt of another person, such as a parent or relative. Payment to a parent may simply reflect the child’s status as a minor, but the circumstances around this payment should be investigated to be sure that the parent is not being paid for the child’s indentured labor.

4. Financial penalties for absenteeism, production errors or refusal to work overtime, when these penalties eliminate wages or credits already earned or create indebtedness that must be liquidated. These may be used as an employer tactic to create indefinite bondage through continually increasing debt.

5. Evidence of physical or sexual abuse of child workers at the workplace. This includes physical intimidation of workers to keep them on the job, to prevent their complaints to authorities or to punish mistakes.

6. Employment of very young children, particularly in significant numbers.

7. The presence of child workers who appear to require immediate medical or psychological care as a result of an apparent physical or mental illness.

8. Employment of children not working as part of a family unit or with the presence of a parent or other adult family member. The absence of a family member who can protect the child’s interests is a sign of forced or indentured child labor. However, the presence of a family member alone is not sufficient to eliminate the possibility that a child’s labor may be forced or indentured.

9. Girls working without adult female presence or supervision where such a practice runs counter to local custom. In many developing countries, work away from the family, including forced or indentured labor, is often a prelude to forced prostitution. In cultures where young girls are not expected to work outside the family or without an adult female presence, this condition is a warning sign of forced or indentured labor.

10. Employment of children at a work site far from their hometown or village. Child workers are often transported from their homes by middlemen to distant work sites, where they are effectively removed from parental oversight and protection and subjected to the employer’s control.

Yellow Flags

1. Work being performed during unusual hours, such as early morning, late at night or during school hours. This may indicate that excessively long hours are being worked, prejudicing the health of child workers, and also suggests that children are being forced to work.

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2. Poor and unhealthy working environments, including, but not limited to, poor lighting and ventilation, and/or lack of access to food, water and sanitary facilities.

3. Employment that violates local laws and regulations.

4. Child employment in hazardous industries or under extreme conditions.

5. Missing or altered employment records. These may be concealing illegal business practices, including the use of forced or indentured child labor.

6. Workers missing from looms or other workstations that are actively operating during on-site visits. Some workplace operations require a team. For example, the operation of a carpet loom may require four workers seated side by side. If the loom is operating during a plant inspection but a couple of workers are missing, the monitor should consider the possibility that the missing workers are underage, forced or indentured child workers.

7. Denial of generally available educational opportunities. Educational opportunities may be limited in certain developing countries or regions within those countries. However, if the child worker is denied the type of education that is normally available to other children of his or her age, the situation may involve forced or indentured child labor.

Discrimination (Equality in Employment and Occupation) (ILO Conventions No. 100 and No. 111)

Definition: The right to equality in employment and occupation, where the terms “employment” and “occupation” include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment, is the right of workers to have:

Freedom from discrimination on the basis of race, color, sex, religion, political opinion, national extraction and social origin, where discrimination is defined as any distinction, exclusion or preference that impairs equality of opportunity or treatment in employment and occupation (Convention No. 111, Article 1);

Freedom from any other type of discrimination (defined on the basis of each nation’s particular anti-discrimination policy) that impairs equality of opportunity or treatment in employment or occupation (Convention No. 111, Article 1, as cited in the General Survey on Equality in Employment and Occupation of the Committee of Experts in the Application of Conventions and Recommendations [hereinafter General Survey on Discrimination], ILO, 1996, ¶27, 48);

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Equal pay for men and women workers for work of equal value (Convention No. 100, Article 2); the concept of “pay” includes any kind of compensation by the employer to the employee for work performed for employment (Convention No. 100, Article 1);

Freedom from discrimination on the basis of family responsibilities (Convention No. 156, as cited in the General Survey on Discrimination, ILO, 1988, ¶68);

Freedom from discrimination on the basis of a disability (the ILO defines a “disabled person” as an individual whose prospects of securing, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognized physical or mental impairment) (Convention No. 159, as cited in the General Survey on Discrimination, ILO, 1988, ¶69);

Freedom from discrimination on the basis of migrant worker status (the ILO defines “migrant for employment” as “a person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment”) (Convention No. 97, as cited in the General Survey on Discrimination, ILO, 1996, ¶20; and Recommendation 111, ¶II.8); and

Governments declare and pursue national policies that promote equality of opportunity and treatment in employment and occupation, and aim to eliminate any and all discrimination in these areas. Convention No. 111 allows for flexibility when applying anti-discrimination standards to national contexts. The manner in which these standards are applied is still important, but the primary goal of the Convention is to achieve equality of opportunity and treatment in employment without unlawful discrimination (General Survey on Discrimination, ILO, 1988, ¶157).

As a means to this end, governments should:

enact appropriate legislation (Convention No. 111, Article 3);

repeal any statutory provisions, administrative instructions or practices that are inconsistent with these policies (Convention No. 111, Article 3);

ensure that non-discrimination employment policies are applied in all of its activities, including publicly provided vocational training and placement services (Convention No. 111, Article 3; General Survey on Discrimination, ILO, 1988, ¶158);

seek the cooperation of employers’ and workers’ organizations (Convention No. 100, Article 4); and

promote the objective appraisal of jobs on the basis of the work to be performed (Convention No. 100, Article 3).

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Exceptions Different pay rates between workers that correspond to the type of work to be performed are not considered discriminatory (Convention No. 100, Article 3). Any distinction, exclusion or preference based on the inherent requirements of a job is not considered discrimination (Convention No. 111, Article 1). For more detail on this topic, see General Survey on Discrimination, ILO, 1988, ¶125-156, and General Survey on Discrimination, ILO, 1996, ¶117-141. In general, access to training, employment and occupation should be based on objective criteria defined in the light of academic and occupational qualifications required for the employment. Some special jobs may require otherwise disfavored qualifications (for example, a high government post may require a particular political persuasion), but requirements that do not correspond to the person’s aptitude for the position violate Convention No. 111 (General Survey on Discrimination, ILO, 1988, ¶125-127). Measures that affect persons whose activities endanger state security are not considered discrimination, as long as those persons have the right to appeal to an independent judiciary (Convention No. 111, Article 4). This exception does not include discriminatory measures taken because of a person’s membership in a particular religious or political group. A distinction should be drawn between a person’s beliefs or opinions and activities that directly threaten state security or affect the person’s work performance (General Survey on Discrimination, ILO, 1988, ¶134-138; General Survey on Discrimination, ILO, 1996, ¶127). Special measures of protection or assistance provided for other ILO conventions or recommendations are not considered discrimination (Convention No. 111, Article 5).3

Special measures designed to assist persons who are considered in need of special protection or assistance (because of sex, age, disability, family responsibilities or social or cultural status) are not considered discrimination (Convention No. 111, Article 5).4

General Principles and Common Violations

1. Freedom from discrimination applies to everyone, including both nationals and non-nationals; it applies equally to migrant workers and to indigenous and tribal peoples (General Survey on Discrimination, ILO, 1988, ¶17, 212).

Migrant workers are covered by special provisions in the Migration for Employment Convention (No. 97) and the Migrant Workers Convention (No. 143) and by Recommendation No. 151. Note that the provisions of these conventions dealing with equality of opportunity and treatment in employment

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(Part II of Convention No. 143 and Article 6 of Convention No. 97) apply only to immigrants who are legally present in a country. (General Survey on Discrimination, ILO, 1988, ¶21). Indigenous and tribal peoples are covered by special provisions in the Indigenous and Tribal Populations Convention (No. 107) and the Indigenous and Tribal Peoples Convention (No. 169).

Worker Rights Violation Racial discrimination on ships, justified by the fact that a nation’s legislation on employment protection does not cover seafarers of foreign nationality on board vessels of that nation (General Survey on Discrimination, ILO, 1988, ¶18).

Warning Sign Laws protecting employees from discrimination apply only to citizens, even though the country’s labor legislation applies to both nationals and foreign- ers (General Survey on Discrimination, ILO, 1988, ¶19).

2. Workers are entitled to freedom from discrimination in all situations that may affect equality of opportunity and treatment. This includes both law and practice, and both direct and indirect discrimination (see definition of indirect discrimination below) (General Survey on Discrimination, ILO, 1988, ¶22, 28-29).

Worker Rights Violations Legislation stipulating that discrimination is considered illegal only if it can be shown that the perpetrator intended to practice discrimination (General Survey on Discrimination, ILO, 1988, ¶26). Indirect discrimination, such as where labor regulations and practices, when applied uniformly, prevent certain classes from having opportunities equal to those enjoyed by others. This would include, for example, differences in treatment on the grounds of civil, marital or family status or establishing a minimum height or weight for certain categories of employees that would lead to the exclusion of a significant percentage of the female population, provided that the requirements were not related to work performance (General Survey on Discrimination, ILO, 1988, ¶28).

3. Workers shall not be discriminated against on the basis of race or color (General Survey on Discrimination, ILO, 1988, ¶31).

Race is “the ethnic group to which an individual belongs by reason of heredity.” (General Survey on Discrimination, ILO, 1996, ¶30). The ILO notes that “difference of color is only one of the ethnic characteristics, but it is the most apparent, and is therefore often linked to the ground of race in constitutional or legislative provisions

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adopted by certain countries to prohibit discrimination” (General Survey on Discrimination, ILO, 1996, ¶30).

4. Workers shall not be discriminated against on the basis of sex (General Survey on Discrimination, ILO, 1988, ¶31).

Distinctions based on sex are those that use the biological characteristics and functions that differentiate men from women. Such distinctions include those established explicitly or implicitly, to the disadvantage of one sex or the other (General Survey on Discrimination, ILO, 1996, ¶35).

Worker Rights Violations Occupational segregation according to gender, for example, rejection of a man’s application to work as a flight attendant or a woman’s application to work as an electrician because a company is seeking to fill these positions exclusively with members of one sex (General Survey on Discrimination, ILO, 1988, ¶38). Sexual harassment. The ILO definition of sexual harassment includes insults, remarks, jokes, insinuations and inappropriate comments on a person’s dress, physique, age, family situation, etc.; a condescending or pater- nalistic attitude undermining dignity; unwelcome invitations or requests that are implicit or explicit, whether or not accompanied by threats; lascivious looks or other gestures associated with sexuality; and unnecessary physical contact, such as touching, caresses, pinching or assault. To be considered sexual harassment, an act must have one or more of the following characteristics: be justly perceived as a condition for employment; influence decisions made with respect to employment; prejudice occupational performance; or humiliate, insult or intimidate the person suffering from such acts (General Survey on Discrimination, ILO, 1996, ¶179). Discrimination on the basis of civil or marital status, a family situation, pregnancy or confinement, for example (General Survey on Discrimination, ILO, 1988, ¶41-44):

prohibiting women of a certain occupation from marrying, and/or terminating their employment in the event that they do marry.

making pregnancy grounds for termination of employment.

making an offer of employment to a woman dependent on her husband’s permission. The prohibition of commingling at work or the limited training of women that results in occupational segregation according to sex (General Survey on Discrimination, ILO, 1996, ¶175).

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Paying women at a lower rate than men for either the same work or work of equal value (General Survey on Discrimination, ILO, 1988, ¶111).

5. Workers shall not be discriminated against on the basis of religion (General Survey on Discrimination, ILO, 1988, ¶31).

Worker Rights Violations Terminating employment because of religious affiliation; prohibition to register in schools, higher education institutes and universities; withdrawal of pensions; or denial of work or of promotion (General Survey on Discrimination, ILO, 1988, ¶50). Imprisonment of members of specific religious groups on the grounds of the peaceful propagation of their faith (General Survey on Discrimination, ILO, 1996, ¶188). Conditioning access to employment on a statement or oath that refers to a particular religion or whose content is contrary to the religious beliefs of the applicants (General Survey on Discrimination, ILO, 1988, ¶53).

Warning Signs Existence of a state religion. In this situation, the ILO recommends that special care be taken by the government to prevent religious discrimination (General Survey on Discrimination, ILO, 1988, ¶47). The number of persons of minority religions occupying managerial posts and positions of trust (e.g., state sector or judicial jobs) is considerably lower in proportion to persons of the majority religion (General Survey on Discrimination, ILO, 1996, ¶190). Legislation that requires the media to respect the public’s religious sensitivities (General Survey on Discrimination, ILO, 1996, ¶191). Existence of atheism as part of the founding doctrine of a country (General Survey on Discrimination, ILO, 1988, ¶48).

6. Workers shall not be discriminated against based on political opinion, national extraction or social origin (General Survey on Discrimination, ILO, 1988, ¶31).

National extraction refers to distinctions between the citizens of the same country on the basis of a person’s place of birth, ancestry or foreign origin. For example, this includes persons who have acquired their citizenship by naturalization or who are descendants of foreign immigrants (General Survey on Discrimination, ILO, 1996, ¶33-34).

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Worker Rights Violations

Prohibition or unequal restrictions on persons of foreign birth regarding access to jobs in public employment (General Survey on Discrimination, ILO, 1988, ¶36). Denial of or assignment to certain jobs, activities or training based on membership in a particular class, socio-occupational category or caste or preferences in employment or job training granted to individuals on the basis of their social origin or the merits of their parents (General Survey on Discrimination, ILO, 1988, ¶54, 56). Prohibition of employment or training on the basis of political activity, opinions, beliefs or affiliation with a political organization or party (General Survey on Discrimination, ILO, 1988, ¶58), for example:

dismissal of public service education workers based on their former membership or position in certain political parties or organization (General Survey on Discrimination, ILO, 1996, ¶196).

the requirement that a worker submit forms containing information on his/her moral attitude and social conduct at the time of recruitment (General Survey on Discrimination, ILO, 1996, ¶196).

for persons holding principles that conflict with the “divine laws” or principles of the state, prohibition from holding posts in the public administration or public sector, from working in the media, from working in the field of education or from working in any other post that might influence public opinion (General Survey on Discrimination, ILO, 1996, ¶194, 199-200). Making access to employment contingent on specific political beliefs and the fulfillment of certain political requirements (General Survey on Discrimination, ILO, 1988, ¶60). Warning Signs Discrimination on the basis of political opinion, which often occurs following the declaration of a state of emergency (General Survey on Discrimination, ILO, 1996, ¶195). Absence of non-discrimination legislation regarding certain categories (e.g., political opinion, social origin) on the grounds that these types of discrimination are not encountered in practice (General Survey on Discrimination, ILO, 1988, ¶32, 58).

7. Workers shall receive equal opportunity and treatment with respect to access to vocational guidance,5 placement services and training, including the elimination

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of illiteracy (General Survey on Discrimination, ILO, 1988, ¶76; General Survey on Discrimination, ILO, 1996, ¶71).

The ILO observes that “universal education, compulsory and free of charge to the same level for everyone, is one of the basic starting points for a policy to promote equality of opportunity and treatment in employment and occupation.” Worker Rights Violations The use of standards of general education that differentiate between men and women (General Survey on Discrimination, ILO, 1988, ¶78). Deliberate rejection of a candidate’s application to be admitted as a pupil, student or trainee or otherwise neutral admission requirements that lead to the exclusion of candidates on grounds of race, color, sex, religion, political opinion, national extraction or social origin (General Survey on Discrimin- ation, ILO, 1988, ¶81, 83), for example:

prohibiting registration in educational institutions for persons of certain religious faiths or political opinions;

forbidding students to be members of or to join associations, political parties or trade unions;

imposing political or ideological conditions as qualifying conditions for the receipt of an educational degree; and

providing access to apprenticeships to only one sex. A guidance test that emphasizes social, cultural or linguistic characteristics that are not related to job qualifications (General Survey on Discrimination, ILO, 1996, ¶77). Exception Vocational guidance and training provided to particular ethnic groups or minorities in accordance with other ILO Conventions or recommendations, for example, targeted vocational training to indigenous and tribal peoples in accordance with the Indigenous and Tribal Peoples Convention, 1989 (No. 169). However, the ILO stresses that such guidance and training should not be confined to traditional activities of these groups, thereby per- petuating occupational segregation (General Survey on Discrimination, ILO, 1996, ¶76).

8. Workers shall have equal opportunity and treatment with respect to access to all occupations and employment. The ILO defines “occupation” as the trade, pro- fession, or type of work performed by the individual, irrespective of the branch of economic activity to which he/she is attached or of his/her industrial status. “Persons in employment” includes all persons above a specified age who are “at

30 Worker Rights Standards and Violation Checklist work”; the phrase “at work” includes not only persons whose status is that of employee but also those whose status is “worker on own account,” “employer” or “unpaid family worker.” All employment and occupation—public, private or otherwise—are included in the convention’s scope. This covers all workers, including independent, non-wage and public service work, as well as work for employers’ and workers’ organizations. Collective agreements should be free of discriminatory provisions (General Survey on Discrimination, ILO, 1988, ¶76, 88, 158; General Survey on Discrimination, ILO, 1996, ¶78, 81).

Worker Rights Violations Restrictions on access to certain state posts applying to persons of a particular race, color, sex, religion, political opinion, national extraction or social origin (General Survey on Discrimination, ILO, 1988, ¶96). The use of non-objective recruitment criteria in the choice of a candidate for a job (General Survey on Discrimination, ILO, 1988, ¶83), for example:

using weight, height or physical strength as a criterion for a job if it is not necessary to perform that job;

making inquiries into a worker’s political, religious or trade union opinions in reference to a job application; and

giving priority to men in recruitment and hiring. Excluding workers in certain sectors from nondiscrimination legislation (General Survey on Discrimination, ILO, 1988, ¶87), for example:

excluding workers in the public sector from nondiscrimination legislation; and

excluding workers in enterprises that employ less than a specified number of wage earners from nondiscrimination legislation. Discrimination in access to land, credit and/or goods and services that are necessary for conducting a certain occupation (General Survey on Discrimination, ILO, 1988, ¶90), for example:

an inheritance system that excludes unmarried women without dependents; and

restricting a woman’s right to enter into contracts by a condition requiring the permission of her husband or father. Educational or other conditions required for a certain occupation (e.g., hairdresser, lawyer, midwife) that, while applied uniformly, nevertheless result in a discriminatory effect toward persons of a different race, color, sex, religion, political opinion, national extraction or social origin. This violation, which is a case of indirect discrimination, applies especially to the

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recognition of professional qualifications acquired in foreign countries (General Survey on Discrimination, ILO, 1988, ¶92). Discrimination in the provision of public or private-sector placement services (General Survey on Discrimination, ILO, 1988, ¶93). Discrimination in admission, retention of membership or participation in the affairs of employers’ and workers’ organizations (General Survey on Discrimination, ILO, 1988, ¶106). For an unsuccessful candidate, denying access to written information about the qualifications of the person who received the position, such as training or experience (General Survey on Discrimination, ILO, 1996, ¶82). Denying the right to appeal a decision refusing or rejecting a candidate for public employment. Typically, areas of abuse include national extraction, social origin, religion or political opinion (General Survey on Discrimination, ILO, 1996, ¶98).

9. Workers shall have equal opportunity and treatment with respect to terms and conditions of employment. This principle includes advancement relating to individual character, experience, ability and diligence; security of tenure, primarily including protection against unlawful dismissal; remuneration for work of equal value; and conditions of work, including hours of work, rest periods, annual holidays with pay, occupational safety and health measures, social security measures and welfare facilities and benefits. The principles of equality of opportunity and treatment should be respected in collective negotiations and industrial relations (General Survey on Discrimination, ILO, 1988, ¶76, 107, 158).

Worker Rights Violations Termination of a worker on the basis of race, color, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction, social origin or any other grounds that are not connected with the capacity or conduct of the worker or based on the operational requirements of the work (General Survey on Discrimination, ILO, 1996, ¶107). Dismissal of a person because that person has lodged a complaint with an appropriate body to enforce her/his rights in the matter of equality of treatment and opportunity or who is a party to such proceedings, e.g., a witness (General Survey on Discrimination, ILO, 1988, ¶115).

Indirect discrimination in layoffs. This violation applies when apparently neutral terms and conditions of layoff/dismissal lead to disproportionate layoffs/dismissals among a particular category of persons, e.g., laying off women workers first (General Survey on Discrimination, ILO, 1988, ¶113).

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The use of forced labor as a means of political coercion, as a punishment for holding or expressing certain political views or as a means of racial, social, national or religious discrimination (General Survey on Discrimination, ILO, 1996, ¶87). The practice of serfdom, debt bondage or other types of compulsory service with respect to indigenous and tribal peoples (even if these practices are formally abolished by law) (General Survey on Discrimination, ILO, 1996, ¶88). Unequal remuneration for either the same work or work of equal value on the basis of race, color, sex, religion, political opinion, national extraction or social origin (General Survey on Discrimination, ILO, 1996, ¶111). Discriminatory treatment regarding benefits or conditions of entitlement to social security, the application of compulsory or voluntary statutory or occupational schemes, contributions and the calculation of benefits (General Survey on Discrimination, ILO, 1996, ¶112), for example (General Survey on Discrimination, ILO, 1996, ¶178, 181):

restricting the right to take parental leave to women only; and

exclusion of female public officers from public officer insurance benefits. A system of advancement that perpetuates discrimination in promotions (General Survey on Discrimination, ILO, 1996, ¶105), for example:

an emphasis on unbroken service in selection for advancement or promotion (this would favor men over women, since women often take maternity leave); and

a method of calculating length of service that does not take into account interruptions of working life in connection with pregnancy or motherhood. These indirect forms of discrimination can be remedied by stating, for example, that absences from work due to pregnancy or confinement or related illnesses shall be treated as periods of employment for advancement purposes (General Survey on Discrimination, ILO, 1988, ¶105). Warning Sign The percentage of persons of a particular race, color, sex, religion, political opinion, national extraction or social origin in supervisory positions in a certain sector is significantly lower than the percentage of that group in the sector as a whole (General Survey on Discrimination, ILO, 1996, ¶110).

10. Employers shall take measures to protect workers’ privacy. Personal details should not be used to establish distinctions, exclusions or preferences based on race,

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color, sex, religion, political opinion, national extraction or social origin (General Survey on Discrimination, ILO, 1996, ¶114). Worker Rights Violations Collection of details concerning the sex life; the trade union membership or activities; or the political, religious or other opinions of workers (General Survey on Discrimination, ILO, 1996, ¶114). Failure to keep medical details confidential (General Survey on Discrimin- ation, ILO, 1996, ¶114). Requiring that employees or job applicants submit to medical tests unrelated to job requirements (General Survey on Discrimination, ILO, 1996, ¶114).

11. Part-time workers shall be guaranteed the same protection from discrimination that is accorded to comparable full-time workers (General Survey on Discrimina- tion, ILO, 1996, ¶115).

12. Women and men should be equally protected from risks inherent in their employment and occupation, particularly in light of advances in scientific and technological knowledge. It is the duty of the enterprise to make every reasonable effort to create a safe working environment and safe working conditions for both men and women workers (General Survey on Discrimination, ILO, 1996, ¶116).

13. Governments should include in their national legislation specific provisions guaranteeing equality without discrimination in the workplace. These provisions should include all occupations and vocations. Measures to promote the participation of certain groups or of women are not sufficient; non-discrimination legislation should be all-inclusive (General Survey on Discrimination, ILO, 1988, ¶165; General Survey on Discrimination, ILO, 1996, ¶203, 204).

Note that legislative provisions are only one aspect of the implementation of Convention No. 111. The Convention also implies that affirmative action measures should be adopted to correct de facto inequalities. (General Survey on Discrimination, ILO, 1988, ¶161).

Worker Rights Violations The exclusion of a certain occupation of workers, e.g., domestic workers, from anti-discrimination legislation (General Survey on Discrimination, ILO, 1996, ¶211, 212). The absence of national anti-discrimination legislation, e.g., a national constitution that provides that international agreements and treaties

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(such as ILO Conventions) prevail over national law but does not include its own anti-discrimination legislation (General Survey on Discrimination, ILO, 1996, ¶211, 212).

Other Grounds for Discrimination

In addition to the seven grounds for discrimination explicitly listed in Convention No. 111 (race, color, sex, religion, political opinion, national extraction and social origin), grounds such as age, nationality, trade union membership, disability and family responsibilities are included in other ILO instruments as prohibited grounds for discrimination. The relevant standards are:

Age

Maternity Protection Convention, 1919 (No. 3), Article 2

Night Work (Women) Convention, 1919 (No. 4), Article 3

Night Work (Women) Convention (Revised), 1934 (No. 41), Article 3

Night Work (Women) Convention (Revised), 1948 (No. 89) (and Protocol, 1990), Article 3

Migration for Employment Convention (Revised), 1949 (No. 97), Article 6, ¶1(a)(i)

Plantations Convention, 1958 (No. 110) (and Protocol, 1982), Article 46

Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168), Article 6

Employment (Women with Family Responsibilities) Recommendation, 1965 (No. 123), ¶9(2)

Human Resources Development Recommendation, 1975 (No. 150), ¶ 50(b)(v)

Older Workers Recommendation, 1980 (No. 162), ¶3

Termination of Employment Recommendation, 1982 (No. 166), ¶5(a)

Nationality

Maternity Protection Convention, 1919 (No. 3), Article 2

Maternity Protection Convention (Revised), 1952 (No. 103), Article 2

Plantations Convention, 1958 (No. 110) (and Protocol, 1982), Articles 2 and 46

Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168), Article 6

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Seamen’s Welfare in Ports Recommendation, 1936 (No. 48), ¶3

Vocational Training (Agriculture) Recommendation, 1956 (No. 101), ¶3(1)

Indigenous and Tribal Populations Recommendation, 1957 (No. 104), ¶35(b)

Plantations Recommendation, 1958 (No. 110), ¶2

Migrant Workers

Maintenance of Migrants’ Pension Rights Convention, 1935 (No. 48), Articles 2 and 10

Migration for Employment Convention, 1939 (No. 66)

Migration for Employment Convention (Revised), 1949 (No. 97), Article 2

Equality of Treatment (Social Security) Convention, 1962 (No. 118), Article 3

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)

Maintenance of Social Security Rights Convention, 1982 (No. 157)

Migration Statistics Recommendation, 1922 (No. 19)

Migration for Employment Recommendation, 1939 (No. 61)

Migration for Employment Recommendation (Revised), 1949 (No. 86)

Protection of Migrant Workers (Underdeveloped Countries) Recommendation, 1955 (No. 100), ¶45

Trade Union Membership

Social Policy (Non-Metropolitan Territories) Convention, 1947 (No. 82), Article 18(1) and (2)

Right to Organize and Collective Bargaining Convention, 1949 (No. 98), Article 2

Plantations Convention, 1958 (No. 110) (and Protocol, 1982), Article 2

Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117), Article 14(1) and (2)

Social Policy in Dependent Territories Recommendation, 1944 (No. 70), Article 41(3)

Plantations Recommendation, 1958 (No. 110), ¶2

Workers’ Housing Recommendation, 1961 (No. 115), ¶25

Trade union membership of migrant workers is referred to in Recommendation (No. 100), ¶38, and in the Migrant Workers Recommendation, 1975 (No. 151), ¶8(3)

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Disability

Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168), Article 6

Employment (Transition from War to Peace) Recommendation, 1944 (No. 71), Paragraph 43(3)

Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99), ¶25 and 41

Family Responsibilities

Workers with Family Responsibilities Convention, 1981 (No. 156)

Workers with Family Responsibilities Recommendation, 1981 (No. 165)

Grounds Contained in Other International Instruments

In addition to instruments adopted by the ILO, other international human rights conventions adopted since Convention No. 111 have further expanded the protection offered in international law against discrimination. In particular, both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights contain the following passage:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

On the regional level, the European Convention on Human Rights prohibits discrimination on the basis of “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Additional information on these or any other ILO Conventions is available on the ILO’s web site, www.ilo.org. Once at the ILO’s homepage, go to the database of information on conventions and recommendations, which is called ILOLEX.

37 Chapter 1

Acceptable Conditions of Work (ILO Conventions No. 131, No. 1, No. 95, No. 14, No. 106, No. 132 and No. 155)

Definition: The standards for acceptable working conditions provide for the establishment and maintenance of mechanisms, adapted to national conditions, that provide for minimum working standards (e.g., wages that provide a decent living for workers and their families and working hours that do not exceed 48 hours per week with a full 24- hour rest day, a specified annual paid holiday and minimum conditions for the protection of the safety and health of workers) (Convention No. 1, Article 2; Convention No. 14, Article 2, ¶1; Convention No. 106, Article 6, ¶1; Convention No. 132, Article 3, ¶1; Convention No. 155, Article 16, ¶1-2; General Survey on Minimum Wage Fixing of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 1992, Report III (Part 4B) [hereinafter General Survey on Minimum Wage], ¶33 & 42). Working conditions are not part of the “core labor standards” included in the 1998 ILO Declaration on Fundamental Principles and Rights at Work. However, standards on basic working conditions are included here because they are among the worker rights cited in some trade-related legislation such as Generalized System of Preferences. In addition, many of the more egregious violations in transitional countries, such as wage arrears, fall under standards on working conditions.

General Principles and Common Violations

1. There should be a national statutory minimum wage. It should be set realistical- ly, preferably as a result of an open, public or tripartite process (Convention No. 131, Article 4, ¶2-3; General Survey on Minimum Wage, ¶186-187 & 195-198). Criteria for determining the minimum wage should be as follows:

needs of workers and their families;

general wage levels in the country;

cost of living;

social security benefits;

relative living standards of other social groups; and

economic factors (e.g., requirements of economic development, productivity levels) (Convention No. 131, Article 3; ILO Recommendation No. 135, II, ¶3; General Survey on Minimum Wage, ¶274-281).

2. Wages should be protected. Wages should be paid in money (some non-monetary or in-kind payment may be acceptable). Workers should be able to choose where and how they spend their wages (Convention No. 95, Article 3, ¶1, Article 4, ¶1, Article 6 and Article 7, ¶1; Convention No. 117, Article 11, ¶2).

38 Worker Rights Standards and Violation Checklist

Worker Rights Violations Salary paid in company scrip instead of cash or check (REC, 1984, p. 171). Payment in bars, retail shops or places of amusement. (Employers have been known to operate such establishments, in which workers may be tempted to spend most of their wages before they leave. International standards also protect workers from themselves) (Convention No. 95, Article 13, ¶2). Extra legal deductions of employers (for other than taxes, social security, etc.) (Convention No. 95, Article 8, ¶1). Non-payment or late payment of wages:

No payment or partial payment (RCE, 1993, ¶248; RCE, 1989, ¶253).

Payment of less than minimum wage (RCE, 1991, ¶238-240).

Delay in payment (RCE, 1989, ¶257-258; RCE, 1984, ¶172).

3. Workers are entitled to reasonable rest periods. Working hours should not exceed 48 hours per week, with daily (or nightly) rest time, time to eat and a weekly rest that includes a full 24-hour rest day. Workers also should have a specified annual paid holiday (Convention No. 1, Article 2; Convention No. 14, Article 2, ¶1; Convention No. 106, Article 6, ¶1; Convention No. 132, Article 3, ¶1).

4. Overtime should be regulated (RCE, 1980, ¶ 38-39).

Overtime should be remunerated at a higher rate than the rate for “normal” working hours (Convention No. 1, Article 6, ¶2; ILO Recommendation No. 116, II, D, ¶19(1)).

Regulations should prohibit overtime from exceeding a certain number of hours in a given period (RCE, 1990, ¶50; RCE, 1981, ¶37).

Worker Rights Violations Employer use of overtime as a normal or permanent operational procedure to avoid hiring new employees (General Survey on the Reduction of Hours of Work of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 1984, Report III (Part 4B) [hereinafter General Survey on the Reduction of Hours], ¶39 & 69-70).

5. Workers should have health and safety rights in the workplace.

Workers should have a complaint process for calling attention to hazardous conditions.

39 Chapter 1

Workers should have the right to remove themselves from situations that they believe to be hazardous (Convention No. 155, Article 13 and Article 19(f)).

Working conditions should not be worse in EPZs than they are in the rest of the country (RCE, 1993, ¶58-61).

The possibilities for all types of risk should be reduced to a minimum (Convention No. 155, Article 16, ¶1-2; ILO Recommendation No. 164, IV, ¶10(a)).

Regulations on work conditions designed as special protective measures for women (pregnancy and maternity) should be balanced with the principle of equal treatment (Protocol of 1990 to Convention No. 89; Convention No. 171; General Survey on Night Work of Women in Industry of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 2001, Report III (Part 1B), ¶200-201).

6. The government should set health and safety standards as part of an open, public or tripartite process (Convention No. 155, Article 4).

7. There should be a legislatively mandated enforcement system for minimum wage, hours of work and safety and health. This includes hiring and training sufficient inspectors (Convention No. 81, Article 3, ¶1(a) & Article 10; Convention No. 131, Article 5; ILO Recommendation No. 135, VI, ¶14(b); General Survey on Minimum Wage, ¶363).

Worker Rights Violations Too few labor inspectors vis-à-vis the total number of enterprises. Untrained inspectors. A low number of penalties. A low number of reported violations.

8. Inspectors should have the right to enter the workplace during working hours without advance notice (Convention No. 81, Article 12, ¶1(a)).

9. Inspectors should have access to workers and their representatives (ILO Recommendation No. 81, II, ¶5).

10. Workers and unions should be protected against adverse action should they file a complaint about working conditions (Convention No. 81, Article 15(c); Convention No. 158 Article 5(c); ILO Recommendation No. 164, IV, ¶12(2)(d)

40 Worker Rights Standards and Violation Checklist

& 17; General Survey on Labour Inspection of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 1985, Report III (Part 4B), ¶201-203).

11. Inspectors should have the right to issue citations for violations (Convention No. 81, Article 13).

12. Penalties for violations should not be limited to warnings but should include fines and prison sentences. The penalty’s objective is to act as a deterrent (Convention No. 18, Articles 17 & 18; Convention No. 131, Article 2, ¶1).

Flexibility in Applying the Standards

The ILO allows for some flexibility in how some standards are applied, taking into account differences in levels of economic development. This flexibility is well summarized in Appendix B of the U.S. State Department’s 2002 Country Reports on Human Rights Practices, which states:

Differences in the levels of economic development are taken into account in the formulation of internationally recognized labor standards. For example, many ILO standards concerning working conditions permit flexibility in their scope and coverage. They also may permit governments a wide choice in their implementation, including progressive implementation, by enabling them to accept a standard in part or subject to specified exceptions. Governments are expected to take steps over time to achieve the higher levels specified in such standards. However, this flexibility applies only to internationally recognized standards concerning working conditions. The ILO permits no flexibility in the acceptance of the basic human rights standards, that is, freedom of association, the right to organize and bargain collectively, the prohibition of forced labor and the absence of discrimination.

Since Convention No. 182 (Worst Forms of Child Labor) appears to fall under the “basic principles contained in human rights standards,” it should not allow for flexibility in implementation. However, as of this writing, an authoritative statement to this effect had not been found.

ENDNOTES

1 Convention No. 182 does not have “case history” as such, but the ILO has produced a series of what it calls “Rapid Assessments” on the worst forms of child labor in several countries. These

41 Chapter 1

examine such issues as children in bondage, child domestic workers, child soldiers, child trafficking, drug trafficking, hazardous work in commercial agriculture, fishing, garbage dumps, mining and the urban environment, sexual exploitation and working street children. The countries included in the rapid assessment reports are: Brazil, Jamaica, Nepal, Sri Lanka, Tanzania, Thailand, Laos, Burma and Turkey. The reports are available at www.ilo.org/public/english/ standards/ipec/simpoc/ra. 2 See Forced Child Labor Advisory Manual, U.S. Customs Service, December, 2000, pp. 3-8. http://www.cbp.gov/ImageCache/cgov/content/publications/redflag1_2epdf/v1/redflag1.pdf. July 13, 2002. 3 For example, the Maternity Protection Convention, 1919 (No. 3). For more detail and examples, see the General Survey on Discrimination, ILO, 1988, ¶140-5. 4 For more detail and examples, see the General Survey on Discrimination, ILO, 1988, ¶146-56. 5 More detailed information on ILO standards for vocational guidance programs can be found in the Human Resources Development Recommendation, 1975 (No. 150) (General Survey on Discrimination, ILO, 1988, ¶ 75).

42 Chapter 2

History of Worker Rights Everyone has the right to work, to free choice of employment, to just and favorable conditions of work, and to protection against unemployment.

—United Nations Universal Declaration of Human Rights, 1948 History of Worker Rights

The earliest ties between worker rights and trade can be found in the laws passed to prohibit the slave trade. The Peace Treaties of Paris of 1814 and 1815, the Declaration of the Congress of Vienna of 1815 and the Declaration of Verona of 1822 incorporated the general idea that the slave trade was abhorrent to justice and humanity, admonished nations worldwide to prohibit it and enjoined the signatory countries to take action against it. Although the U.S. Congress passed a law prohibiting the importation of slaves on March 2, 1807, the law was unenforceable and the practice continued. Following the Civil War, in 1865, the 13th amendment to the U.S. Constitution, which prohibited slavery or involuntary servitude, was adopted.

Other treaties—including those of 1831 and 1833 between France and Great Britain, the Treaty of London of 1841 and the Treaty of Washington of 1862—covered joint action at sea to suppress the slave trade and afforded mutual rights to visit, search and capture ships suspected of participating in slave trade enterprises. Finally, in the late 19th century, the General Act of the Berlin Conference of 1885 and the General Act of the Brussels Conference of 1890 attempted to suppress the institution of slavery itself as well as slave trading. These were the first attempts to regulate international trade on moral grounds.

Early legislation linking a labor issue to an unfair trade practice was passed in 1890, when the United States banned the import of all foreign goods made by convict labor. The international community demonstrated its concern for occupational safety and health in 1906 at the Berne Conference by adopting a convention requiring its signatories to prohibit the manufacture, sale and import of white phosphorus matches, which were poisoning workers during the production process. In 1912, the U.S. followed suit by banning the import and export of the matches and discouraging their domestic production through a special tax.

International Labor Organization (ILO)

The international community confirmed its support for worker rights principles in 1919, stating in the Treaty of Versailles that signatories would “endeavor to secure and maintain fair and humane conditions of labor for men, women and children, both in their own countries and in all countries to which their commercial and industrial nations extend ….” The treaty further established the International Labor Organization (ILO) to promote and improve working conditions by adopting standards called “conventions.” Although the United States did not join the League of Nations, it did participate in the ILO. In fact, Woodrow Wilson appointed Samuel Gompers, president of the American Federation of Labor (AFL), as the first U.S. representative to the organization. The first ILO Convention, also adopted in 1919, limited the hours of work in industry to eight per day and no more than 48 per week.

The ILO is a tripartite organization consisting of government, employer and worker representatives. Since its creation, it has led a worldwide effort to set and monitor fair international labor standards. Although it monitors compliance, it has no enforcement authority.

45 Chapter 2

Countries that ratify conventions are expected to incorporate them into their national laws and comply with them through national labor law enforcement.

Conventions No. 87 and No. 98, which address freedom of association and protection of the right to organize and bargain collectively, have long been treated as binding on all ILO member countries whether or not they have ratified those conventions. In 1998, the ILO adopted a formal Declaration on Fundamental Principles and Rights at Work, which elevated other issues—prohibitions on forced labor, limits on child labor and nondiscrimination—to the same status. These principles have come to be called the “core labor standards.” All member countries are bound to the Declaration and its principles as outlined in Section 2 of the Declaration, which states that “all Members, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions ….” However, being bound to the principles is still one step removed from being bound to the specific terms of each convention.

The ILO’s 1998 Declaration defined core standards as:

freedom of association and the effective recognition of the right to collective bargaining;

the elimination of all forms of forced or compulsory labor;

the effective abolition of child labor; and

1 the elimination of discrimination with respect to employment and occupation.

References to core labor standards sometimes speak of four standards, or six, seven or eight such standards; the confusion arises becuse the ILO has more than a single relevant convention on the four core issues contained in the Declaration—two on forced labor, two on child labor, two or more on freedom of association and collective bargaining (which are taken to include the right to organize) and two or more on discrimination. Readers who come across references to differing numbers of “core” standards should keep this fact in mind. The consensual “core” is contained in items (a)–(d) of the ILO Declaration.

Although the ILO has no enforcement authority, its supervisory system provides a way to focus international public attention on the conditions of oppressed working people around the world. Each year the ILO’s independent Committee of Experts examines reports submitted by countries concerning their law and practice for conventions they have ratified. On the basis of its review, the Committee publishes an annual report that includes “observations” on worker rights problems. A number of these observations are discussed in turn by the Conference Committee on the Application of Conventions and Recommen- dations, which may highlight the most serious cases for the special attention of the Conference.

46 History of Worker Rights

The ILO, through the Committee on Freedom of Association, also reviews complaints submitted by member countries and worker and employer organizations concerning violations of ratified standards or of the freedom of association principle. It investigates these complaints by seeking additional information from the employers, unions and governments concerned. Occasional extreme situations result in visits by “ILO missions” to the country in question. The ILO then reports all the information that has been gathered and offers its conclusions. Since it has no enforcement authority, it must rely solely on moral pressure to make headway in raising labor standards around the world.

The 1998 Declaration created a follow-up mechanism with new measures requiring self-reporting by all members on compliance with the core labor standards. Annual reports are summarized and analyzed, with recommendations and technical assistance provided to governments that are having problems complying with the standards. In its 1999 report on the Declaration, the United States acknowledged for the first time that it falls short of full compliance with its obligations concerning the right to organize. The reports are issued under the title “Your Voice at Work.” The first ILO summary and analysis of country reports, on freedom of association and the right to bargain collectively, were issued in 2000. The second report, on forced labor, was issued in 2001. The third report, on child labor, was issued in 2002. The fourth report, on nondiscrimination, was issued in 2003. These reports are posted on the ILO’s web site at www.ilo.org/public/english/standards/decl/publ/review/index.htm.

ILO World Commission on the Social Dimension of Globalization

On Feb. 27, 2002, ILO Director General Juan Somavia, together with Tanzania’s President Benjamin William Mkapa and Finland’s President Tarja Kaarina Halonen, launched the World Commission on the Social Dimension of Globalization. The 21- member commission aims to use the globalization process to reduce poverty and unemployment and to foster growth and sustainable development. It will try to determine how all international organizations can contribute to a more inclusive, just globalization process. Somavia has invited IFIs, including the IMF and the World Bank, as well as the WTO to participate in the commission’s work.

Commission members include politicians, academics, social “experts” and Joseph Stiglitz, former Chief Economist at the World Bank. Labor representatives include AFL-CIO President John Sweeney and Zwelizima Vavi, general secretary of the Congress of South African Trade Unions (COSATU). The commission is serviced by a special secretariat established by the ILO.

The Birth of the United Nations

At the end of World War II the severity of the consequences of world conflict fueled an explosion of international interest in cooperation on matters of mutual concern. As a result, in 1945 the United Nations (UN) rose from the ashes of the League of Nations.

47 Chapter 2

Links between labor policy and trade surfaced again in 1947, when the General Agreement on Tariffs and Trade (GATT) was established. The GATT’s preamble affirms that “relations among countries in the field of trade and economic endeavor should be conducted with a view to raising standards of living and ensuring full employment.”

In 1948, The UN General Assembly adopted a Universal Declaration of Human Rights. The declaration was drafted by the UN Human Rights Commission under the chairman- ship of Eleanor Roosevelt. Unlike treaties, the declaration is not binding; rather it serves as a statement of principles and as a common standard of achievement. It has now been accepted by all UN members, and the United States uses it as a basis to formulate U.S. foreign policy. The declaration includes the following specific worker rights:

[E]veryone has the right to work, to free choice of employment, to just and favorable conditions of work, and to protection against unemployment … everyone who works has the right to just and favorable remuneration insuring for himself and his family an existence worthy of human dignity and supplemented, if necessary by other means of social protection (or everyone has the right to a standard of living adequate for the health and well-being of himself and of his family) … everyone has the right to freedom of association … everyone has the right to form and join trade unions for the protection of his interests … everyone has the right to rest and leisure including reasonable limitation of working hours and periodic holidays with pay.

Meanwhile, in 1946, the ILO became a specialized agency of the UN, when its activity expanded tremendously. Its membership increased, it began its technical cooperation program, and it began to adopt many of its key labor standards. The most fundamental of all worker rights, the right to freedom of association (Convention No. 87) and the right to organize and bargain collectively (Convention No. 98), were adopted in 1948 and 1949, respectively. The aim of Convention No. 87 is to ensure the freely exercised right of workers and employers, without distinction, to organize for furthering and defending their interests. The purpose behind Convention No. 98 is to protect workers who are exercising their right to organize; to protect workers’ and employers’ organizations against interference by each other; and to see that governments promote voluntary collective bargaining. (For more information on ILO Conventions, see Chapter 1 and Appendix B.)

After the UN adopted the 1948 Universal Declaration of Human Rights, an effort to con- vert its principles into a binding treaty prompted the drafting of the UN Covenant on Economic, Social and Cultural Rights, which included more detail than past UN documents on principles of freedom of association and working conditions. The UN General Assembly did not adopt the covenant until 1966, and it did not enter into force until 1976, after 35 countries had ratified it. Also in 1966, the UN General Assembly adopted the International Covenant on Civil and Political Rights, which covers forced labor in Article 8 and freedom

48 History of Worker Rights of association and the right to form and join trade unions in Article 22. (The United States has signed but not ratified these covenants. In policy statements the United States has characterized “economic, social, and cultural” rights as goals to be achieved progressively, in distinction to “civil and political rights,” which must be implemented immediately.)

Increasingly, then, the global community began to include worker rights principles in international policy. Most of this activity was spurred by the international trade union movement and allied human rights advocacy groups. Until recently, however, international agreements that included such principles represented only “good faith” guidelines, offering no real incentive for compliance or any penalty for violators aside from international approval or disapproval. Moreover, some of the most prominent members of the ILO—including the United States—have not yet ratified some of the most basic conventions.

The American labor movement’s involvement with the ILO goes back to the days of AFL President Gompers, who chaired the commission that drafted the ILO Constitution in 1919. Gompers helped create the ILO in the belief that democracy and its principles, especially worker and human rights, are indissolubly linked to peace. Today, it is clear that democratic nations are the most reliable defenders of peace.

The United States joined the ILO in 1934. As a signatory of the ILO Constitution it is automatically bound to the basic principles of freedom of association and protection of the right to organize. As a champion of the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work, the United States also committed itself to comply with prohibitions on forced labor, limitations on child labor and nondiscrimination in employment.

Before 1988, the United States had ratified only seven of the more than 160 ILO Conventions then drafted. U.S. non-ratification subjected its government to a great deal of criticism both domestically and abroad. America, critics said, should not try to force other countries to do what she will not do herself. Defenders of the U.S. position claimed that American legislation met or exceeded the basic worker rights standards anyway, but American unions did not agree. Finally, in 1985, an agreement between the U.S. government, the AFL-CIO and American business groups made it possible for the United States to begin to ratify conventions. Since 1988, the United States has ratified seven more ILO Conventions, which now are 184 strong, including two of the “core” conventions—Convention No. 105 on forced labor and Convention No. 182 on the worst forms of child labor.

The ILO’s mission today is the same as it has always been: to stand up for worker rights, establish and enforce international labor standards and remain true to its founding principles. The ILO is stepping up efforts to encourage all member countries to ratify at least the conventions that cover basic worker rights or core labor standards, including freedom of association and the right to organize and bargain collectively (Conventions No. 87 and No. 98), the abolition of forced labor (Conventions No. 29 and No. 105) and child labor (Conventions No. 138 and No. 182) and nondiscrimination (Conventions No. 100 and No. 111).

49 Chapter 2

The ILO has also developed a poster announcing the Declaration and its principles. The International Confederation of Free Trade Unions (ICFTU) has launched a global campaign to distribute the poster through its affiliates to the world’s workplaces to notify workers about their basic rights. Since 2001, the AFL-CIO has distributed thousands of these posters, which have been translated into numerous languages, and has sponsored supplemental educational activities to broaden the impact of this global campaign.

Worker Rights in the Era of Free Trade

For many years, efforts to improve respect for worker rights were essentially limited to moral pressure through organizations such as the ILO and to indirect influence through foreign aid. However, during the 1980s, legislation that made trade conditional upon governments’ observance of worker rights began to emerge.

Despite its reluctance to ratify international conventions or agreements on labor rights, the United States has been a leader in promoting the inclusion of worker rights protections in unilateral trade programs as well as in bilateral and multilateral trade agreements. This policy has given rise to charges that the United States is hypocritical, making demands on other countries to respect internationally recognized worker rights without ratifying relevant international instruments itself.2 The hypocrisy charge is especially acute when worker rights violations occur on a wide scale in the United States while government enforcement practices fail to prevent or remedy them.3

Opponents of laws that place conditions on trade see all such measures as thinly veiled attempts at protectionism and an effort to deprive developing countries of their comparative advantage in low-cost labor. They believe that supporters of worker rights conditions are trying to raise labor standards around the world immediately (particularly wage levels) to the level held by developed countries in an attempt to keep jobs from moving to other markets.

However, the truth is that the equalization of wages is not intended; the difference in wages between developed and developing countries is too great for that. The principal issue is that workers must be free to negotiate wages and other conditions appropriate to each country. Indeed, the hypocrisy problem mentioned above is not peculiar to the United States. Charges of protectionism are often hurled by leaders of developing countries and the business elite, who profit from worker exploitation and undemocratic governance and, thus, have no interest in improving the lot of their working people.

In fact, these laws are intended to discourage the pursuit of economic advantages that may be gained through denial of basic worker rights. They serve to ensure that the gains from trade may be broadly distributed in national economies and that in the process, increased respect for worker rights will be promoted everywhere. In addition, labor movements tend

50 History of Worker Rights to elicit such valuable social investments as education and health, which develop human resources in a way that makes for balanced growth.

Worker rights language can be incorporated into trade instruments in two ways. First, through unilateral trade benefits, such as the Generalized System of Preferences (GSP), one country may grant another country certain trade benefits, but the recipient is required to uphold certain standards such as respect for worker rights. The inclusion and enforcement of these clauses are completely up to the country granting the trade benefit.

Worker rights clauses also may be incorporated into bilateral, regional or multilateral trade agreements such as the U.S.-Jordan Free Trade Agreement, the North American Free Trade Agreement (NAFTA), the proposed Free Trade Area of the Americas (FTAA) or the World Trade Organization (WTO). However, the inclusion of such clauses must be agreed upon by all parties involved in the agreement, and although the number of trade agreements has begun to proliferate, it has been more difficult to secure the inclusion of worker rights provisions in them as their scope widens to take in more countries.

In this regard, the Trade Act of 2002, which includes Trade Promotion Authority (TPA),4 has been controversial among worker rights proponents. TPA delegates congressional authority over trade to the executive branch. Under fast track terms, any trade agreement negotiated by the executive branch must be voted up or down by Congress with no amendments. Without fast track, individual members of the House or Senate may propose amendments to protect their local industries or amendments on other issues such as worker rights. The fact that NAFTA had damaged U.S. jobs and wages and persistent anti- NAFTA campaigning by the trade union movement had been key factors in the defeat of fast track negotiating authority for President Clinton in 1997 and 1998, as well as President Bush’s initial inability to win approval of fast track authority.

The act, which is now the principal legal framework governing U.S. trade, does include as a negotiating objective the promotion of worker rights in other countries—consistent with ILO core labor standards. H.R. 30055 stipulates that future TPA agreements should ensure that U.S. trading partners do not systematically fail to enforce their labor laws in a manner that affects their trade with the United States. It also calls for the U.S. government to provide capacity-building programs and technical assistance designed to promote trading partners’ ability to enforce and elevate their labor standards. The act also reauthorizes and expands the Andean Trade Preference Act (ATPA) through 2008, amends the African Growth and Opportunity Act (AGOA) to extend benefits to selected apparel products and reauthorizes the GSP through 2006.

Although the law affirms the significance of respect for worker rights in trade agreements, worker rights standards and enforcement procedures in trade agreements (such as the U.S.-Chile and U.S.-Singapore Free Trade Agreements) negotiated since the law’s passage are relatively weak. The government has not demonstrated any intention to

51 Chapter 2

include stronger language in agreements currently being negotiated. The report of the high-level Labor Advisory Committee for Trade Negotiations and Trade Policy on the draft agreements for Chile and Singapore6 noted that the agreements “clearly fall short of meeting the important negotiating objective in TPA requiring that equivalent dispute resolution procedures and remedies be available for the labor, environmental and commercial provisions of any trade agreement.” The report further states that the labor provisions in these agreements actually “move backward from the labor provisions of our unilateral trade preference programs and the U.S.-Jordan Free Trade Agreement” and are based on an “unacceptably narrow interpretation of the negotiating objectives on labor laid out in the TPA, providing no meaningful protection for workers’ rights.”

Chapters 3, 4 and 5 will review U.S. unilateral, multilateral and global trade agreements. These sections will examine the agreements’ worker rights provisions, how they have been enforced, and what their impact has been on improving respect for worker rights.

ENDNOTES

1 See ILO Declaration on Fundamental Principles and Rights at Work and Its Follow-Up, adopted by the International Labour Conference at its 86th Session, Geneva, June 18, 1998, p. 7.

2 See Philip Alston, “Labor Rights Provisions in U.S. Trade Law: ‘Aggressive Unilateralism?,’” in L. Compa & S. Diamond, eds., Human Rights, Labor Rights and International Trade (University of Pennsylvania Press, 1996).

3 See Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States Under International Human Rights Standards (2000).

4 See “Trade Act of 2002,” http://www.tpa.gov/pl107_210.pdf.

5 See “Fast Track Trade Authority Bill,” http://thomas.loc.gov/bss/d107query.html.

6 See “The U.S.-Chile and U.S.-Singapore Free Trade Agreements: Report of the Labor Advisory Committee for Trade Negotiations and Trade Policy (LAC),” Feb. 28, 2003, http://www.aflcio.org/mediacenter/prsptm/upload/chili_report.pdf..

52 Chapter 3

Worker Rights and Unilateral Trade Benefits The history of GSP implementation has been plagued with efforts to ignore the law’s intent when politically convenient. Worker Rights and Unilateral Trade Benefits

In the 1980s, the United States was the first government to include worker rights protections in unilateral trade benefits. For the first time, in order to export certain goods duty-free to the United States, countries were required to ensure (or take steps to ensure) the protection of certain worker rights. Later the European Union (EU) would add requirements to its unilateral trade benefits, increasing the pressure on some developing countries to protect worker rights. This chapter introduces unilateral trade benefits by surveying their history, contents and impacts.

Caribbean Basin Initiative (CBI/CBERA) — 1983

The first U.S. law in recent history to condition trade benefits on worker rights was the Caribbean Basin Economic Recovery Act (CBERA), or Caribbean Basin Initiative (CBI), which was passed in 1983. The legislation, which sought to promote economic revitalization and to expand private sector opportunities in the Caribbean region, designated certain Caribbean countries eligible for duty-free benefits on their exports to the United States.

The AFL-CIO, however, was concerned that irresponsible firms in the region might gain an unfair advantage by exploiting their workers and denying their rights. CBI proponents tried to assuage AFL-CIO concerns by directing the U.S. executive branch, when determining a country’s eligibility, to “take into account the degree to which workers in such country are afforded reasonable workplace conditions and enjoy the right to organize and bargain collectively.”

The problem, however, was that these criteria were discretionary and, for years, little action was taken to enforce the provision. In 1990, CBI was renewed and worker rights criteria became a mandatory part of the eligibility designation process. These worker rights guidelines conform to those contained in the Generalized System of Preferences legislation, which is discussed below.

Despite its weaknesses, the CBI rendered the first improvements from measures linking worker rights to trade. The application of this law was less controversial than that of later laws because countries received privileges upon meeting qualifications that included some worker rights, as opposed to revoking existing privileges for failing to protect those rights. The CBI process began with U.S. expert consultations with Caribbean countries, where the designation criteria were explained. A country’s application for CBI status would then trig- ger a U.S. review of the extent to which it afforded its workers freedom of association, the right to bargain collectively, freedom from forced labor and child labor and provisions for minimum wage and workplace safety in both law and practice.

In the early 1980s, some Caribbean nations were persuaded to modify some of the objectionable clauses in their labor codes so that they could be certified for participation in CBI. For example, in 1984 the governments of both Haiti and Guatemala approved the full recog-

55 Chapter 3

nition and certification of unions in order to obtain CBI certification. Such high-level action, although taken reluctantly, allowed unions independent of government control to come into existence. In both cases, the CBI Interagency Task Force applied the labor criterion as a central element in its determinations qualifying these countries for beneficiary status.

U.S. Generalized System of Preferences (GSP) — 1984

The U.S. Generalized System of Preferences (GSP) program, initiated in 1974, was renewed for 10 years in 1984 with new language on the protection of worker rights. The law, which was extended retroactively once again in 1996, expired in September 2001, and the cases that were still pending remained on hold. GSP was renewed in August 2002, as part of a larger trade-related bill.

The GSP law authorized the president to grant duty-free treatment to eligible imports from beneficiary developing countries, making it easier for them to compete in the U.S. market. By exporting more to the United States, the developing countries could earn the foreign exchange needed to import capital goods necessary for their own industrializa- tion and growth. The other industrialized countries did not enjoy such preferences and had to pay prevailing tariffs whenever exporting to other countries. The developing countries thus gained a competitive advantage over the industrialized nations in trade with the United States.

The renewal GSP legislation in 1984 amended the conditions for beneficiary status and added several new requirements, including respect for worker rights:

[T]he President shall not designate any country as a beneficiary developing country … if such country has not taken, or is not taking, steps to afford internationally recognized worker rights to workers in the country (including any designated zone in that country).

The worker rights cited under the law include:

the right of association;

the right to organize and bargain collectively;

a prohibition on the use of any form of forced or compulsory labor;

a minimum age for the employment of children; and

acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.

The intent behind the act was clearly illustrated in the U.S. House Ways and Means Committee Report by the authors of the bill:1

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The Committee believes that promoting respect for the internationally recognized rights of workers is an important means of ensuring that the broadest sectors of the population within BDCs [beneficiary developing countries] benefit from the GSP program.

The capacity to form unions and to bargain collectively to achieve higher wages and better working conditions is essential for workers in developing countries to attain decent living standards and to overcome hunger and poverty. The denial of internationally recognized worker rights in developing countries tends to perpetuate poverty, to limit the benefits of economic development and growth, to narrow privileged elites and to sow the seeds of social instability and political rebellion.

The House Conference Report stipulates that:2

It is the intention of the Conferees that this definition of internationally recognized worker rights be interpreted to be commensurate with the development level of the particular country, but that each element of the definition be reviewed with respect to the determination required by section 503(c)(3) of this bill.

It is not the expectation of the Committee that developing countries come up to the prevailing labor standards in the United States and other highly- industrialized developed countries. It is recognized that acceptable minimum standards may vary from country to country. However, the Committee does expect the President, in granting duty-free access to the U.S. market, to require that any developing country specifically demonstrate respect for the internationally recognized worker rights of its workers.

Any “interested party” can submit a petition to the U.S. government calling for denial of GSP benefits to certain foreign countries on the grounds that they violate their worker rights. The Office of the U.S. Trade Representative (USTR) receives such petitions on June 1 each year or at other designated intervals. Investigations concerning the worker rights laws and practices of individual countries are conducted by the interagency GSP Subcommittee (of the Trade Policy Staff Committee [TPSC]), which includes members from the USTR and the Departments of State, Labor, Commerce, Treasury and Agriculture, among others. This subcommittee decides whether or not to accept petitions for review.

To date, the AFL-CIO has been the most active organization in submitting petitions. Others have included the International Labor Rights Fund (ILRF), the Lawyers Committee on Human Rights, human rights organizations such as Human Rights Watch, and various trade unions and church groups. Before submitting a petition, the AFL-CIO and most other petitioners work with free trade unions and their allies in the country to determine the effects of a petition on efforts to improve respect for worker rights.

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Petitions accepted for review are analyzed on the basis of data received from a number of sources. One such source is a public hearing held by the USTR, where groups can testify concerning the worker rights situations in the countries under investigation. In addition, petitions are weighed against information in the U.S. State Department’s annual Country Reports on Human Rights Practices, special reports from U.S. embassies and consulates abroad, ILO findings and other information as appropriate.

The subcommittee analyzes the information to determine whether a country is “taking steps,” and it establishes what constitutes progress in each case. It may decide to continue the investigation for another year. It then makes its recommendations to the president, who makes the final decision on whether to remove GSP preferences from a country. In April of the following year, the USTR announces the decisions concerning whether GSP benefits of the countries under review will be continued, suspended or permanently revoked. Once a country’s GSP privileges have been removed or suspended, it must re- apply for eligibility. The process for reinstating its eligibility follows essentially the same procedures used in determining whether to remove a beneficiary country from GSP.

Since the adoption of the GSP worker rights amendment in 1984, the United States has conducted more than 100 country reviews on whether countries were taking steps to afford worker rights to workers in those countries. Allowing for repeat reviews of the same country, nearly 50 different countries have come under worker rights scrutiny in the GSP process. As a result, the GSP beneficiary status of 14 countries has been suspended because of worker rights violations. More than a dozen other countries have been placed on a temporary extension with continuing review.

The first 15 reviews were part of a “general review” process mandated by the 1984 law. Petitions filed by worker and human rights groups prompted more than 60 additional country reviews. The most active petitioners were the AFL-CIO; AFL-CIO affiliates including the International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers (IUE, now part of the Communications Workers of America) and the United Food and Commercial Workers International Union (UFCW); the independent Union of Electrical Workers (UE); the ILRF; and divisions of Human Rights Watch— Asia Watch, Africas Watch and Americas Watch.

Several of the suspended countries undertook labor reform measures to meet GSP requirements, and the review process persuaded others to make improvements, too. Notably, GSP benefits were suspended for Chile and Paraguay in 1987, when those countries were under military rule. The benefits cutoff shocked business elites and contributed to the restoration of democracy, including more freedom for workers.

In Guatemala, pressure generated by the GSP review helped gain the first union recognition and collective bargaining agreement in that country’s maquila sector. Similar progress was made in the Dominican Republic, where unionism began taking root in the export processing zones (EPZs) there. The GSP review in Indonesia helped spur inter-

58 Worker Rights and Unilateral Trade Benefits nal changes in the labor movement that weakened the Soeharto-controlled monopoly trade union. An unusual decision to remove GSP from Pakistan only on selected items —soccer balls, carpets and surgical instruments—led to the establishment by the International Labor Organization (ILO) of a process to monitor child labor in the soccer ball industry.

These developments should not suggest that the GSP worker rights amendment, or any other worker rights amendment in the U.S. trade laws, has gone from triumph to triumph. Trade unions in Chile and Paraguay still face terrible obstacles, and Guatemala has not overcome the legacy of four decades of military terror. One or two labor contracts in Guatemala’s rapidly growing export sector or a handful of contracts in the Dominican Republic’s zonas francas hardly constitute trade union growth and dynamism. In fact, the mixed results of Chile’s suspension, Guatemala’s continuing review, the non-review of Malaysia and abandoned review of Indonesia reflect the complexities of unilateral U.S. international worker rights policy using the GSP. The GSP experience has given rise to several powerful critiques of U.S. policy in particular and of unilateralism in labor rights policies generally.

One criticism raised by international law specialists is that U.S. trade statutes such as the GSP invoke “internationally recognized worker rights” without tying them to any source of international recognition, such as United Nations (UN) or ILO norms. Instead, Congress simply listed a set of worker rights. The list excluded nondiscrimination, which is now one of the universally recognized core labor standards, while including working conditions, which are outside the core group, and “cost items” such as minimum wage, hours of work and safety and health. This discrepancy was widely regarded as the U.S. government’s effort to avoid being bound to comply with conventions it had not yet ratified or avoid the obligation to use the conventions in its deliberations. Accordingly, although the principles used to define worker rights were actually based on ILO standards, U.S. officials did not create a binding link.

A second criticism of such legislation is that Congress has set rules for other countries that those countries had no voice in creating. A general principle in international law is that countries are bound only by treaties that they sign and ratify, especially when they face punishment. The problem is compounded where, as here, a big and powerful country like the United States is laying down norms for economically struggling nations, threatening to deprive them of a small but important advantage in trade access to the U.S. market. The GSP worker rights law is considered by critics to be another example of “aggressive unilateralism.” Proponents of the law counter that argument, saying that a country conferring privileges has the right to set ground rules.

A third argument from critics addresses due process flaws in the U.S. statutory scheme. Under current law, the USTR decides whether to accept the case (a prosecutor’s role) or hear the case (a judge’s role). The USTR also decides whether or not a country is “taking steps” in compliance with the statute (a jury’s role) and applies the sanction (an executioner’s role).

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The implementation history of GSP, where successive U.S. administrations have made only selective use of worker rights provisions, clearly reveals the inherent flaws in this structure. In its early decisions, the USTR imposed a series of arbitrary restrictions on the process as well as an extremely legalistic interpretation of the law and regulations. This approach made it possible to exempt some countries from experiencing the embarrassment of a review and others from the application of sanctions, thus sparing the president from invoking economic considerations.

For example, to protect international political and economic considerations, the United States absolved Indonesia and Malaysia despite blatant worker rights violations, including the killing of labor activists and suppression of independent trade unions. In addition, the USTR refused to accept petitions against El Salvador and Guatemala, where death squads kidnapped and killed trade union leaders, often after threatening them because of their union activity. The administration’s view was that although the victims’ human rights were certainly violated, it was not clear that their worker rights had been violated because there was no proof that they had been kidnapped or killed specifically for their trade union activity. Since it was highly unlikely that the perpetrators of these crimes would come forward to clarify precisely why they had kidnapped or killed these victims, the petitioners were faced with looking for new ways of showing a direct connection between union leaders’ labor activities and the reprisals that followed.

The history of GSP implementation has been plagued with efforts to ignore the law’s intent when politically convenient. In fact, geopolitics and foreign policy have often been the true criteria, not the merits of a country’s compliance or non-compliance with the law. The process provides a classic example of unchecked administrative authority.

The fourth problem is the lack of uniformity in U.S. law and in U.S. ratification of international law on these issues. Clear and internationally accepted worker rights can indeed be found in instruments like UN covenants and ILO Conventions, which have been ratified by many countries, and in the ILO 1998 Declaration on Fundamental Principles and Rights and Work. But the United States has not ratified the UN’s most extensive statement of worker rights in the International Covenant on Economic, Social and Cultural Rights, and of the ILO’s eight “core” worker rights conventions, the United States has ratified only one on forced labor and one on child labor. It has not ratified the conventions governing nondiscrimination in the workplace. It has not even ratified the most basic worker rights conventions covering freedom of association and the right to organize and bargain collectively (although it is bound as an ILO signatory to protect these rights).

The traditional U.S. government defense on these issues is that it does not have to ratify international instruments because its laws already bring it into compliance. Successive U.S. administrations have suggested that it is better to abide by the conventions without ratifying them than it is to ratify them while routinely violating them, as many countries do.

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This position would have weight, if indeed the United States lived up to the international standards. But the record shows otherwise. Hundreds of U.S. workers are fired each year for trying to form or join trade unions. Employers routinely threaten to close plants and move jobs overseas if workers unionize. Collective bargaining is outlawed in many states for public employees. In addition, thousands of U.S. workers are killed, maimed or sickened by industrial accidents and occupational disease.

The United States also fails to meet the ILO standards on protecting the right to strike. Essentially, this right is negated by a “permanent replacement” doctrine, which allows companies to hire new workers and replace striking employees. In addition, U.S. workers’ freedom of association through solidarity initiatives is outlawed by “secondary boycott” laws. Such laws prohibit workers and trade unions in “secondary” companies, such as suppliers or customers of a “primary” firm in a labor dispute, from striking or picketing to support workers at the primary firm. Furthermore, a resurgence of “sweatshop” garment factories, marked by child labor and minimum wage violations, is growing in many U.S. cities with large immigrant populations. Finally, prisons are increasingly turning to production for commerce to sustain their operations, a practice that often runs counter to standards on prison labor.

In effect, through its structure and application of the GSP law, the United States has failed to accept the international definition that it was instrumental in creating. And it systematically violates that international definition—including the standards that it has not yet ratified as well as the standards by which it is bound as an ILO signatory. Critics deplore this hypocrisy.

These are all powerful criticisms. However, if worker rights advocates had waited for a per- fect process with swift, consistent enforcement, nothing would have ever been accomplished. The truth is that in concrete measure, and sometimes in life-or-death cases, unilateral worker rights actions by the United States have made a difference.

Accordingly, these legitimate criticisms are arguments for improving the GSP worker rights law and procedure, not for scuttling it. First, GSP is a preferential program created solely by U.S. law. International trade rules allow such preferential programs for developing countries, which would otherwise violate World Trade Organization (WTO) equal treatment rules. But they do not mandate such programs, and industrialized countries are free to establish them with whatever norms and procedures they choose. In this context, American workers have a right to demand conditions for preferential trade programs from their government.

A U.S. law that fully complies with international norms that are ratified and applied by the United States would indeed be the optimal approach to unilateral action on worker rights in trade. For the AFL-CIO, U.S. ratification of UN covenants and ILO conventions is higher on the agenda of the American labor movement than it has ever been. But given the current aversion to any restraints on free trade and a more general aversion to international treaties constraining U.S. powers, the legal situation is likely to remain unresolved for the foreseeable future.

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The following pages review recent cases filed between 1999 and 2001. They reflect the continued importance of the GSP as a policy tool, regardless of whether or not the results are what petitioners seek.

Bangladesh

The AFL-CIO filed a GSP worker rights petition in June 1999 and again in 2000 on Bangladesh’s Export Processing Zones Authority Act of 1980. Under this law, the government has the authority to exempt all or part of certain laws from application inside EPZs by notification in the official Gazette. Using this act, the government exempted three labor laws in the EPZs: the Employment of Labor Act of 1965, the Industrial Relations Ordinance of 1969 and the Factories Act of 1965. Accordingly, no procedures have been established governing the formation and registration of labor unions in the EPZs. To date, there are no unions in the EPZs, a common sign of an environment hostile to worker rights.

The petition was still under consideration when GSP expired. U.S. government spokespersons asserted that they were in discussions with the government of Bangladesh in order to reexamine the law’s impact.

Belarus

The AFL-CIO filed a GSP worker rights petition in 1999 updating a 1997 petition on the Belarus government’s repression of the Free Trade Union of Belarus (SPB). In 1995, a presidential order suspended the activities of the SPB after a strike by the Minsk Metro Workers Union. The decree had been used to undermine the SPB and its subsequent activities. In 1996, members of the Independent Trade Union of Belarus (BNP) who were affiliated with the Belarus Congress of Trade Unions (BKDP) were repeatedly detained while marching to Minsk to attend an opposition congress in protest of government policies. In 1997, the government denied the BKDP legal registration.

Additionally, Belarus had ignored international standards concerning health and safety. According to the U.S. State Department’s annual human rights report, “The law establishes minimum conditions of workplace safety and worker health; however, these standards are often ignored. Workers at many heavy machinery plants do not wear even min- imal safety gear such as gloves, hard hats or welding glasses. A state labor inspectorate exists, but does not have the authority to enforce compliance, and violations are often ignored. There is no provision in [the] law allowing workers to remove themselves from dangerous work situations without risking their jobs.”

On July 3, 2000, the USTR determined that the AFL-CIO’s petition was well founded and decided to suspend GSP trade benefits to Belarus. The USTR’s Charlene Barshefsky characterized the worker rights criteria as “fundamental.” “We have, for some time, been reviewing worker rights problems in Belarus concerning freedom of association, and the right to organize and bargain collectively,” Barshevsky stated. “Unfortunately, the govern-

62 Worker Rights and Unilateral Trade Benefits ment of Belarus continues to suppress trade union rights and harass union leaders.” Barshefsky also noted that while the Constitution of Belarus upholds key worker rights, these rights “are not respected in practice and independent trade unions are suppressed.”

Costa Rica

In June 2001, the AFL-CIO petitioned the U.S. government to remove GSP and CBI benefits from Costa Rica. Although the country was considered to be generally stable, poverty had increased in recent years to include 21 percent of the population. Many observers attributed this increase to the rise of less stable forms of employment that provided fewer benefits and only limited increases in income. A U.S. Embassy report also suggested that poverty was increasing even though unemployment was falling. This seeming paradox was due to an increase in employment in the free trade zones alongside low employment growth and weak agricultural prices in the rest of the economy.

Moreover, in 2001, less than 15 percent of Costa Rica’s workforce was unionized. Most of the existing unions were in the public sector, where bargaining was prohibited. Throughout the 1990s, a high number of complaints of freedom of association violations had been filed with the ILO against the Costa Rican government, but the government had consistently ignored ILO recommendations for improving respect for worker rights and had refused to accept either ILO technical assistance or an ILO Direct Contact Mission.

In rural areas, labor disputes were common on banana plantations. The government continued to accept solidarista organizations (employer-promoted associations aimed at the suppression of independent labor movements and total control of employee benefits), which the ILO had found to violate freedom of association. Child labor also remained a problem.

Consequently, the AFL-CIO petition requested removal of benefits based on the following violations:

Barriers to Freedom of Association

1. Although Costa Rican law stated the right of workers to join unions, many barriers continued to exist in practice:

the government’s tolerance of solidarista organizations;

the government’s failure to enact labor law reform despite two years of promises;

a series of executive and judicial decisions that further restricted the already narrow scope of bargaining rights in the public sector;

the government’s failure to effectively enforce the laws that protect freedom of association;

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excessive restrictions on the protection of union leaders from retaliatory dismissal;

excessive delays in the legal resolution of disputes over dismissals;

the lack of a requirement that the employer establish just cause before dis- missing a union leader; and

the lack of a legal mechanism for reinstating union leaders even if their dismissal was found to be unjust.

These conditions had created an overall climate of impunity where employers felt free to dismiss union organizers and leaders with little fear of legal consequences. In the wake of such firings, employers felt free to install company-controlled unions or deal directly with individual employees. In the private sector, where this problem was most pronounced, mass dismissals of union members had become common and, as a result, union representation had been almost eliminated.

Further, in the nine EPZs, where large numbers of workers had been dismissed for their union activity, most cases were decided in favor of the employer. But even in the few cases that workers were able to win, the decisions were subsequently overturned.

The government’s failure to enact promised legal reforms was also indicative of its anti-union attitude. The law prohibited workers who were not Costa Rican nationals from holding trade union office, effectively excluding more than 300,000 immigrant workers from participation in union leadership. Draft legislation to repeal this law had lain dormant in Parliament for more than five years. In addition, agricultural workers in small enterprises (those with fewer than five permanent workers) were excluded from union representation. Although this law had been found unconstitutional in 1952, the labor code had never been amended.

2. The Costa Rican government did not respect the right to organize and bargain collectively. In fact, the petition charged that the government had “fostered and promoted specific mechanisms to undermine collective bargaining.”3 The labor code permitted employers and employees to deal directly over terms and conditions of employment and permitted the formation of “permanent workers’ committees” of up to three members in each workplace. These committees were authorized to present complaints or requests on behalf of workers. In practice, the committees were controlled by employers.

The government also had continued to promote the formation of solidarista organizations, which had increasingly taken over functions that previously belonged to unions. Promoted by companies as a means of undermining and displacing unions, the solidarista organizations were particularly strong in the banana sector, where employers had increased efforts to lower working stan-

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dards and violate worker rights as a reaction to increased international competitive pressure. In the case of COBRASUR, a company that denied recognition to the workers’ union, such pressure included withholding dues, retaliatory dismissals and intimidation (including death treats and violence) and establishing a solidarista union.

3. The government denied the right to organize and bargain collectively in the public sector in several ways. First, most public employees were prohibited from negotiating collective bargaining agreements, and almost all of them were denied the right to bargain for wages. The ILO had repeatedly criticized the government’s failure to enact legislation to correct these problems. The existing provisional law, the “Regulation on Collective Bargaining for Public Servants,” violated ILO standards by requiring that all collective agreements be reviewed by a commission of state officials, which had the authority to reject them. The provisional law also excluded the negotiation of salary or any issue with potential impact on the national budget. In addition, attempts to resolve public sector labor disputes through the arbitration process cited in the labor code had been found unconstitutional in 1992.

The Costa Rican government did not limit its violations of freedom of association to weak laws. In fact, the government routinely violated the limited existing legal protections for the public sector. In the few workplaces where collective contracts were legal, the government refused to negotiate for them. Where prior collective agreements were found to remain valid, the government removed the collective bargaining language. The government also failed to implement agreements on wages reached by the “Negotiating Commission on Public Sector Salaries,” the body composed of government and trade union representatives.

4. The government was using privatization to undermine public employees’ right to organize and bargain collectively. Riot police used excessive force to quell public demonstrations.

5. The government denied the right to strike. The detailed and cumbersome legal requirements for executing a strike made it virtually impossible to hold a legal strike in Costa Rica. In the 50 years during which the Labor Code had been in effect, only two strikes had been declared legal. A constitutional challenge to the law, presented in July 1999, remained pending before the Constitutional Court, which had not yet decided whether it would even consider the case.

Failure to Prevent Child Labor

The government had not complied with its obligation to eliminate the worst forms of child labor, especially for using, procuring or offering a child for prostitution. A 1999

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Ministry of Labor report estimated that up to 9 percent of children between the ages of 5 and 14 were working. The U.S. State Department report noted that child labor “remains an integral part of the informal economy, particularly in small-scale agriculture and family-run micro-enterprises selling various items, which employ a significant proportion of the labor force.”4 An estimated 70,000 girls and young women, many of whom were Nicaraguan immigrants, and 40 percent of whom started work before age 14, were working as domestic servants. Child prostitution, much of which was linked to sex tourism, was gaining increasing attention.

Failure to Protect Worker Rights

The Costa Rican government failed to protect workers’ rights to acceptable working conditions. The minimum wage was not effectively enforced in rural areas. At the lower end of the scale, it was insufficient to provide a worker and family with a decent standard of living. Standards on safety and health were not effectively enforced. When the GSP legislation expired, a decision on the Costa Rica case was still pending.

Swaziland

In June 1999, the AFL-CIO filed a new petition updating a 1997 filing on Swaziland’s persistent use of government decrees, public orders and other unconstitutional legal instruments, along with arbitrary arrests, detention and harassment of trade union leaders by the police and government security forces, in an effort to deny the fundamental right to freely associate and to organize and bargain collectively. In 1995, the Swaziland Federation of Trade Unions (SFTU) had held a mass “stay-away” in support of its “27 Demands,” which included proposals for legislation regarding the reinstatement of unfairly dismissed workers, the establishment of a minimum wage, the establishment of a national social security system, maternity leave pay, May Day, an end to brutality against street vendors, the prevention of privatization of the water supply and a call for greater overall democracy and representation.

Following the mass stay-away, strikes broke out in several sectors and were violently repressed by the police. The authorities then obtained injunctions from the High Court to restrain the strikers, by passing the industrial court system. Several workers were shot, and SFTU General Secretary Jan Sithole was stopped and interrogated. Following the interrogation, Sithole was forced into a vehicle with armed police officials and driven to an isolated rural location where he was detained and interrogated for several hours. He was subsequently placed under surveillance and has received numerous death threats.

Later that year, in March 1995, the SFTU ordered another stay-away, leading to the arrest of several striking workers. At the end of the month, the government introduced a new industrial relations bill that violated aspects of ILO Conventions No. 87 and No. 98, including:

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a 5,000 emalengeni ($600) fine and/or five years’ imprisonment for any trade union federation official who calls a strike;

equally severe penalties to organizations or officeholders calling for such strikes;

empowerment of the Commissioner of Labor to suspend any organization or federation without review by judicial authorities;

authorization of the Commissioner to interfere with union constitutions;

prohibition of trade union officers from holding more than one office and from holding office in a political party;

authorization of the Attorney General to unilaterally apply for an order to stop a strike; and

authorization of the Minister of Labor to unilaterally apply for an order to interdict a strike on the basis of national interest.

Swaziland has continued such practices to date but now risks NAFTA parity eligibility for its apparel exports because of continued worker rights violations. The GSP review ended in January 2001, and the country’s status was left intact.

Thailand

The AFL-CIO and the ILRF filed petitions in 1999 updating successive petitions filed since 1992. The petitions cited numerous worker rights violations, which are summarized below.

State Labor Relations Act of 1991 (SERLA)

This act, which bans unions in state enterprises, remains the law of Thailand despite constant criticism and international condemnation. In 1997, the Thai government considered a reform act, which would have addressed certain of the issues discussed below.

Freedom of Association

Although current legislation permits private sector workers to form and join unions, the law provides no effective protection for workers before the union is officially registered. Evidence also indicates that local officials turn over the names of activists to employers, who then fire the leaders before the union receives its registration.

Migrant Workers

Approximately 500,000 Burmese migrant workers are employed in Thailand. Workers in the seafood industry reportedly live in cramped, filthy and unfurnished quarters.

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The rent for such lodging is high, prohibiting workers from saving enough money to gain independence from their employers. In addition, migrant workers do not receive benefits, the minimum wage or protection from forced overtime. In some cases, migrant workers are serving as bonded labor to pay back the brokers who originally smuggled them into Thailand.

In this case, the pressure that has mounted under GSP worker rights petitions has obtained results. In July 2000, the USTR terminated its review of Thailand after SERLA was amended to conform to international standards. “With the enactment of the new State Enterprises Labor Relations Act in February, which subsequently received Royal Assent and was published in the Royal Gazette in Bangkok, the government has succeeded in rein- stituting fundamental worker rights which have been denied to Thai workers employed by state enterprises for the past nine years,” said USTR’s Barshefsky, who also welcomed consideration by Thailand of additional steps that would allow unions representing state enterprise workers to associate with labor organizations in the private sector.

Guatemala

The U.S. Labor Education in the Americas Project (U.S./LEAP) filed a GSP worker rights petition in June 1999. It was the latest in a long line of complaints that helped bring some progress—but not enough—for Guatemalan workers. Petitioners initially expressed dis- satisfaction with the USTR’s decision not to accept petitions filed by the AFL-CIO and another filed by U.S./LEAP, ILRF, IUE and UE, based on overwhelming evidence that Guatemala had fallen and continued to fall well below the benchmarks set by the USTR in 1996. As evidence of such failure, the U.S./LEAP petition cited the following:

No Progress in the Labor Courts

The labor court system continued to be ineffectual. Efforts to reduce the backlog and to decentralize the court system had not been implemented.

No Progress in Administrative Remedies

The USTR and Guatemala had identified the need to strengthen administrative remedies in enforcing labor law. The benchmark suggestions for administrative reform included granting the Labor Ministry the authority to impose sanctions on violators, denying export licenses and initiating mediation by the Labor Ministry. No such remedies had been implemented.

No Labor Code Reform

The legislature had not granted new authority to the Labor Ministry to enforce the labor code. Of particular concern was the absence of legislation to implement Article 380, which required the reinstatement within 24 hours of workers illegally fired.

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Denial of Rights to Public Sector Workers

Despite the repeal of Decree 114-97, which denied legal recognition to public sector workers’ unions, the Guatemalan Labor Minister circulated an internal document to the Labor Inspection Office, ordering labor inspectors to abstain from intervening in issues related to public sector unions.

Violations in the Maquiladora Sector

Excessive hours: Although the legal workweek was set at 44 hours, most workers interviewed worked at least 56 hours per week, excluding overnights.

Involuntary and unpaid overtime: Guatemalan law provided that workers be compensated at the rate of time-and-a-half for work over 44 hours per week or over 8 hours during the day. Two of the most frequent worker complaints, however, were having to work overtime and failing to receive overtime pay.

Involuntary overnights: Mandatory overnights were illegal under Guatemalan labor law; however, workers from several factories reported mandatory overnights during rush periods.

Illegal denial of health care benefits: Employers were permitted to deduct payments from worker salaries for national health care (IGSS). However, employers often neglected to issue IGSS identification cards, which were required in order to access health services. Those who sought health care from other providers had to pay out of pocket and were docked for lost time. Those who did receive the IGSS card were often refused permission to seek care.

Illegal denial of bonuses: Under Guatemalan law, workers were entitled to a Christmas bonus and a “14th-Month” bonus, equivalent to a month’s salary and two weeks’ vacation with pay each year. Such bonuses were often paid late, not in full, or both.

Child labor: Children under the legal age of 16 were reportedly employed in the maquiladoras.

Denial of the right to organize and freedom of association: Workers identified in two plants stated that those who protested the employer’s failure to provide legally required benefits were fired. Similarly, workers engaged in union activity also were terminated.

Criminalization of Labor Disputes

It became common practice to accuse labor leaders and activist workers involved in organizing or other labor activities of engaging in criminal activities. Employers took advantage of the corrupt judicial system to open criminal cases against workers, thereby converting cases from labor issues to criminal matters.

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In August 2000, the AFL-CIO filed another Guatemala petition that updated and ampli- fied charges of worker rights violations. The new petition raises the following issues:

Freedom of Association

The report noted several instances of anti-union violence used against trade union organizers to prohibit the formation of unions, including killings and death threats. Numerous leaders were assassinated in 1999 and 2000, including four members of the Union of Municipal Workers of Zapaca, an official of the Union of Municipal Workers of Santa Lucia Cotzumalguapa and the Secretary General of the Trade Union of Pilots in Fuel and Allied Transport. No one has been brought to justice for these crimes. As a result of these killings, workers were denied their fundamental freedom to associate.

Employers also resorted to other methods to prevent trade union formation, including threats and illegal firing of organizers. The legal system could not enforce the law or assess adequate penalties against violators. Furthermore, employers were promoting company unions, or solidarismo associations, which had no right to collectively bargain.

Additionally, the right to strike was seriously impeded, as two-thirds of a union had to approve a vote to strike and the government could prohibit any strike it deemed harmful to the national economy. Strikes in “essential public services” also were restricted, in violation of internationally recognized standards.

The Right to Organize and Bargain Collectively

The labor code was highly restrictive, including a provision that required 25 percent of workers in a factory or business to be union members before bargaining could take place. Additionally, the ILO reiterated its request that the government amend regulations requiring certification by a two-thirds vote to authorize its executive committee to approve or endorse a draft agreement. Furthermore, the labor courts remained ineffective as a result of lack of training and resources.

Forced or Compulsory Labor

Although the government repealed Decree 19-86, which subjected hundreds of thousands to compulsory enlistment in civil defense patrols, it did nothing to prosecute those who were responsible for organizing such actions.

Child Labor

Although the constitution barred employment of minors under 14 without written permission by the Ministry of Labor, children below this age were regularly employed. Some groups estimated the number of child laborers in Guatemala at 2 million. The majority of the children were employed in agricultural work, while some worked as domestic servants, in construction, in stone quarrying or in fireworks manufacturing.

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Conditions of Work

The U.S. State Department noted that the legally mandated minimum wage for most unskilled and semiskilled workers was not always paid. Furthermore, the minimum wage was not sufficient to provide a decent standard of living for workers and their families. At least 80 percent of the population lived in poverty, including the 60 percent who were employed.

The USTR claimed to be engaged in intensive talks with the government of Guatemala to resolve these issues. The GSP review process for Guatemala ended in May 2001, and the country’s status was left intact.

El Salvador

The AFL-CIO filed a petition in 2000 arguing for the removal of El Salvador from the list of beneficiary countries under the GSP for its violation of the freedom of association, the right to organize and bargain collectively and the right to be free from forced or compulsory labor.

Freedom of Association

The petition cited several examples in which the government of El Salvador failed to afford its workers the right of association. The case of the national telecommunications company ANTEL is illustrative. During the privatization of the telecommunications industry, the government denied four separate applications for union recognition on the basis of legal technicalities. The Freedom of Association Committee of the ILO concluded that the sections of the Labor Code on which the government based these denials violated the freedom of association. These provisions required unions to obtain a requisite legal quorum, incorporated aspects of the Notary Act into the Labor Code and stipulated that subsequent applications to establish a union could only be made six months after a previous one. Additionally, the law restricted workers in public institutions to forming enterprise unions rather than trade unions.

In 1998, 72 workers were dismissed; all were current or former union leaders. Seventy accepted monetary compensation, but two resisted the dismissal. An additional 61 workers, including 14 who attempted to form a new union, were dismissed on October 31, 1998. Similar problems had appeared in other public sectors as they became privatized. Further, the petition reported similar violations in the National Water and Sewage Administration (ANDA), the public water authority and the Salvadoran Social Security Institute.

The Right to Organize and Bargain Collectively

The government continued to allow employers to dismiss labor activists in order to discourage organizing efforts. The firings violated not only international labor standards, but also the constitution of El Salvador, which prohibited firing labor representatives from

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the time of their election through one year following the completion of their term in office. The petition referenced three case studies in which the right to organize and bargain collectively was violated. One such case involved the Ganadera Cooperative of Sonsonate, a dairy plant. The Ministry of Labor presided over negotiations between the company and the union, but the negotiations reached an impasse when the company refused to offer more than a $6.80 per month raise. The day before the negotiations ended, the company fired 44 people, all labor activists. The following day, the company attended the last negotiation session and pressured the union leaders to voluntarily resign in exchange for full severance pay. Under this pressure, 43 employees, including the leaders, accepted the severance package and left the plant. The AFL-CIO cited this case because the ILO does not regard severance pay as an acceptable substitute for full reinstatement.

Forced Labor

The petitioner noted credible complaints of forced overtime in the maquila sector and forced prostitution by children. The State Department cited a report indicating that 7.8 percent of the workers in the maquila sector were not paid the legally required extra pay for working beyond the normal 44-hour week.

The USTR did not accept this petition for review.

Mauritania

The Committee for Defense of Human Rights in Mauritania filed a GSP worker rights petition in August 2000, under the new African Growth and Opportunity Act (AGOA) rather than the GSP. The Africa trade act incorporates GSP’s labor rights requirements.

The petition catalogued several cases of actual slavery, debt bondage and forced labor. Although slavery was outlawed in 1981, the practice continued despite and, in some cases, through the state apparatus. The situation was complicated by Islamic customary law (Sharia), which reportedly recognized the practice of slavery as legitimate. Religious courts formed much of the judicial system, and the constitution required that its citizens accept the rule of the religious courts and its interpretation of the law. Mauritania’s denunciations of slavery appeared to be little more than exhortations.

When the GSP expired, the status of this petition was unresolved.

Paraguay

The AFL-CIO filed a GSP petition in 2000 charging that the government of Paraguay, in the context of massive civil unrest resulting from deep political turmoil at the highest levels, had increasingly violated worker rights. The following violations were cited:

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Freedom of Association/Collective Bargaining

Paraguay’s labor code violated international standards in several ways, including unconstitutional restrictions on the free election of union representatives, the exclusion of public servants from laws granting the right to trade union formation and collective bargaining and a long, cumbersome registration process. Also, there were barriers to forming unions along industrial lines, through both bureaucratic regulations and employer repression and a requirement that candidates for union office must work in the enterprise and be active union members.

Child Labor

In Paraguay, one in three children between the ages of 7 and 17 (462,000) works. About 42 percent of these children began working at age 8.

Forced Labor

The ILO had noted that the law allowed authorities to force unconvicted detainees to work. Furthermore, indigenous people who lived on ranches in rural areas were forced to work to pay off debts incurred in ranch stores for purchasing foodstuffs at inflated prices. Often, they were paid at half the minimum wage or less, or their wages were withheld altogether.

Conditions of Work

Analysts believe that 50 to 70 percent of workers in Paraguay earned less than the decreed minimum wage. Additionally, workers were subject to excessive compulsory overtime and work in unsafe or unhealthy workplaces.

The USTR did not accept this petition for review.

Peru

The ILRF filed a petition in May 2000, charging that the Peruvian government’s amendments of the Employment Promotion Act drastically undermined worker rights—especially the rights of young workers and temporary workers—to freedom of association and collective bargaining. The ILO found that the act violated Conventions No. 87 and No. 98, both of which had been ratified by Peru. Under sections 8-16 and 24-31 of the act, workers between 16 and 25 could be hired to work for a period of up to three years for an enterprise without the protection of national labor laws. These “youth training agreements” allowed companies to employ up to 30 percent of their workforce with younger workers, who were denied the rights to organize, bargain collectively and strike. Sections 141 and 144 of the act also permitted enterprises to hire up to 20 percent of their workforce through cooperatives, “temp” services and auxiliary enterprises. Under such agreements,

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“temp” workers and employers were not in a direct employment relationship. Because they were employed by the cooperative or service, they were excluded from labor legislation and therefore could not bargain with either the enterprise or the cooperative over their conditions of employment.

Additionally, Peru had continued to violate the right to freely associate and bargain collectively by limiting national or sectorwide bargaining, by failing to require the reinstatement of illegally fired workers and by obstructing the right to strike. Moreover, Peru’s excessively broad definition of “essential public services” resulted in the prohibition of striking for many workers. Further, the law required a majority of all members to approve a strike and allowed the government to prohibit strikes under questionable and discretionary conditions.

The Peruvian government violated other worker rights as well. Legislation in 1995 and 1996 that repealed existing occupational health and safety laws left many workers without accident insurance or disability pensions. Child labor also continued to be a serious problem in Peru, where 4.3 million children between the ages of 6 and 17 were working. Children were sometimes found in hazardous employment, such as mining, and children as young as 3 or 4 years old were forced, often by parents, to lay bricks.

In January 2001, the USTR decided to defer its decision on Peru for several months. However, to date, no subsequent decision has been issued.

Ukraine

The AFL-CIO filed a GSP petition in August 2000, citing violations of the freedom of association. The Ukrainian president had signed into law a resolution that imposed significant restrictions on the ability of trade unions to acquire legal status at the local, district, regional, republican or national levels. In order to obtain legal recognition, unions were required to satisfy specific levels of union membership and territorial competence. The law was challenged at the ILO in 1999 by the Free Trade Union Federation of Ukraine. The ILO concluded that the law was not compatible with Convention No. 87, since issues of territorial competence and the number of members per district should be determined by the union, not the state.

If fully implemented, the law would revoke the legal status of virtually all unions in Ukraine. Without legal status, unions would be unable to acquire space, property or bank accounts or enter into legally binding agreements. Additionally, any trade union that did not meet the necessary requirements could be dissolved. The government had already revoked the registration and suspended the bank account of at least one independent trade union. Only the federation of state-supported trade unions (FPU) and one independent trade union had been registered.

The USTR did not accept this petition for review.

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Impact of GSP

Despite the availability and importance of later worker rights amendments, and notwithstanding its flaws, the original GSP formulation and petitioning process have significantly affected worker rights and trade policy. The GSP worker rights clause continues to be a key venue for worker rights advocacy in the global economy. The GSP worker rights amendment was the first substantive linkage of worker rights to trade. It had an available remedy of economic sanctions (though with excessive discretion in the hands of the U.S. presidential administration), and it had a procedure for filing complaints and putting worker rights violations to a test of allegation, defense and judgment.

The GSP was a fairly narrow program affecting only a small portion of U.S. trade. As tariff levels continued dropping in the years that followed, in connection with the General Agreement on Tariffs and Trade (GATT, which preceded the WTO) negotiations in the “Tokyo Round” and the “Uruguay Round,” the economic importance of the GSP diminished. But GSP eligibility is still an integral factor in a country’s image among human rights and worker rights advocates, and it remains an important issue for a country’s status in the eyes of U.S. trade negotiators and trade policymakers. Developing countries that want access to the U.S. market do not want to end up on a U.S. list of worker rights violators and face potentially more dire implications under other trade programs with worker rights amendments.

Most important, the worker rights amendment in the GSP fixed into U.S. law and policy both the principle of a worker rights/trade linkage and the practice of applying it. The GSP law was the foundation for launching later, broader advocacy of worker rights in trade in many other forums.

The worker rights advocacy community first pressed for including worker rights provisions in other U.S. trade laws. NAFTA and its labor-side agreement presented a new opportunity to include worker rights in broader trade pacts, as did the opening of talks on a hemispheric trade pact called the Free Trade Area of the Americas (FTAA).

Worker rights issues have now begun to penetrate governance discussions in international financial institutions like the World Bank and the International Monetary Fund. The United States and other countries also have pushed for worker rights on the agenda of the WTO. The WTO has so far resisted this move, but this resistance has propelled the adoption of the 1998 ILO Declaration on Fundamental Principles and Rights at Work. In addition to these measures, corporate codes of conduct and other mechanisms that include worker rights have proliferated as countries and companies scurry for alternatives to tough, sanctions-backed worker rights mechanisms. In sum, the GSP, a modest amendment in a little-known trade program, succeeded in demonstrating to workers and their allies a tangible means of pursuing increased respect for worker rights in the global marketplace, and it helped them find their voice in the clash and clamor of economic globalization.

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European GSP — 1995

The success of the U.S. GSP prompted the EU to take a serious look at conditioning its existing GSP benefits on respect for basic labor standards. GSP was originally established in Europe in 1971 and was renewed twice without changes. The new version, which incorporated both sanctions for worker rights offenses and incentives for compliance, went into effect on Jan. 1, 1995.

The motivation behind enacting the new law was for the GSP to become more development oriented, including a “broad-based concept of development which incorporates social progress and environmental concerns and has a basis in coherent economic strategy ... ” The new provisions allow the Commission of the European Communities to suspend GSP benefits if beneficiary countries indulge in fraud, unfair trading practices, inadequate controls on the export or transit of illegal drugs or money laundering or if they fail to comply with Uruguay around GATT obligations. Benefits also may be suspended for “the practice of any form of forced labor or the export of goods made by prison labor.” Article 9 of the law refers specifically to ILO Conventions No. 29 and No. 105, as well as to the Geneva conventions established on Sept. 25, 1926.

The European law, however, offers additional incentives to countries that comply with international standards related to worker rights, the environment and personal property rights. Compliant countries may see their tariffs reduced by an additional 20 percent. The law states that such incentives are conditioned on the “genuine implementation of the principles enshrined in these [ILO] Conventions” (the Conventions specifically cited in Article 6 include No. 87, No. 98 and No. 138). It adds that the incentive social clause “will be used not only to promote the right to organize and the right to collective bargaining but also to counter child labour as a practice directly linked to underdevelop- ment.” The portion of the law dealing with incentives went into effect on Jan. 1, 1997.

Complaints may be registered with the Commission by a member state, by any “natural or legal person,” or by “associations not endowed with legal personality, which can show an interest in such withdrawal.” If the Commission receives a complaint, it notifies all member states. Consultations concerning the information presented can be initiated by member states or the Commission itself, but they must take place within eight days following the submission of the initial complaint. If the Commission finds sufficient evidence to warrant an investigation, it will announce the opening of the investigation in the Official Journal of the European Communities.

After seeking whatever information it deems necessary, the Commission will consult with the Committee for the Management of Generalized Preferences, which consists of representatives of member states and is chaired by a Commission representative. After this consultation, if the Commission considers it necessary, it will verify the information submitted with “economic operators and the competent authorities of the beneficiary country concerned.” It

76 Worker Rights and Unilateral Trade Benefits also may dispatch its own experts to establish the truth of the allegations. In addition, the member state in question may request to assist the Commission in its inquiries. The Commission also may choose to hear “interested parties” who have responded, in writing, to the published notice of an investigation within the prescribed period.

Following the investigation, the Commission reports its findings to the committee. The Commission’s decision is published in the official journal. The withdrawal of GSP benefits lasts for one year. The suspension of benefits will then be renewed unless it can be shown that the violation is no longer taking place.

Since the revision of the law, two worker rights cases have been filed—one on Pakistan and one on Burma. The Pakistan case was not accepted for review. In 1997, though, the EU stripped Burma of GSP beneficiary status because of forced labor violations. That is the only case of GSP labor rights action by the EU, compared with a dozen countries stricken from U.S. GSP beneficiary status and a dozen more placed on “continuing review” for worker rights violations and improvements in law and practice in a number of countries.

In December 2001, the EU renewed its GSP program to the end of 2004, including measures to expand and strengthen the link between GSP benefits and core labor standards. Member country ministers approved a plan granting an additional 3.5 percent tariff reduction to all developing countries unless they “fail to meet basic labour standards” and an additional 5 percent reduction for countries that affirmatively demonstrate their adherence to ILO core labor standards as contained in the ILO’s 1998 Declaration. This change brings discrimination and broad definitions of child labor squarely within the EU’s GSP labor rights system, in addition to freedom of association, forced labor and the “worst forms” of child labor.

Overseas Private Investment Corporation (OPIC) — 1985

The Overseas Private Investment Corporation (OPIC), established by the U.S. Congress in 1969, provides political risk insurance and project finance to facilitate U.S. private investment in developing countries. OPIC’s reauthorization in 1985 added some new provisions, including a stipulation effectively prohibiting OPIC from assisting any project in a country not determined to be “taking steps to adopt and implement laws that extend internationally recognized worker rights ... to workers in that country (including any designated zone in that country).” The provision was based, in part, on similar GSP legislation. The rationale behind the law was to keep the “privilege” legislation consistent. The U.S. Congress did not want to withdraw GSP trade privileges from a country because it failed to provide basic worker rights while continuing to offer that country benefits under OPIC.

OPIC relies on GSP findings for its determinations concerning projects in GSP countries. For non-GSP countries, OPIC makes independent worker rights determinations, in con-

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sultation with executive branch agencies and interested human rights and labor organizations. Non-GSP countries in which OPIC is authorized to operate are Bahrain, Chile, French Guiana, Gabon, Germany, Greece, Korea, Nicaragua (as a result of presidential waiver), Nigeria, Northern Ireland, Qatar, Saudi Arabia, Singapore, Taiwan and Kuwait. Those who wish to raise worker rights concerns have the opportunity to do so at an annual public hearing. Well-documented testimony prompts a review of that country’s worker rights legislation, policy and practice.

Countries under review may submit pertinent materials to OPIC if they so desire, but at no time are they advised of what they would have to do to remain in the program. The process is essentially petition driven. OPIC’s findings and conclusions are described in an annual report to Congress for non-GSP countries whose continued eligibility for OPIC programs is challenged at OPIC’s annual public hearing. The president may waive the worker rights provisions for GSP and OPIC if he or she determines that it is in the national economic interest of the United States.

Much controversy has centered around the meaning of “taking steps” in the GSP and OPIC legislation. While neither Congress nor the interagency committees that study and make recommendations on country petitions have drawn fine lines on what constitutes “taking steps,” Congress defined this term for purposes of the OPIC legislation to mean that:

the country is a member of the ILO;

it is a signatory of its Constitution;

its laws conform to one or more of the five worker rights listed in section 502(2)(4) of the Trade Act of 1974; and

it continues to make progress to implement internationally recognized worker rights.

In addition to the protection already provided in the statute, in 1989, OPIC incorporated language in insurance contracts in Poland and Hungary intended to ensure that investors receiving OPIC political risk insurance coverage respect internationally recognized worker rights. Subsequently, the use of this clause was extended to other parts of the world and expanded to include other OPIC activities, including, for example, loan guarantees. The contract language on worker rights is as follows:5

The Investor agrees not to take actions to prevent employees of the foreign enterprise from lawfully exercising their right of association and their right to organize and bargain collectively. The Investor further agrees to observe applicable laws relating to a minimum age for employment of children, acceptable conditions of work with respect to minimum wages, hours of work, and occupational health and safety and not to utilize forced or compulsory labor.

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The investor is not responsible under this paragraph for the actions of a government.6

Impact of OPIC

Initially, OPIC was used by some U.S. firms to guarantee investments to open plants abroad that denied workers their rights while producing mainly for export to the U.S. market. This arrangement exploited workers in two ways. Not only were they unable to exercise their worker rights, but they also were not manufacturing products that were needed in their own countries. For this reason the AFL-CIO called for the abolition of OPIC at that time.

In 1985, attempting to address the concerns of the U.S. labor movement, Congress amended the OPIC law and directed the U.S. president, as in the GSP, to exclude developing nations that repressed their workers from participating in the OPIC guarantee program. Since OPIC abides by GSP determinations, most of the countries that lost OPIC eligibility did so as a result of GSP actions. However, since 1987, OPIC also has suspended eligibility for countries that were not part of the GSP program.

For example, in 1987, OPIC suspended its operations in Ethiopia. President Mengistu’s government had exercised tight control over labor. The only labor organization allowed to operate was the government-controlled All-Ethiopia Trade Union (AETU), which was a political group that the government used to carry out its policies (as opposed to a trade union representing worker interests). The AETU worked to expand party control in the workplace and to prevent work stoppages. Workers were not permitted to organize inde- pendently, and collective bargaining did not actually occur.7 OPIC accordingly suspended Ethiopia on worker rights grounds.

In 1991, responding to a petition by the United Auto Workers (UAW), OPIC also removed Korea from coverage after the ruling military government launched a wage of repression against a newly resurgent labor movement. Along with other “Asian Tigers”—Taiwan, Singapore and Hong Kong—Korea had graduated from GSP beneficiary status after its economy developed to a level enabling it to compete with richer industrial nations. Saudi Arabia, another country ineligible for GSP status because of its oil wealth, was removed from OPIC coverage because of its complete suppression of independent trade unionism in the country.

In April 1990, OPIC reached a negative determination on worker rights in the People’s Republic of China, where its programs had previously been suspended indefinitely by both the executive branch and legislative action. Severe human and worker rights problems had been evident in China since the beginning of Mao’s regime. However, in the early 1980s, China had begun to pursue economic and political reforms, which led OPIC to determine in April 1989 that China was “taking steps” in line with the statutory standard.

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The decision to maintain China’s eligibility for OPIC guarantees was based on China’s membership in the ILO, its adoption and efforts to implement several ILO standards relating to a minimum age for employment and acceptable working conditions, a reduction in the use of forced labor and labor reforms that allowed for limited collective bargaining on the enterprise level.

However, the Chinese government’s repression of the democracy movement in 1989 reversed the progressive trend, including improvements in the area of worker rights. Independent trade union leaders were arrested, and some were executed. The Communist Party reasserted control over workers’ groups within enterprises. The government reinstated forced labor for students. As a result, in April 1990, President George H. W. Bush directed OPIC not to conduct business in China. While the U.S. Congress voted in 2000 to end the annual review of China’s most-favored-nation status, clearing the way for China’s entry into the WTO, OPIC coverage is still prohibited for China on the basis of continuing worker rights violations.

The president’s right to waive worker rights provisions was first exercised on June 21, 1990, when President Bush, in the national economic interests of the United States, exercised his right of waiver in section 231A(a)(1) of the Foreign Assistance Act of 1961, as amended. This permitted OPIC to insure, reinsure, guarantee and finance projects in Nicaragua, which had undergone free elections and was in a transition to democracy.

In 1995, Nigeria was removed from OPIC eligibility after the Abacha government suspended the Executive Boards of the Nigerian Labor Congress and two national unions and appointed state administrators to run the organizations. In addition, the general secretary of the Nigerian Union of Petroleum and Energy Workers had been detained along with other union leaders. Nigeria, as a member of OPEC, was not eligible for GSP, but was eligible for OPIC. In December 2000, OPIC coverage was resumed for investments in Nigeria after the restoration of a democratic government there under newly elected President Olusegun Obasanjo.

Omnibus Trade and Tariff Act — 1988

The Omnibus Trade and Tariff Act of 1988 also tied trade to worker rights law and practice. In addition to several sections aimed at improving worker rights reporting, this bill contained two major worker rights provisions that tied worker rights to trade. The law called for the United States to negotiate a multilateral agreement to link worker rights and trade in the GATT round scheduled for completion in 1990.

The second provision, in Section 301, deemed denial of worker rights an unfair trade practice. According to this provision, the USTR, under the direction of the president, may take a broad range of retaliatory actions to enforce U.S. rights under trade agreements. Retaliation against such unfair trade practices (including suspension of most-

80 Worker Rights and Unilateral Trade Benefits favored-nation status) may be authorized if, after an investigation of the facts and consultations with the subject country, the situation cannot be resolved. This process is trig- gered by filing a case.

The 1988 law appeared to be a major step forward for worker rights in trade legislation because it applied to all imports into the United States and authorized the use of tariffs and quotas to block unlawful imports. However, the law also offered two loopholes that could be used to thwart its intent. It permitted the USTR to refrain from taking action against the country if the USTR determined that the country was “taking actions” to improve its worker rights performance or if the actions that denied worker rights were “not inconsistent with the level of economic development of the foreign country.”

Thus far, this law has not been exercised. Cases are difficult and costly to investigate and prove, and the loopholes inherent in the legislation suggest to worker rights proponents that even proven cases will not result in any U.S. government action. In 1998, the Union of Needletrades, Industrial and Textile Employees (UNITE) and allied worker rights groups, working with the AFL-CIO, prepared the first Section 301 labor rights complaint for filing based on severe violations of workers’ organizing and bargaining rights in Honduran EPZs. However, the terrible floods of Hurricane Mitch wiped out the EPZ factories and destroyed workers’ jobs, along with thousands of lives. For humanitarian reasons, the complainants agreed not to pursue the case at that time. However, labor rights advocates remain vigilant for the potential usefulness of the Section 301 labor rights clause in the future.

Andean Trade Preference Act — 1991

In 1991, Congress adopted the Andean Trade Preference Act (ATPA), which affected four South American countries: Bolivia, Colombia, Ecuador and Peru. The ATPA grew out of concern over drug trafficking, especially the production and export of cocaine from these countries. In practical terms, the ATPA is an extension of GSP, providing additional duty-free treatment for certain products not covered by GSP in order to offer an advantage to Andean countries. In addition, imports from ATPA countries are not subject to GSP competitive need and country income restrictions. Cut flowers, copper cathodes, processed tuna and jewelry are the main products that enter the United States under ATPA advantages.

The ATPA incorporates the GSP worker rights clause into its country eligibility requirements. Each of the countries also is a GSP beneficiary, so any complaints that might arise in an ATPA country would be subject to a GSP worker rights petition, and any outcome of a case also would affect ATPA eligibility. However, successive administrations have used national security and the war on drugs as justification for maintaining GSP and ATPA benefits for the four Andean countries.

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Tariff Act of 1930 (19 USC ¶1307) — 2000 Modification

Section 307 of the Tariff Act of 1930 (19 USC ¶1307) prohibits the importation of merchandise made in whole or in part with prison labor, forced labor or indentured labor under penal sanction. This law applies to people of any age. It was amended in 2000 to reinforce the fact that the provision also applies to forced labor or indentured child labor. Section 307 does not apply to child labor, however, unless it is forced or indentured labor. Being under the legal age for work or working in response to “extreme economic pressure” due to severe poverty does not automatically constitute forced labor within the legal definition.

The amendment sought to bolster efforts to address abusive child labor, which is found in many industries that produce for export. These include the production and processing of hand-knotted carpets, apparel, footwear, brassware, silk, glassware, bricks, furniture, food, gems and leather. Some of the industries that employ children, such as fireworks, match production, glass blowing and mining, are hazardous. Unfortunately, in some countries, government efforts to promote exports requiring low-skilled, labor- intensive production may have actually resulted in an increase in demand for the use of child labor, which may include forced or indentured labor.

Under the law, in order to be admitted into the United States, a product must be free of components produced with forced or indentured labor. This means that both manufacturers and suppliers must avoid the use of forced or indentured child labor.

The U.S. Customs Service is charged with enforcing Section 307 and related regulations. Customs encourages importers to avoid importing goods produced by forced labor, including child labor, but may exercise two types of enforcement options against importers who violate the law. The first is provisional detention of the merchandise, including either individual shipments or the entire output of a product type from a company or facility. The second enforcement action is the issuance of a formal finding that a particular class of merchandise is the product of forced or indentured child labor. When such a finding is released, the merchandise is barred from the U.S. market as long as the finding remains in effect.

Both types of enforcement actions are product and producer specific; the law does not authorize restrictions on all imports of a particular product from a country because some products of that type are produced with forced labor. Once Customs has determined that a product was made with forced or indentured labor, the burden of proof to change the finding lies with the importer, who must attempt to substantiate his or her claim that the particular shipment or production run in question was not produced through unauthorized means.

The U.S. government also can levy monetary sanctions on offenders for related legal violations, including penalties for material false statements and other material false acts

82 Worker Rights and Unilateral Trade Benefits or omissions related to the introduction or attempt to introduce illegal merchandise into the United States (19 USC ¶1592). Criminal sanctions can apply under 18 USC ¶545, which makes it a felony for someone to knowingly or fraudulently import or bring into the United States merchandise contrary to law, or a person who knows that the merchandise has been illegally imported but receives, conceals, buys, sells, etc., it after importation. A related law (18 USC ¶542) makes it a felony to introduce merchandise into U.S. commerce through false statements or to knowingly make a false statement in a declaration.

U.S. Customs also works with the U.S. Department of Labor’s Bureau of International Labor Affairs to implement Executive Order 13126, the Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor (64 F.R. 32383-32385). The order prohibits U.S. government organizations from purchasing items produced with forced or indentured child labor.

The U.S. government works to promote effective enforcement of law on forced labor in several ways. In 1999, the Secretary of the Treasury established the Treasury Advisory Committee on International Child Labor Enforcement. This committee makes recommendations to the Treasury Department and the U.S. Customs Service regarding how to strengthen enforcement of the law through voluntary compliance and business outreach.

In addition, the Forced Child Labor Command Center is part of the U.S. government’s enforcement system. Housed in the Fraud Investigation Branch of the Office of Investigations, the center serves as a liaison for Customs investigative field offices. It also provides a clearinghouse for information and investigative leads, a way to identify illegal merchandise before it arrives in the United States, and a process to help improve the coordination of enforcement and information. Finally, Customs’ outreach program serves as a liaison for U.S. and foreign government agencies and NGOs, educates manufacturers, U.S. importers and the public about forced child labor, advertises in trade publications and participates in trade fairs, includes forced child labor on its tip line (1- 800-BE-ALERT), and provides an email address to report suspected violators (forcedla- [email protected]).

ENDNOTES

1 H.R. Rep. #1090, 98th Cong., 2nd Session at 11-12, reprinted in 1984. United States Code Congressional and Administrative News 5101, 5111. 2 H.R. Conference Report 98-1156, Conference agreement, p. 157. Ways and Means Committee, House Report to Accompany H.R. 6063, House Report 98-1090, at United States Code Congressional and Administrative News, 98th Congress, 2nd session, volume S. 1985, p. 5112.

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3 Petition to Remove Costa Rica From the List of Beneficiary Developing Countries under the Generalized System of Preferences (GSP) and from the List of Beneficiary Countries under the Caribbean Basin Economic Recovery Act (CBI). AFL-CIO, June, 2001, p. 4.

4 Country Reports on Human Rights Practices. U.S. Department of State, 2000. 5 Congressional Record, Senate, Nov. 16, 1989, p. S15843. 6 Id., p. S15843. 7 Country Reports on Human Rights Practices - 1987, U.S. Department of State, USGPO, 1988, p. 96, 102.

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Worker Rights and Regional Trade Pacts Unions’ strength and organizational effectiveness have a significant impact on the extent to which international agreements and legal frameworks that protect worker rights are honored.

—Presentation at ICFTU/Solidarity Center Conference, March 2002 Worker Rights and Regional Trade Pacts

Under the drive for global economic integration, trade pacts have proliferated in recent years. Numerous bilateral agreements (agreements between two countries) have been adopted, but regional agreements covering neighboring countries and multilateral agreements among countries in different regions are increasingly common.

Trade agreements that cross regional lines but fall short of global coverage are under discussion. The European Union (EU), for example, is negotiating free trade agreements with Latin American countries and regional trade groups. Discussion is also underway concerning a Trans-Atlantic Free Trade Area (TAFTA), which would link the EU with countries that are party to the North American Free Trade Agreement (NAFTA), but this move is not yet being vigorously pursued. The EU is currently linked to 71 developing countries, former colonies in the Caribbean, Africa and Asia, through the Lomé Convention, a trade and aid agreement granting preferential access for exports from those poorer countries to EU member states.

The international trade union movement has led the drive to ensure the protection of worker rights in trade pacts. The International Confederation of Free Trade Unions (ICFTU), the International Labor Organization (ILO) and the Trade Union Advisory Committee (TUAC) to the Organization for Economic Cooperation and Development (OECD) have long encouraged the formation of working parties on labor rights in multilateral trade groups, but most governments and employer groups have fiercely resisted these efforts. Nevertheless, trade unions throughout the world have pursued the eventual inclusion of worker rights in trade agreements by forming regional coalitions and formulating social charters which represent the trade union point of view within a given region. This chapter describes significant regional agreements, their status and their connection with worker rights issues.

Africa and the Middle East

African Growth and Opportunity Act (AGOA)

On May 18, 2000, the African Growth and Opportunity Act (AGOA) was signed into law. The purpose of AGOA is to promote trade and commerce between the United States and the countries that comprise Sub-Saharan Africa and to provide incentives for African countries to achieve political and economic reform and growth. AGOA extends Generalized System of Preferences (GSP) benefits to include all imports from beneficiary countries except products classified as “import sensitive.” The law also provides unlimited duty-free and quota-free access to U.S. markets for apparel produced in eligible AGOA countries from “wholly formed” U.S. fabric, yarn and thread.

Amendments to AGOA (known as AGOA II) were added on August 6, 2002, as Section 3108 of the Trade Act of 2002. AGOA II expands preferential access for imports for beneficiary Sub-Saharan African countries as follows:

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Components made with knitted (“knit-to-shape”) fabrics, although not eligible under AGOA I, now qualify.

Apparel assembled in lesser developed countries, previously eligible regardless of the origin of the fabric, is now also eligible regardless of the origin of the yarn.

Hybrid cutting (cutting that occurs both in the United States and in AGOA countries) no longer makes fabric ineligible.

Volume caps on duty-free treatment were doubled.

Countries must pass through two stages of qualification to receive benefits. In the first stage, countries are designated eligible by the U.S. president on the basis of existing GSP criteria, new AGOA criteria and a new GSP criterion. GSP criteria include whether a country has established or is making continual progress toward establishing:

a market-based economy;

the rule of law;

the elimination of barriers to U.S. trade and investment;

economic policies to reduce poverty and increase availability of health care and educational opportunities;

protection of intellectual property;

protection of internationally recognized worker rights; and

a system to combat corruption and bribery.

In addition, countries are prohibited from:

activities that undermine U.S. national security or foreign policy interests;

gross violations of internationally recognized human rights; and

support for acts of international terrorism.

To be designated eligible, countries also must have implemented their commitments to eliminate the worst forms of child labor.

Second, to gain duty-free and quota-free access to U.S. markets for textiles and apparel, beneficiary countries must adopt effective visa systems and other procedures designed to prevent unlawful transshipment and the use of counterfeit documents. They also must have implemented or be making substantial progress toward implementing customs procedures that help U.S. Customs verify product origin. The purpose of all these requirements is to eliminate fraud. When a country meets these criteria, the Office of the U.S. Trade Representative (USTR) publishes a notice in the Federal Register.

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The following 36 countries from the Sub-Sahara region are designated as eligible to participate in AGOA:

Benin Guinea-Bissau Nigeria Botswana Ivory Coast Republic of the Congo Cameroon Kenya Rwanda Cape Verde Lesotho Sao Tome and Principe Central African Republic Madagascar Senegal Chad Malawi Seychelles Djibouti Mali Sierra Leone Eritrea Mauritania South Africa Ethiopia Mauritius Swaziland Gabon Mozambique Tanzania Ghana Namibia Uganda Guinea Niger Zambia

Countries also may be designated as “lesser developed beneficiary” countries. “Special Rule” allows countries with a per capita gross national product (GNP) of under $1,500 in 1998 duty- free access to apparel made of fabrics from anywhere in the world until September 2004. All Sub-Saharan African countries are eligible for the Special Rule except Botswana, Gabon, Mauritius, Namibia, Seychelles and South Africa. However, in 2002, AGOA II added Botswana and Namibia to the list of lesser developed beneficiary countries even though their per capita GNP had exceeded $1,500, recognizing the role of minerals and precious stones in increasing GNP and inequalities in income distribution.

All beneficiary countries must undergo an annual review process, whereby the U.S. president determines whether or not a country is making continual progress toward the establishment of the rule of law, free trade, economic policies that will reduce poverty and the protection of worker rights. The results of the annual review are included in a report issued annually on May 18. If the president decides to terminate a country’s designation, benefits will be suspended effective the following Jan.1.

The USTR conducts the review through its Trade Policy Staff Committee (TPSC). The review begins with the publication of a notice in the Federal Register soliciting comments on countries’ potential eligibility. The TPSC then collects and reviews information from U.S. embassies; African governments; U.S. government agencies such as the Departments of State, Commerce, Treasury, Labor and Agriculture and the U.S. Agency for International Development (USAID); and public information sources. During the second annual review, which was completed in May 2002, the committee also considered comments from the African Development Foundation, the Council of Economic Advisors, the Environmental Protection Agency, the National Security Council, the Overseas Private Investment Corporation, the Small Business Administration, the U.S. Customs Service, the U.S. Export- Import Bank, the U.S. Trade Commission and the U.S. Trade and Development Agency.

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When problems related to the eligibility criteria are identified during the review process, USTR works with individual countries to meet objectives that address those problems. The U.S. Department of Labor (DOL) also has offered assistance to some countries on issues related to the protection of worker rights and the elimination of child labor.

On the basis of the beneficiary country’s efforts to address the problems identified during the review process, USTR makes a recommendation to the president regarding the country’s status. The president then makes the final decision whether countries should be added to or withdrawn from the list.

In the 2002 report, the USTR cited a number of human and worker rights reforms and commitments that AGOA countries began or continued during the annual review process. The report notes the following improvements in the area of worker rights: 1. Several countries ratified ILO Convention No. 182, which calls for the elimination of the worst forms of child labor. These include Angola, Benin, Botswana, Burkina Faso, Cape Verde, the Central African Republic, Chad, Equatorial Guinea, Gabon, Ghana, Ivory Coast, Kenya, Lesotho, Mali, Malawi, Mauritius, Niger, Rwanda, Senegal, Tanzania and Zambia. 2. Cameroon agreed to work with the ILO on a Department of Labor-funded program focusing on worker rights. 3. Chad made some changes in its labor laws. 4. Benin, Cameroon, Gabon and Nigeria are participating in an ILO regional program to combat trafficking in children. 5. Malawi is working with the ILO on eradicating child labor and on amending its labor laws to protect the right to strike. Malawi also is participating in an ILO regional project on child labor in commercial agriculture. 6. Nigeria agreed to accept ILO assistance in helping the government prevent the worst forms of child labor. 7. Sierra Leone has requested ILO assistance to help the government ensure the release of children from military service. 8. Swaziland implemented a new industrial relations law that conforms to international worker rights standards. 9. Uganda is working on legislation to bring the country into compliance with ILO standards on child labor, collective bargaining and forced labor. The government also is developing an action plan on child labor to be incorporated into its poverty eradication action plan. Finally, the government passed a workers’ compensation act and is having a number of laws and decrees reviewed by a team of consultants. The provisions relate to trade unions, arbitration, occupational safety and health and dispute resolution.

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The law also establishes a U.S.-Sub-Saharan Africa Trade and Economic Cooperation Forum to serve as a vehicle for policy discussions and technical assistance. This government-to-government forum is intended to stimulate U.S.-Africa trade and encourage the development of economic prosperity. Two parallel forums are held concurrently with the government forum: one for the business sector and another for the non-governmental organization (NGO) community.

Economic Community of West African States (ECOWAS)

In May 1975, the Treaty of Lagos established the Economic Community of West African States (ECOWAS). The objective of ECOWAS was to promote trade, cooperation and self- reliance in West Africa. A revised treaty, designed to accelerate economic integration and increase political cooperation, was signed on July 24, 1993. The treaty provides compensation for countries whose import duties are reduced through trade liberalization. It also permits any country that is affected adversely economically to employ safeguards.

Although ECOWAS has continued to experience difficulty in realizing a number of its objectives, it has made progress on some fronts. An ECOWAS traveler’s check was initiated in October 1998 to facilitate regional travel and commerce. The West African Monetary Institute (WAMI), designed as a two-year transitional forerunner to the West African Central Bank, became operational in January 2001. ECOWAS also has been implementing a number of development projects related to electricity, natural gas, agriculture, water supply, education and other sector-specific issues.

ECOWAS members include:

Benin Guinea-Bissau Nigeria Burkina Faso Ivory Coast Senegal Cape Verde Liberia Sierra Leone Gambia Mali Togo Ghana Mauritania Guinea Niger

The organization is governed by a Conference, which meets once a year, a council of ministers consisting of two representatives from each country, a tribunal and an executive secretariat. Specialized commissions confer on the following issues:

Food and Agriculture

Industry, Science and Technology and Energy

Environment and Natural Resources

Transport, Communications and Tourism

Trade, Customs, Taxation, Statistics, Money and Payments

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Political, Judicial and Legal Affairs, Regional Security and Immigration

Human Resources, Information, Social and Cultural Affairs; and

Administration and Finance

However, no commission on worker rights exists.

Southern African Development Community (SADC)

On Aug. 17, 1992, the ten member countries of the Southern African Development Coordination Conference (SADCC) signed a treaty establishing the Southern African Development Community (SADC) as a replacement. The treaty seeks to promote economic integration toward a fully developed common market. The organization is governed by an annual summit meeting, a Council of Ministers and a Secretariat. It supports 16 sectoral coordination offices, none of which addresses worker rights. However, one of the offices covers human resources development. In 1996, the members included:

Angola Mauritius Swaziland Botswana Mozambique Tanzania Lesotho Namibia Zambia Malawi South Africa Zimbabwe

Along with stating goals of deeper economic integration, the treaty calls for “common economic, political and social values and systems, enhancing enterprise competitiveness, democracy and good governance, respect for the rule of law and human rights, popular participation and the alleviation of poverty.”

U.S.-Jordan Free Trade Agreement

On Oct. 24, 2000, a historic trade agreement was signed by Jordan’s King Abdullah and U.S. President Clinton. The U.S.-Jordan Free Trade Agreement is the first bilateral trade pact to incorporate enforceable worker rights and environmental protections into the body of the agreement. The agreement commits both the United States and Jordan to respect the core labor standards outlined in the ILO Declaration on Fundamental Principles and Rights at Work. These standards, discussed in Chapter 1, cover freedom of association and collective bargaining rights, forced labor, child labor and nondiscrimination in employment. The agreement also commits both countries to enforce their domestic labor and environmental laws. Under the agreement, both countries also agree to support discussions on worker rights at the World Trade Organization (WTO).

In contrast to other trade pacts, the U.S.-Jordan agreement takes a step forward by establishing the same dispute resolution mechanisms for both worker rights and commercial concerns. The pact also includes significantly improved transparency measures, both at the

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WTO and in the dispute resolution procedures of the U.S.-Jordan agreement. The dispute process is simple and straightforward.1 Under the pact, each country agrees to solicit and consider public views, to make public its dispute resolution panel submissions within ten days, to open oral presentations to the public, to accept friend-of-the-court submissions by individuals or non-governmental organizations and to release reports to the public at the earliest possible time. If, at the end of the process, the matter is still not resolved, then “the affected party shall be entitled to take any appropriate and commensurate measure.” An “appropriate measure” in a worker rights dispute might be an ILO delegation, a training program for workplace inspectors, a monetary fine or the withdrawal of trade benefits under the agreement.

The agreement received overwhelming and diverse support in Jordan from both the General Federation of Jordanian Trade Unions and the Jordanian American Business Association (the American Chamber of Commerce in Jordan). However, despite the support of both governments, unions in both countries, the Jordanian business community and some parts of the American business community publicly opposed the labor and environmental provisions in the agreement. When the agreement was signed, the U.S. Chamber of Commerce vowed to work with Congress to remove “unnecessary non-trade provisions” from the pact.2 In addition, the Jordanian and U.S. governments expressed reluctance to see the agreement enforced according to its original design in an exchange of identical letters:3

I wish to share my government’s views on implementation of the dispute settlement provisions included in the Agreement between the Hashemite Kingdom of Jordan and the United States of America on the Establishment of a Free Trade Area, signed on Oct. 24, 2000.

Given the close working relationship between our two governments, the volume of trade between our two countries, and the clear rules of the agreement, I would expect few if any differences to arise between our two governments over the interpretation or application of the agreement. Should any differences arise under the agreement, my government will make every effort to resolve them without recourse to formal dispute settlement procedures.

In particular, my government would not expect or intend to apply the agreement’s dispute settlement enforcement procedures to secure its rights under the agreement in a manner that results in blocking trade. In light of the wide range of our bilateral ties and the spirit of collaboration that characterizes our relations, my government considers that appropriate measures for resolving any differences that may arise regarding the agreement would be bilateral consultations and other procedures, particularly alternative mechanisms, that will help to secure compliance without recourse to traditional trade sanctions.

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The U.S. Congress ratified the agreement without making substantive changes. However, the current administration does not plan to enforce the agreement through use of the dispute resolution system that would potentially allow for the use of sanctions. As suggested by the history of other agreements that do not have “teeth,” this practice is likely to considerably weaken the effectiveness of the pact.

Other African Economic Organizations

Other economic organizations include the Arab Bank for Economic Development in Africa, the East African Community (EAC), Communauté Economique des Etats de l’Afrique Centrale (CEEAC), the Economic Community of the Great Lakes Countries, Fonds de Solidarité et d'Intervention pour le Développement (FOSIDEC), the Common Market for Eastern and Southern Africa (COMESA) and the Southern African Customs Union.

Social Charters

Trade unions in Africa have been working for many years to increase respect for worker rights through the development of social charters that can lead toward the harmonization of African labor codes. On April 28-29, 1991, the trade unions of Morocco, Tunisia, Algeria, Libya and Mauritania, which constitute the Maghreb region, met in Casablanca and agreed on a Social Charter. The Maghreb Charter includes provisions on the following issues:

the right to work;

equality of treatment between men and women;

union freedoms;

wages;

freedom of travel within the Maghreb;

protection of children, teenagers, senior citizens and disabled persons;

the rights of working women and their economic and social protection;

migration;

social protection;

the amelioration of working conditions;

workplace health and safety;

access to vocational and professional training; and

worker consultation and participation in workplace matters.

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In February 1992, the Southern African Labour Commission adopted the Social Charter of Fundamental Rights of Workers in Southern Africa. Under the auspices of the Southern African Trade Union Coordination Council (SATUCC), this was a joint effort of the Azania Trade Union Coordination Council, the Congress of South African Trade Unions (COSATU), the National Council of Trade Unions (NACTU) and the national trade union centers of South Africa, Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Tanzania, Zambia and Zimbabwe. The charter calls for the following:

basic human and trade union rights;

the ratification and implementation of relevant ILO Conventions and recommendations;

the prevention of discrimination and exploitation;

the right to job security;

the right to healthy working and living conditions, including the upward harmonization of minimum working conditions;

environmental legislation, education and enforcement;

increased transparency in company operations;

the establishment of autonomous labor and industrial relations courts;

protection for migrant workers;

protection of retirement and unemployment benefits;

the right to negotiate;

the right to participate in social, economic and political decision-making on worker-related issues;

the inclusion of structural adjustment and the Economic Forum in tripartite discussions;

the right to participate in the democratization process;

the end of gender-based discrimination, the strengthening of parental rights and the provision for proper health care and day care centers;

worker education and training; and

the establishment of a regional level tripartite, supervisory procedure for the review of complaints concerning the violation of basic human and trade union rights.

In March 1993, the East African Trade Unions Coordinating Council (EATUCC), created to promote human and trade union rights in Kenya, Tanzania and Uganda, adopted a Social Charter for Human and Trade Union Rights. In 1996, EATUCC adopted a charter on the

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harmonization of labor standards. The charter recognized and demanded basic human rights. It also called for the following trade union rights:

the right to strike;

the right to engage in other forms of industrial action;

the right to organize, including the right to a check-off system;

the right to education and training;

freedom of access by trade union officials to all parts of the workplace;

the right to hold meetings and bargain; and

the right to organize, associate and form trade unions without interference from governments or employers.

The charter identifies problematic labor laws and recommends remedial measures as well as recommending what should be considered common and essential features for the three East African countries’ labor laws.

Although intra-regional trade accounts for less than 5 percent of Africa’s total trade, several sub-regional groupings have been established to foster economic integration and to promote trade. Among these are:

two monetary unions (in West and Central Africa) within the so-called “franc zone,” where the common currency is linked to the French franc;

several sub-regional trade agreements, the principal ones being the ECOWAS, COMESA and the Southern African Customs Union, which links Botswana, Lesotho and Swaziland to the South African economy (attempts are being made to resurrect the EAC, which collapsed in 1977); and

several sub-regional development groupings, the most important being the SADC.

A few multilateral organizations have overlapping functions and/or extend beyond the borders of Africa. The Arab Monetary Fund functions much like the International Monetary Fund (IMF) and extends from North Africa into the Middle East. The Council of Arab Economic Unity has ambitions of becoming a common market and also extends into the Middle East. The Arab Maghreb Union is attempting to integrate the five countries of the Maghreb.

African trade unions have had only limited success in establishing parallel organizations. Among the most active are the Trade Union Confederation of Arab Maghreb Workers (USTMA) in the Maghreb, SATUCC in Southern Africa and EATUCC, which is trying to get organized in East Africa. The USTMA and SATUCC have produced social charters, but these have not been signed by any of the governments in the regions. Basically, all of the

96 Worker Rights and Regional Trade Pacts social charters formulated to date constitute a start in developing unified regional trade union objectives. African trade unions face a long road ahead before seeing their provisions included in regional trade agreements.

Americas

The North American Free Trade Agreement (NAFTA) and the North American Agreement on Labor Cooperation (NAALC)

NAFTA was negotiated in the early 1990s during the administrations of U.S. President George Bush, Mexican President Carlos Salinas and Canadian Prime Minister Brian Mulroney. The three leaders announced agreement on NAFTA in August 1992 just as the U.S. presidential race of that year was heating up. Labor, environmental and human rights organizations pressured candidate Bill Clinton to repudiate NAFTA during his campaign for the presidency, charging that the agreement favored multinational corporations and investors at the expense of workers and the environment.

In an effort to respond to both pro- and anti-NAFTA forces, Clinton opted to support NAFTA if “side agreements” dealing with labor and the environment were added to the package sent to Congress for approval.4 After taking office in January 1993, the new Clinton administration began supplemental negotiations on these issues with Mexico and Canada. Agreements were reached in August 1993, on the NAALC and a companion environmental accord, the North American Agreement on Environmental Cooperation (NAAEC). All three agreements took effect on Jan. 1, 1994.

Introducing the NAALC

The NAALC is the first international labor agreement directly connected to a trade pact that allows for the imposition of economic sanctions to enforce worker rights. The accomplishments cited by NAALC supporters and the shortcomings noted by NAALC detractors provide important lessons for future attempts to fashion a viable worker rights/trade linkage.

One starting point for understanding the NAALC is to see two things it does not do:

It does not set new common standards to which countries must adjust their laws and regulations. Instead, the NAALC stresses sovereignty in each country’s internal worker affairs, recognizing “the right of each party to establish its own domestic worker standards.”

The NAALC does not create a supranational administrative tribunal to take evidence and decide guilt or innocence in labor disputes or to order remedies against violators. This is left to national authorities applying national law. Nor does the NAALC create a supranational labor judicial body to take appeals on

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decisions of national tribunals and overrule decisions that arguably fail to “enforce” the NAALC. Decisions by the national courts are undisturbed by the NAALC.

Instead of setting up an international enforcement system, NAALC countries have created an oversight, review and dispute resolution system designed to hold one another accountable for performance in 11 defined areas of labor law. Oversight is conducted first by a review body in another government. Then, depending on the subject area, evaluation and arbitration can be done by independent, non-governmental committees or panels.

The NAALC also includes provisions for sanctions, which are described in greater detail below. It should be noted at the outset that no NAALC case has reached this stage. Practically speaking, it is unlikely that a case would reach this point because NAALC procedures include ample opportunity for finding a cooperative solution to disputes before they reach a point of sanctions.

Labor Principles and Obligations

Under the NAALC the United States, Mexico and Canada “are committed to promote” the following labor principles, which are cited in Annex 1 of the agreement:

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;

elimination of employment discrimination;

equal pay for women and men;

prevention of occupational injuries and illnesses;

compensation in cases of occupational injuries and illnesses; and

protection of migrant workers.

The three countries have adopted the following six “obligations” (cited in Articles 2–7 of the agreement) for effective labor law enforcement to fulfill the principles:

a general duty to provide high labor standards;

the effective enforcement of labor laws;

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access to administrative and judicial forums for workers whose rights are violated;

due process, transparency, speed and effective remedies in labor law proceedings;

public availability of labor laws and regulations and the opportunity for “interested persons” to comment on proposed changes; and

the promotion of public awareness of labor law and worker rights.

Institutional Structure of the NAALC

Commission for Labor Cooperation: Ministerial Council and Secretariat

The NAALC created a Commission for Labor Cooperation that includes a Ministerial Council and a permanent Secretariat. The labor ministers of each country comprise the Council that governs the Commission.

In September 1995, the Commission’s Secretariat began operations in Dallas, Texas. The Secretariat staff includes a dozen labor lawyers, economists and other professionals (four from each country) who are experienced in the labor affairs of their countries. The NAALC Secretariat undertakes comparative studies and reports on labor laws and labor markets in the three countries and serves as the general administrative arm of the Commission. The Secretariat also serves as the support staff of an Evaluation Committee of Experts (ECE) or arbitral panel. In 2000, the Secretariat moved from Dallas to Washington, D.C.

National Administrative Offices (NAOs)

The NAALC also set up a National Administrative Office (NAO) in each country’s Labor Department. The NAOs receive complaints (“public communications” or “submissions” in NAALC parlance) from the public related to any of the 11 labor principles. There is no limitation on who may file a complaint. In the interest of having the process as open and accessible as possible, the regulations of each NAO have set a fairly low threshold for acceptance for review.5

The scope of such reviews is “labor law matters arising in the territory of another party.”6 This is an unusual but critical feature of the NAALC. Employers, workers, unions and allied NGOs must file their submissions with the NAO in another country, not the country where alleged violations occurred, to start the review process. The United States and Canada hold public hearings on complaints with transcripts and sworn testimony. The Mexican NAO holds private “informative sessions.”

The NAOs issue public reports on submissions they have accepted for review. The public report contains a key make-or-break determination: whether or not the NAO recommends ministerial consultations. If not, the matter is closed. If so, the matter moves for-

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ward. These ministerial consultations are open-ended efforts to resolve a problem before it expands. They have generally led to further hearings, special research reports, seminars and conferences, worker education programs and the like.

Evaluation Committees of Experts

After ministerial consultations, the labor minister of a single country can request and obtain an evaluation from an independent ECE. An ECE performs an independent evaluation of the effectiveness of all three countries’ labor law enforcement in the labor issue under review. At this stage, Labor Principles 1, 2 and 3—the so-called “industrial relations principles” involving freedom of association, collective bargaining and the right to strike—are excluded from evaluation through the ECE process. ECEs are empowered, however, to evaluate countries’ enforcement records in one or more of the remaining eight labor law matters, depending on the scope of the request:

forced labor;

child labor;

minimum employment standards;

employment discrimination;

equal pay for women and men;

occupational safety and health;

workers’ compensation for occupational injuries and illnesses; and

migrant workers’ protection.

Arbitral Panels

Five of the eight principles susceptible to an ECE are not permitted to move beyond the ECE process to the arbitration stage. However, following the release of an ECE report, two of three countries’ labor ministers can demand an independent arbitral panel if they believe that the third country is still manifesting a “persistent pattern of failure” in effectively enforcing domestic labor laws in one or more of the three remaining areas:

child labor;

minimum wage; and

occupational safety and health.

If the arbitral panel agrees that the country under scrutiny is failing to effectively enforce the laws in question, the panel is empowered to issue an “action plan,” which the country must implement.7

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If the government refuses or fails to implement the plan, the panel can fine the offending government up to 0.007 percent of the volume of trade between the countries. This fine was approximately $20 million when the NAALC took effect. It is now over $50 million with the increase in the volume of trade among the three NAFTA partners.

The fine must be used to improve domestic labor law enforcement in the area or sector that provoked the complaint. If the fine is not paid, NAFTA tariff benefits can be suspended in the sectors (or at firms) where the violations occurred.8 Since Canada guarantees payment of any fine through court enforcement, it is not subject to suspension of benefits.

Weaknesses and Overall Impact of NAFTA and the NAALC

Controversy has continued to erupt around the impact of NAFTA and the NAALC. NAFTA proponents’ early predictions regarding the Mexican economy and wage levels have not been fulfilled. In fact, the Mexican economy shrank by 6.9 percent in 1995, the worst economic crisis in decades.9 Production fell in virtually all sectors. In addition, the ruling Institutional Revolutionary Party’s (PRI) control of the labor movement and use of intimidation throughout the life of the agreement have resulted in an increasingly more regressive distribution of income.10 This has been graphically illustrated in the continued migration of immigrants to the United States across the Mexican border.

Still, NAFTA supporters, composed primarily of the three participating governments, claim success. At a Prince Edward Island ministerial meeting in October 1998, the Canadian, Mexican and U.S. governments expressed general satisfaction with the results, citing mainly the fruits of their cooperative activities, such as the increase in knowledge about each other’s labor markets and labor law systems. At the same time, they pledged to “improve the future operations and effectiveness of the NAALC.”

NAFTA opponents, however, believe that all three NAFTA countries have suffered economically. Critics also point out that the labor side agreement has failed to address worker rights problems that perpetuate the gross inequalities within each country and among the three countries.

Trade unions and allied NGOs on the one hand, and business organizations on the other hand, have all been vociferous critics of NAFTA, but their perspectives are diametrically opposed. The Canadian Labour Congress said that NAFTA “falls far short of the mechanisms necessary to truly remedy market failures and halt the downward pressures on wages and standards …. [E]ven when the workers have proven their case satisfactorily, the remedies have been inconsequential and the abuses have continued.”11 Some independent Mexican union organizations have said that the NAALC “has not represented a real social counterweight to free trade” and “has shown serious limitations as an instrument” for improving worker rights.12

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The AFL-CIO says that NAFTA has failed to live up to its promises.13 It notes that NAFTA rules allow companies to pit worker against worker and drive down wages and working conditions; in fact, it has adversely affected workers in all three countries. The federation notes that U.S. workers have lost hundreds of thousands of jobs as companies have relocated to Mexico to take advantage of lower wages, weaker worker rights and environmental practices and improved access to the U.S. market. Companies also have used the threat of relocation to break union organizing drives and gain concessions at the bargaining table. At the same time, Canadian workers’ wages have fallen below U.S. levels. Mexican workers’ wages have actually dropped about 10 percent in inflation-adjusted pesos since NAFTA began, while poverty levels are higher. Moreover, the persisting regional and economic inequality has generated a migration of Mexican workers from rural areas to work in the maquiladora zones or in the United States, where their rights are not fully protected.

The AFL-CIO also decries the impact of NAFTA’s ability to regulate services—even public services. In 2001, for example, a NAFTA dispute panel decided that the United States must permit Mexican truck companies to provide services throughout the country, even though there are not enough inspectors to ensure that those trucks meet U.S. safety and labor standards. Moreover, NAFTA allows companies to challenge national laws that protect the environment, public health and consumers and demand compensation from governments. For example, the Metalclad Corporation successfully demanded more than $16 million in compensation from the Mexican government when the government tried to prevent the company from building on an ecological preserve. The AFL-CIO also notes that NAFTA does not allow governments to include social, environmental or worker rights criteria in their purchasing decisions. When former U.S. President Clinton ordered the federal government to stop using taxpayer dollars to buy goods made with the worst forms of child labor, he had to exclude Mexico and Canada from the order because NAFTA does not permit that type of protection. Finally, the AFL-CIO charges that the NAFTA side agreement has not protected worker rights, noting that although NAALC cases have led to a number of hearings and reports, no concrete changes have been made to improve worker rights.14

Human Rights Watch criticizes the lack of an independent oversight body, asserting that the “NAFTA experience demonstrates that it is unrealistic to expect governments to police each other when it comes to protection of labor rights.”15 Because the decision to convene arbitration panels rests solely with the governments, of the 23 complaints filed under the labor side agreement, “few have been credibly investigated, and none have led to penalties or sanctions.”16

On the other side, business organizations have frowned on the NAALC’s more contentious aspects, especially the submissions process. They called for the NAALC to emphasize cooperative activities instead. The U.S. Council for International Business (USCIB) argued that the NAALC “has unduly emphasized [submissions] over positive cooperative activities … it

102 Worker Rights and Regional Trade Pacts sets the wrong tone and focus.” The USCIB said that NAO acceptance of a submission should be an “exceptional act” after all domestic legal procedures have been exhausted and that the sole results of submissions should be “joint studies and technical cooperation and assistance.” Citing the practice of the ILO and the OECD, the U.S. employer council argued that the name of a specific company should not be part of the record in any submission, and that NAOs should not hold public hearings because they are “too confrontational.”17

Mexico’s Enterprise Coordinating Council (CCE), the Coordination of Foreign Trade Enterprise Organisms (COECE) and the Confederation of Chambers of Commerce (CONCAMIN) criticized the “publicity” surrounding NAALC cases in connection with “premature” acceptance of cases. They called public hearings by the U.S. NAO “contrary to Mexican sovereignty” and argued that no submission or related report should contain the name of a specific company.18 A prominent consultant who had earlier served in the Mexican trade ministry attributed the NAALC’s activity solely to pressure from anti-NAFTA protectionist groups in the United States and characterized actions of the U.S. NAO in accepting cases and holding hearings as a “distortion” of the NAALC.

The public comments for the Commission’s four-year review were made in early 1998 when a total of ten complaints had been submitted under the NAALC. Nine of them involved labor law matters in Mexico. This disproportionate number created an impression that NAFTA’s labor side agreement was far less than a balanced agreement subjecting each country equally to scrutiny by its partners. In 1998, though, the submission of important new complaints like the Washington State apple case and the Canadian McDonald’s case brought more equilibrium to NAALC.

Perhaps the most important outgrowth of the NAFTA labor side accord and its complaint mechanism has been an unprecedented increase in exchange, communication and coordination among worker rights advocates and labor researchers at the tri-national level. The NAALC’s submission mechanism has sparked a significant increase in cross-border labor and NGO collaboration. Since a submission about worker rights violations and the failure of government authorities to effectively enforce domestic law in one country must be submitted with the NAO of another country, those who submit cases are encouraged to seek partners in the other country to assist in pursuing the case. Nearly every submission has been signed by a coalition of organizations based in at least two countries, and sometimes in all three.

NAFTA’s impact on U.S. jobs and U.S. trade is still hotly disputed by different observers. The debate in the United States over NAFTA, job losses and wage reductions is currently a low-intensity war, but it still breaks into large-scale conflict when international trade issues rise to the top of the Washington agenda.

As with any heated public policy debate, perceptions and facts are at sharp odds in the NAFTA jobs and wages debate. The AFL-CIO and allied organizations have argued that

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NAFTA destroyed some 500,000-600,000 U.S. jobs. In contrast, the Clinton administration and business supporters claimed that NAFTA-related trade supported 2.3 million U.S. jobs and that many of the 14 million new American jobs since 1993 owed their creation to expanded trade thanks to agreements like NAFTA.

Each side in the debate has accused the other of relying on ideology, passion and perceptions rather than facts. The controversy is exacerbated by the malleability of numbers in arguments about jobs gained or lost under NAFTA. The argument is further complicated by separating the impact of NAFTA on employment and wages from the impact of Mexico’s peso devaluation at the end of 1994.

NAFTA opponents can point to closed U.S. factories, many of which employed hundreds of workers whose jobs have now moved to Mexico. In contrast, jobs created in warehous- ing, distribution, professional services and other fields are spread too thinly through the economy to affect the public debate. In addition, the balance of U.S. trade, which showed a slight deficit with Canada and a surplus with Mexico at the time that NAFTA was negotiated, has shifted to a large and growing deficit with both countries today.

Recent prominent articles in important regional newspapers are typical of NAFTA discourse in the United States. A light bulb manufacturer that employed 600 workers near Boston, Massachusetts, closed the plant and moved production to Mexico. Most of the employees were women and members of minority groups. Their average salary was approximately $12.00 per hour, with their total compensation, including benefits, exceeding $20 per hour. They lost everything when the plant closed and moved to Mexico. Speaking to The Boston Globe, the state government’s director of international trade said that “the job loss here is very regrettable, but NAFTA has opened markets for us that weren’t there before.”19 She pointed out that Massachusetts-based exports to Mexico, mostly in growth industries such as computers and telecommunications equipment, had increased 30 percent from 1997 to 1998.

In contrast, the plant’s union leader stated that “there is no more American Dream. What we have now is the Mexican Dream.” A regional union official said that “the bitterness workers feel now is not that they’re losing jobs because of a lack of sales, but because the government greased the skids for the transfer of our jobs to other countries.” A worker indicated that “our politicians and our government … are the ones to blame.” The newspaper article’s text was accompanied by photographs of victimized women workers and their children pondering their future after the loss of a good job with health insurance and other benefits. In a battle for the public’s hearts and minds, the image of suffering workers far outweighs a bureaucrat’s recitation of statistics.

The drama of job losses attributed to NAFTA has taken on added layers of impact and irony because many of the most widely publicized plant closings have taken place on the U.S. side of the border with Mexico and affect mostly low-paid Mexican and Mexican-

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American female workers. In El Paso, Texas, Levi Strauss & Co. closed large facilities employing thousands of workers who made modest wages of $6 to $8 per hour. Many smaller firms along the border in California, Arizona and Texas also shut down and joined the exodus to Mexico, lured by wages at one-tenth the U.S. level and new, advantageous access to the U.S. market under NAFTA.

In all, some 10,000 workers in El Paso lost their jobs because of plant closings and moves to Mexico. Unfortunately, the adjustment assistance program designed just for these types of situations proved ineffective, since it contemplated retraining for “high tech” and service sector employment. In El Paso, most of the affected workers had labored as garment sew- ers their entire lives and spoke little or no English.

These examples of NAFTA’s effects can be multiplied many times through all parts of the United States since the trade agreement went into effect. In their continuing emphasis on drama, the mass media are drawn to evocative portrayals of shuttered plants and ex- employees who gave a lifetime’s work to a company that moved their jobs to Mexico. The cumulative effect on public consciousness and on politicians’ wariness on trade issues is strong, despite the state of the domestic economy.

However, the AFL-CIO has published figures that demonstrate an adverse impact far beyond that of individual dramas. The AFL-CIO’s Task Force on Trade noted that in 1994, the U.S. trade surplus with Mexico was $1.7 billion. In 1995, this exploded to a $15.4 billion deficit, and the combined merchandise trade deficit with NAFTA partners was $34 billion.

The number of jobs lost also is significant. During the NAFTA debate, supporters claimed that 170,000 U.S. jobs would be created by 1995 as a result of the agreement (figuring that every billion dollars of net exports creates 20,000 jobs). However, the AFL-CIO has noted that, using the same formula, the $15.4 billion trade deficit indicated that 300,000 jobs were either lost or not created. One affected industry was the lumber trade; U.S. imports of Canadian lumber, most of which comes from government-owned land, took a record 35 percent of the U.S. market. Thousands of U.S. lumber mill jobs were lost.

Since NAFTA’s inception, the U.S. Department of Labor has certified 380 petitions covering 53,210 workers who claimed NAFTA-related unemployment. This figure, however, does not accurately reflect the magnitude of workers affected, because many American workers are simply unaware of the NAFTA Trade Adjustment Assistance program and would not have known to apply for assistance. Moreover, service workers, such as truck drivers and railroad workers, are ineligible to apply.

As the ILO has long observed, national laws without adequate enforcement mechanisms are doomed to fail. International agreements cannot be enforced if they do not provide for consequences when the agreement is violated. The NAALC’s fatal flaw is the lack of mandated legal consequences for certain kinds of worker rights violations. In these cases,

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the only certain “consequence” is consultation. So far, the consultation method has demonstrated only a limited power to embarrass.

NAALC Submissions and Cases: Overview

Only a couple of dozen complaints have been filed under the NAALC. Some observers have called this number distressingly low considering the volume of worker rights violations in North America, but it must be emphasized that the NAALC is not intended as a mechanism for resolving specific complaints and implementing remedies like the following: orders to reinstate workers who were unjustly discharged, related orders for back pay to victimized workers, orders to recognize and bargain with trade unions, orders to remove children from unlawful labor, orders to adjust pay for women to equal that of men, orders to install air filters to reduce health hazards, orders to provide compensation to injured workers or other remedies associated with labor law enforcement.

These matters are left to “hard law” under national legislation and national enforcement mechanisms. Rather, the NAALC is intended to be a review mechanism by which member countries open themselves up to investigation, reports, evaluations, recommendations and other “soft law” measures. The idea is that over time, such enhanced oversight and scrutiny will generate more effective labor law enforcement.

The universe of NAALC cases is small enough to examine each in detail in order to appreciate how the NAALC is used by complaining parties, how other social actors as well as governments respond and participate in the process and what the range of outcomes might be. Before turning to such a case-by-case analysis, however, the following overview will provide an orientation.

The rate of NAALC complaints has increased over time, and the pattern of complaint targets and subjects has also shifted. Most early cases, such as those involving General Electric, Honeywell, Sony, employees of the Mexican fisheries ministry, Maxi-Switch, Han Young and ITAPSA, dealt exclusively with violations of workers’ organizing and bargaining rights in Mexico. One case addressed a similar matter in the United States where Sprint Corporation, the U.S. telecommunications giant, closed a workplace while workers were attempting to form a union.

By the end of 1997, nine of the first ten NAALC complaints targeted Mexico for allowing worker rights violations to occur without effective labor law enforcement to remedy or deter such violations. Only one case—the Sprint case—targeted the United States, and no complaints had been filed against Canada. The Mexican government suggested that the NAALC was becoming a “Mexico-bashing” tool rather than a balanced agreement meant to enhance worker rights in all three countries. Some Mexican critics charged that the NAALC had been captured by protectionist groups in the United States whose real goal was to halt foreign investment in Mexico by harassing multinational companies there and keeping jobs in the United States.

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An inherent limitation afflicted the early cases. The NAALC’s “industrial relations” principles—freedom of association and protection of the right to organize, the right to bargain collectively and the right to strike—were not subject to treatment beyond the NAO review stage. An NAO review could be followed by ministerial consultations, but there was no recourse to an ECE or to an arbitral panel. Thus, better enforcement could not be encouraged through the imposition of economic sanctions against a government for failing to enforce labor law or against companies and sectors where violations occurred.

Moreover, specific remedies such as the reinstatement of workers unjustly dismissed for union activity or orders to bargain with independent unions not affiliated with the dominant central labor body were not forthcoming under the NAALC. Some worker rights advocates became discouraged and rejected the NAALC as “toothless.” However, others saw the longer-term potential for using the NAALC as a “climate-changing” mechanism, especially through the availability of public hearings and public accountability by government officials. They persevered with new complaints raising new subjects, including more cases arising in the United States and Canada.

During 1998 and 1999, new cases addressing worker rights violations in the United States and the first cases dealing with Canadian labor law matters were filed. These years also brought the first case filed by Mexico’s official union, the Confederation of Workers of Mexico (CTM), which earlier had effectively boycotted the NAALC as an infringement of Mexican sovereignty. In addition, for the first time an employer organization sought to use the NAALC to its advantage. These developments suggested that NAFTA’s labor side agreement was gaining some traction in dealing with issues of worker rights in North America and could become a sustained forum for labor rights advocacy.

Any “labor law matter” related to one or more of the 11 Labor Principles can be the subject of a complaint before an NAO. There is no requirement that the matter be trade related, that a “pattern of practice” exist or that the issue involve “effective enforcement” of national law. These requirements come into play at the creation of an ECE and beyond that stage in the formation of an arbitral panel. Also, as noted earlier, there are no standing requirements for a person or group filing a submission to show personal interest or injury in the case and no citizenship requirement for filing with a particular NAO. Any person, from any country, singly or in coalition, may file a complaint with any NAO, including the NAO of another country. The only jurisdictional limitation is that a complaint filed with the NAO of one country must involve labor law matters in another country, not the country where the complaint is filed.

The following pages review NAO complaints involving alleged worker rights violations in Mexico, the United States and Canada. Information for these cases was gathered from www.dol.gov/ILAB/programs/nao/status.htm and www.dol.gov/ILAB/media/reports/NAO/ public-reports-of-review.htm.

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Cases Involving Alleged Worker Rights Violations in Mexico

Honeywell and General Electric (U.S. NAO Case Nos. 940001 and 940002)

In February 1994, two U.S. unions, the International Brotherhood of Teamsters (IBT) and the United Electrical, Radio and Machine Workers (UE), filed separate complaints with the U.S. NAO alleging the discharge of workers attempting to form unions at Mexican maquiladora facilities of two major multinational corporations. Citing violations of Labor Principle 1 and the failure of Mexican labor law authorities to adequately protect the right to organize, the unions charged that several workers at an electronic controls plant of Honeywell Corporation and at an electric motor plant of the General Electric Company (GE) in Chihuahua were dismissed for union activity.

The U.S. NAO accepted the submissions for review in April 1994 and held a public hearing in Washington, D.C., that September. Workers from the Honeywell and GE factories in Mexico testified at the hearing, along with Mexican labor lawyers and U.S. union representatives. Neither of the companies appeared at the hearing. They defended their actions in written statements to the U.S. NAO, arguing that the dismissals were for lawful causes unrelated to union activity.

The U.S. NAO noted that its review “reveals disagreements about the events at each of the plants,” namely, whether workers were fired because of union activity or for lawful reasons unrelated to union activity. The NAO made no finding on the reasons for the workers’ discharge, but it noted that “the timing of the dismissals appears to coincide with organizing drives by independent unions at both plants.” The U.S. NAO cited “other relevant issues” including “difficulties in establishing unions in Mexico, the hurdles faced by independent unions in attaining legal recognition, company blacklisting of union activists … and government preference for and support of official unions.”

Despite this background, the U.S. NAO declared itself “not in a position to make a finding that the Government of Mexico failed to enforce the relevant worker laws.” The NAO noted that the dismissed workers’ acceptance of severance pay as indemnity for relinquishing their legal claims was in keeping with Mexican labor law.

Significantly, the NAO report did not conclude with a recommendation for ministerial consultations. Instead it called for a series of cooperative activities coordinated by the NAOs of the three NAALC parties on freedom of association and protection of the right to organize. U.S. unions sharply criticized this failure to advance the case to the consultation stage. The UE angrily withdrew another NAALC complaint it had filed charging GE with intimidating workers in a union representation election at the same Juarez plant where the first case had originated.

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The results of this first NAFTA case exposed a basic flaw in the NAALC: the law does not require signatory countries to change or improve labor law, but only to enforce existing law. Consequently, the NAO was unable to resolve an egregious worker rights problem for either the present or the future.

Despite the disappointment of worker rights advocates, this first test of the NAALC process set several procedural precedents that served worker rights supporters well in future cases. For one, the U.S. NAO made it clear that it would normally hold public hearings on a complaint. U.S. corporations had urged that hearings take place only in extraordinary circumstances. The U.S. NAO reversed this approach, saying it would only choose not to hold hearings in extraordinary circumstances.

Business organizations also had insisted that the NAO should not take up any case until all domestic labor law proceedings on the same issue had been exhausted. The NAO rejected this policy, requiring only that domestic procedures already have begun. In this case, dismissed workers had previously made domestic claims for indemnización (severance pay) under Mexican law. If they had been required to exhaust domestic remedies, several years would have passed before a complaint could have been made under the NAALC.

Corporate representatives also urged the NAO to refuse any complaint naming a specific company as an alleged worker rights violator. Since the NAALC deals with government obligations, they argued, complaints should mention only government conduct, without calling into question any actions by a private company or even allowing its name to appear in a complaint or to be mentioned in a public hearing. The NAO rejected this argument, on grounds that effective labor law enforcement can be measured only in light of specific cases and that events involving specific companies are relevant to the public review process.

Ease of access to the public review process also was reinforced in this first NAALC case. In addition to testimony by trade union leaders and workers from the GE and Honeywell plants in Juarez, the NAO also heard from U.S. and Canadian trade union leaders, panels of Mexican and U.S. labor lawyers, human rights activists and academic commentators.

Demonstrating the power of the law of unintended consequences, even press accounts of the NAO’s decision helped drive the U.S. NAO to call for more ministerial consultations in future cases. U.S. Secretary of Labor Robert Reich was speaking at a convention of the United Auto Workers union (UAW) on the day newspaper stories recounted the NAO’s report, which ended without recommending ministerial consultations. UAW members angrily waved newspapers with the headline “Reich sides with Mexican government on rights violations” and demanded an explanation. Furious, Reich instructed the NAO never to put him in a position like that again. Since that time, the U.S. NAO has never conducted a review and written a report without recommending ministerial consultations in the case, nor have the Canadian or Mexican NAOs.

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Sony (U.S. NAO Case No. 940003)

In August 1994, a coalition of four NGOs in the United States and Mexico filed a complaint alleging the discharge of workers and discrimination against dissident unionists at a Sony Corporation factory that manufactured tapes for videocassettes. The plant was located in a Mexican maquiladora industrial park in Nuevo Laredo, Tamaulipas, along the border with Texas. In their joint complaint, the International Labor Rights Fund (ILRF), the Coalition for Justice in the Maquiladoras, the American Friends Service Committee and the Asociación Nacional de Abogados Democráticos (ANAD) of Mexico cited collusion by management, incumbent union leaders and local political officials to crush an attempt to elect new union leadership. Dissident union leaders were fired, and police attacked a peaceful march of independent union members.

The U.S. NAO accepted the submission in October 1994. In February 1995, in San Antonio, Texas, the NAO held a public hearing addressed by Mexican workers, their attorneys and U.S. supporters. Sony management refused to appear at the hearing. Much of the testimony dealt with Mexico’s Conciliation and Arbitration Boards (CABs), the tripartite agencies with government, labor and management representatives that adjudicate all labor disputes.

Citing allegations of blacklisting against workers who supported the independent union leadership group, the “plausible” argument that they were fired for union activity, evidence of police violence against workers and “irreparable harm” from delays in legal proceedings, the U.S. NAO recommended the first ministerial consultations under the NAALC. These resulted in a program of activities, including: tri-national workshops and public conferences in Mexico and the United States on union registration and certification; a special study by independent Mexican labor law experts, dealing with union registration and its implementation; and a series of meetings by officials of the Mexican Department of Labor and Social Welfare with Sony workers, local labor authorities and company representatives.

In December 1996, the U.S. NAO issued a follow-up report on the Sony case. The report discussed the current status of Sony workers, the Mexican initiatives presently aimed at changing the labor law and the decisions of the Mexican Supreme Court that appeared to provide greater rights for independent union organizers. It concluded that “potentially significant developments” were continuing to take place in Mexico on a wide range of labor issues, including labor legislation, labor-management relations, labor-government relations and internal union operations. Though the situation on the ground did not change, independent union advocates in Mexico maintained that the international attention sustained the independent Sony workers’ movement, which is still active today.

Pesca Union (U.S. NAO Case No. 9601)

In June 1996, the ILRF, Human Rights Watch and the Mexican lawyers group ANAD filed a complaint with the U.S. NAO on behalf of the Sindicato Unico de Trabajadores

110 Worker Rights and Regional Trade Pacts de la Secretaría de Pesca (SUTSP or Pesca [fisheries] union), which had long represented employees of the Mexican fisheries ministry. The union had lost its representation rights when the fisheries ministry merged with a larger ministry of environment and natural resources.

The submission alleged that the new ministry and the labor authorities improperly revoked the Pesca union’s registration and granted recognition and favorable treatment to the larger, pro-government union at the environment and natural resources ministry. The submission raised issues concerning a federal labor law requirement prohibiting more than one union in a governmental entity. Complainants noted that this action violated both ILO Convention No. 87 (which under the Mexican constitution is part of the country’s domestic law) and Mexico’s own constitutional guarantee of freedom of association. Complainants also charged that the participation in the CAB by union representatives who might have a conflict of interest in ruling on disputes with another union violated the NAALC’s requirement for impartial labor tribunals.

The U.S. NAO accepted the petition for review in August 1996. It held a public hearing in Washington, D.C., in December 1996, with testimony from representatives of the submitting U.S. and Mexican organizations, union representatives and counsel from the contending unions, interested public citizens and a representative of the Mexican labor department. As part of its review, the U.S. NAO also commissioned special studies on labor law enforcement in the federal sector.

In January 1997, the U.S. NAO issued a report recommending ministerial consultations on relevant legal doctrines in Mexico, including the effects on Mexican labor law of constitutional provisions assuring freedom of association, “for the purpose of examining the relationship between, and the effect of, international treaties, such as ILO Convention No. 87 and constitutional provisions on freedom of association on the national labor laws of Mexico.” This was the first case with an extensive discussion of ILO Conventions and their applicability in the NAALC context.

Mexico agreed to engage in consultations in March 1997. The follow-up program centered on an international conference on the application of treaties on national labor law. On the ground, however, further action became unnecessary. A series of Mexican court decisions found in favor of the independent union. In related cases, the trade union monopoly in the public employee sector was found unconstitutional by the Supreme Court of Mexico. In the end, registration was restored to the Pesca union, which has continued to try to organize the merged ministry in competition with the big- ger union. Although it has not been successful thus far, the union and its leaders still play a role in the independent labor movement in Mexico.

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Maxi-Switch (U.S. NAO Case No. 9602)

The Communications Workers of America (CWA) filed a complaint with the U.S. NAO in October 1996 on behalf of the Mexican telephone workers’ union, the STRM. The submission alleged that the workers’ attempt to organize a union affiliated with the STRM at the Maxi-Switch facility in Cananea, Sonora, was thwarted by a collusive “protection contract” between the company and another union affiliated with the dominant union federation. The submission argued that the contract was made without employees’ knowledge or consent and that the local CAB had improperly denied registration to the STRM group.

In December 1996, the U.S. NAO scheduled a public hearing to be held in Tucson, Arizona, on April 18, 1997. However, on April 15, 1997, the CWA withdrew the submission at the request of the STRM because the labor authorities in Mexico had taken steps to resolve the issue to the satisfaction of the union. Accordingly, the public hearing was canceled.

Pregnancy Testing in the Maquiladora (U.S. NAO Case No. 9701)

In May 1997, two U.S.-based human rights groups, Human Rights Watch and the ILRF, along with the ANAD of Mexico, filed a complaint with the U.S. NAO alleging “a pattern of widespread, state-tolerated sex discrimination against prospective and actual female workers in the maquiladora sector along the Mexico-U.S. border.” The submission alleged a common practice of requiring pregnancy testing of all female job applicants and denying employment to those whose test results were positive. The submission also said that employers pressured employees who became pregnant to leave their jobs. Companies did this, the submission argued, to avoid the legal requirement of three months’ fully paid maternity leave for workers who gave birth.

The complainants argued that this employer practice, along with the labor authorities’ failure to combat it—sometimes by omission, sometimes by overt support for the employers’ discriminatory policy—violated Mexico’s obligations under the NAALC. The complaint sought a U.S. NAO review, public hearings in cities along the Mexico-U.S. border and the formation of an ECE to report on employment practices related to pregnancy in Canada, Mexico and the United States.

In January 1998, the U.S. NAO issued a report confirming widespread pregnancy testing that discriminated against women workers. Citing workers’ direct testimony, the NAO found that pregnancy testing affected both women who were applying for work and those who were already employed. On pre-hire pregnancy discrimination, the NAO met with confusion, among both Mexican government officials and labor law experts, about whether nondiscrimination rules in Mexican law applied to persons not yet employed and whether employers thus were legally free to discriminate against women applicants if they were pregnant. Post-hire discrimination against women was conceded to be unlawful. The NAO found that some women obtained relief through labor law enforcement, but that

112 Worker Rights and Regional Trade Pacts many others were unaware of their rights, of available protections and of the means and procedures for seeking redress. Ministerial consultations were recommended.

Upon the conclusion of ministerial consultations in October 1998, the labor secretaries of Canada, Mexico and the United States approved a program of workshops for government enforcement officials, outreach to women workers and an international conference on gender discrimination issues. In the meantime, some U.S. companies in the maquiladora zones announced they would halt pregnancy testing, and the federal government prohibited pregnancy testing of women applying for employment in federal ministries. Female legislators in the Mexican Congress have subsequently introduced bills that would clarify the applicability of nondiscrimination requirements in the pre-hire context for women applying for positions. The pregnancy testing case may still give rise to the first ECE under the NAALC.

Han Young (U.S. NAO Case No. 9702)

In October 1997, a coalition of Mexican and U.S. unions and NGOs filed a NAALC complaint about events at the Han Young factory in Tijuana, Baja California, a supplier to Hyundai. Workers, believing they had no union, moved to register a new one, but management produced a union contract with a local, pro-government union federation that blocked any new organizing effort. Han Young workers had never heard of the union or seen the contract.

A cross-border solidarity movement, including informational picketing at Hyundai dealer- ships in the United States, resulted in an unprecedented reversal on the part of Mexican authorities. The independent union received its registration. However, management still resisted bargaining.

After a series of serious health and safety incidents in the plant resulting in burns, broken bones, respiratory illnesses and hearing and vision loss, an expanded coalition joined by Canadian unionists filed an amended submission in February 1998. The group added health and safety issues under Labor Principle 9 of the NAALC, arguing that Mexican enforcement authorities did nothing to apply federal health and safety laws at Han Young. This became the first NAALC case susceptible to arbitration and possible fines against the government or trade sanctions against the company, since health and safety is one of three matters, along with minimum wage and child labor violations, that can reach this stage in the NAALC process.

After a public hearing in San Diego on Han Young’s health and safety hazards, the Mexican government fined the company $9,000. It was the largest fine against an employer for safety violations in Mexican history. Later in 1998, the company moved to a new factory with improved safety conditions.

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The U.S. NAO’s report in August 1998 found serious health and safety hazards and recommended ministerial consultations. The resulting program included public forums on workers’ organizing rights and on workplace health and safety. While the matter proceeded through the different stages of the NAALC process, Han Young workers maintained their independent organizing and bargaining efforts, with occasional strikes to back up their demands. The company and state government authorities, meanwhile, promoted the former “ghost” union as their preferred bargaining agent. The company subsequently closed the plant but later reopened it. The situation remains unresolved.

Echlin/ITAPSA (U.S. NAO Case No. 9703; Canada NAO Case No. 98-1)

A broad coalition of more than 30 U.S., Canadian and Mexican unions and human rights groups filed two separate NAALC complaints, one with the U.S. NAO in late 1997 and one with the Canadian NAO (the first case filed in Canada) in mid-1998. The submission involved efforts by an independent affiliated union in Mexico to supplant a pro-government CTM union at a Mexico City auto parts factory called ITAPSA, which was owned by the U.S.-based Echlin Corporation. The complaints also cited health and safety violations involving exposure to asbestos and other toxic substances without adequate personal protective equipment.

Concerned in part about health and safety hazards, a majority of ITAPSA workers sought to enlist the independent metalworkers’ union STIMAHCS to represent them. The CTM responded by launching a campaign of threats and violence against STIMAHCS supporters. Company management sided with the incumbent union, firing several independent unionists and hiring new employees sent by the CTM to break up the independent organizing drive.

Events culminated on the day of an election between the two unions, which was held not by secret ballot but by an open declaration in front of company and CTM officials. On the day of the election, dozens of men from the CTM, armed with sticks, chains, bars and metal rods, were given free run of plant premises, where they threatened to kill any workers who voted for STIMAHCS. The election and the reinstatement appeals from fired workers were all conducted by a tripartite CAB made up of government, employer and labor representatives. The labor officials on the CAB handling the Echlin case were all from the CTM, creating an inherent conflict of interest.

Both the U.S. and Canadian NAOs held public hearings in the two Echlin cases where workers recounted these events and supporters voiced outrage. Unionists from the United States organized protests at Echlin stockholders’ meetings. Unions also were instrumental in persuading the state legislature of Connecticut, Echlin’s corporate home, not to pass legislation sought by Echlin management protecting Echlin against a hostile takeover. Such a takeover was accomplished by Dana Corporation, the largest U.S. auto parts manufacturer, and the union coalition entered into negotiations with Dana to resolve the

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Echlin dispute. In the meantime, the U.S. and Canadian NAOs issued hard-hitting reports in 1998 and 1999 on the apparent worker rights violations and recommended ministerial consultations on the matter. The labor ministers of the three NAALC countries crafted an extensive follow-up program that included a special seminar on the workings of labor boards in the three countries, a government-to-government meeting on techniques and policies to promote compliance with health and safety regulations and a program to disseminate information resulting from these events.

Aerovías de Mexico Flight Attendants (U.S. NAO Case No. 9801)

In August 1998, the Association of Flight Attendants (AFA), the principal U.S. union of flight attendants, filed a complaint with the U.S. NAO on behalf of its Mexican union counterpart, the Flight Attendants Association (ASSA). The submission was filed in response to then-President Ernesto Zedillo’s back-to-work order to end a strike begun on June 1, 1998, by attendants at Aerovías de México, a recently privatized airline company. Zedillo used executive authority under laws permitting a requisa, a government takeover of an enterprise where national security, defined as military or economic, was at stake. The complaint argued that government intervention in the strike violated Mexico’s constitutional protection of the right to strike.

Soon after the submission was filed, ASSA reached a contract agreement with the airline on terms that the union declared victorious. The strike settlement removed the U.S. NAO from a difficult position. Trade unionists had been pressuring the NAO to accept the case for review. However, the Mexican government had insisted that emergency powers to end strikes that affected economic security lay at the heart of any country’s sovereignty, and that acceptance of the case by the NAO could provoke a diplomatic crisis. The U.S. NAO declined to accept the submission for review, stating that the issue was “better left to appropriate domestic fora.”

Although it declined to accept the case for review, the NAO added that it would engage an outside consultant for further research on how all three countries reconcile the principle of the right to strike with national interests of safety, security and the general welfare. Titled Emergency Procedures for Resolving Labor-Management Disputes in the United States, Canada and Mexico, the consultants’ report was released in September 2000 and is available on the web site of the U.S. NAO.

TAESA (U.S. NAO Case No. 9901)

On Nov. 10, 1999, the AFA and ASSA filed a new complaint on violations of freedom of association, minimum employment standards (including violations of overtime, pension and wage requirements) and health and safety rules at TAESA, a low-cost airline that flew to a number of U.S. cities, including Oakland and Chicago. The featured incident in the complaint involved the airline’s firing of 100 flight attendants who had voted for union

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representation by ASSA and against an incumbent, government-affiliated union. The vote had been conducted at company headquarters in a procedure whereby each worker had to declare support for ASSA or for the incumbent union in the presence of company and union officials, who openly took notes on how workers voted. Reprisals had been taken almost immediately against ASSA supporters.

In January 2000, the U.S. NAO accepted the case for review and scheduled a public hearing in Washington, D.C. At the March 2000 hearing, the presidents of the two unions, joined by dismissed flight attendants, labor lawyers and the AFL-CIO’s Mexico representative, testified on the election, minimum labor standards violations and health and safety hazards. The witnesses presented compelling and disturbing testimony about threats and intimidation during the election, excessive overtime, unsafe pas- senger cabin conditions, a lack of emergency training and the company’s failure to make timely and complete payments for workers’ health insurance, pension and housing funds.

The U.S. NAO issued its report on the case in May 2000, crediting witnesses’ accounts and recommending ministerial consultations. Labor ministers subsequently designed a program of public forums in the United States and in Mexico for early 2001 that included participation by national and international trade union leaders.

Autotrim/Breed Technologies (U.S. NAO Case No. 2000-01)

In July 2000, a coalition of more than 20 trade unions, NGOs and student organizations filed a complaint with the U.S. NAO over events at the U.S.-based corporation Breed Technologies’ Autotrim plant, located in the Mexican state of Tamaulipas. Autotrim supplied wheel covers and gear shift covers for General Motors, Ford and Daimler- Chrysler. Petitioners included current and former plant workers, the Coalition for Justice in the Maquiladoras, Mexican labor unions, human rights and religious organizations, the AFL-CIO and several affiliated U.S. unions, a number of worker health and safety support groups and students from human rights clinics at St. Mary’s law school in San Antonio, Texas, and Columbia University’s law school in New York City.

The complaint focused on health and safety matters in the Autotrim plant, citing widespread illnesses and injuries from exposure to toxic materials and musculoskeletal dis- orders caused by poor ergonomics. It charged that illnesses and injuries were underre- ported and undercompensated. The complaint further stated that the Mexican government failed to monitor compliance, investigate suspected violations, require record- keeping and reporting, seek appropriate sanctions or remedies, guarantee access to tribunals for enforcement or ensure that all proceedings for the enforcement of labor law were fair, equitable, transparent and not unnecessarily complicated or subject to unwarranted delays—all of which were obligations under the NAALC.

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At a public hearing held by the U.S. NAO in San Antonio, Texas, on Dec. 12, 2000, several Autotrim workers testified that they had suffered injuries and had been exposed to severe health hazards, including open containers of chemicals such as benzene, toluene, methyl chloroform and other known carcinogens. Workers explained that they stretched, sewed and glued leather—using toxic glues and solvents—onto steering wheels and gear shifts in close quarters with no ventilation and no personal protective equipment. Their symptoms included chronic sore throats, respiratory problems, nau- sea, memory problems and rashes. Injuries related to substandard ergonomic practices included chronic pain in the hand, wrist, arm and back, along with diminished mobili- ty and use of hands, wrists and arms. Workers also reported an unusually high rate of birth defects in their children. Below are examples of these workplace-related illnesses and injuries.

A worker who had been employed at Autotrim from 1991 to 1994 testified that she and other employees never wore any personal protective equipment such as masks, gloves or safety glasses. Another former worker testified that she often felt faint on the job and suffered headaches, but plant supervisors had told her and other workers that the illnesses were “normal and harmless reactions to the use of glues and chemicals.”

Another former employee testified that he did not receive any type of training or information about the hazards of exposure to glues and solvents or on how to diminish risk. Plant managers frequently failed to refer workers to the Mexican Institute of Social Security when employees became sick or suffered injuries on the job, another former worker testified.

A Mexican toxicologist specializing in occupational health and safety charged Mexican government authorities with gross negligence and disregard of workers’ health. He told hearing attendees that Autotrim’s management had systematically violated Mexican laws in spite of clear and precise regulations that mandate the health and safety of employees in the workplace. For example, authorities had failed to address employee reports regarding the lack of proper ventilation systems at the plants and the lack of gloves to prevent the absorption of toxic substances into the workers’ skin.

In April 2001, the U.S. NAO issued a report confirming in large part the allegations contained in the complaint and calling for ministerial consultations with Mexico. However, with delays in key Labor Department appointments by the Bush administration, consultations did not get underway until December 2001. Trade unions and NGOs involved in the complaint urged the Labor Department to form an ECE. But in February 2002, the DOL refused, citing ongoing ministerial consultations. In March 2002, the petitioners protested that they were not kept informed of the progress of consultations, nor given the opportunity to participate in the process. As of April 2003, such consultations had not concluded, and the DOL had not responded to the petitioners’ protest.

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Duro Bag Manufacturing Corporation (U.S. NAO Case No. 2001-01)

On June 29, 2001, the AFL-CIO and the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE) filed a submission on violations in a union representation election at the Duro Bag Manufacturing Corporation facility in Rio Bravo, Tamaulipas, Mexico. Duro Bag is a producer of premium shopping bags for retail sales and is based in Ludlow, Kentucky. The petition charged that Mexico violated workers’ right to a free, fair election of their bargaining representative by rejecting a request for a secret ballot election at a neutral location and under conditions free from management coercion.

This case goes to the heart of the NAALC and whether a government will live up to its commitments made pursuant to the NAALC or ignore those commitments. The facts of the case are similar to earlier ones involving events at Han Young and ITAPSA, but with a key difference. Those cases led to a ministerial agreement between the United States and Mexico supporting secret ballot elections for workers in their choice of trade union representative. A free and fair election was denied to workers at the Duro Bag Manufacturing Corp. plant on March 2, 2001, in direct violation of this agreement. Duro management colluded with government authorities to require an open, oral voting procedure where one by one, workers had to declare their choice of representative in front of management and government officials.

The most alarming aspect of the Duro case in light of the NAALC is the government of Mexico’s manifest failure to live up to its commitments in a 2000 Ministerial Agreement to make “efforts … to promote the use of eligible voter lists and secret ballot elections over the right to hold the collective bargaining contract … and promote secret ballots and neutral voting places ….” The government of Mexico abandoned this secret ballot agreement, making no effort in the Duro case to fulfill its promise. On the contrary, the government allowed Duro management and the labor board to force workers into public declarations of their union sentiments in a non-neutral location under conditions totally destructive of the free choice of union representation.

By denying an election that afforded workers the genuine freedom to choose, the government of Mexico violated its obligations under Articles 2.5 of the NAALC to:

ensure that its labor law and regulations provide for high labor standards;

continue to strive to improve those standards;

promote compliance with and effectively enforce its labor law through appropriate government action;

ensure that its administrative, quasi-judicial, judicial and labor tribunal proceedings are fair, equitable and transparent; and

provide that parties to administrative, quasi-judicial, judicial and labor tribunal proceedings may seek remedies to ensure the enforcement of their labor rights.

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The government of Mexico also failed to effectively enforce Mexican laws meant to protect workers’ freedom of association and rights to organize and bargain collectively, such as Article 123 of the Constitution, which guarantees workers’ right of association and right to form unions to defend their interests, as well as ILO Convention No. 87, ratified by Mexico and thus part of Mexico’s domestic legislation, which protects workers’ freedom of association and right to establish organizations of their own choosing for furthering and defending their interests.

In February 2002, the U.S. NAO refused to accept the AFL-CIO/PACE submission. The NAO excused the violations of workers’ rights on the grounds that Mexican law does not specifically require secret ballot elections. The NAO ignored Mexico’s commitment in the earlier ministerial agreement to hold secret ballot elections. The AFL-CIO and PACE have appealed that decision.

The U.S. NAO decision was an ominous signal, among many others, that the Bush administration is moving backward on worker rights in trade. The refusal to take up the Duro case underscored the importance for trade unionists and allied human rights advocates of stopping the Free Trade Area of the Americas (FTAA) and other trade agreements that do not have a solid social dimension.

Cases Involving Alleged Worker Rights Violations in the United States

Sprint (Mexico NAO Case No. 9501)

The Mexican telephone workers’ union STRM filed a complaint with the Mexican NAO in February 1995, regarding the sudden closing of a Spanish-language telemarketing facility of the Sprint Corporation in San Francisco, California. The complaint alleged that the shutdown was motivated by anti-union bias. The STRM collaborated with its U.S. counterpart, the CWA, which was attempting to organize the Sprint facility.

The NAO of Mexico accepted the submission for review and issued a report on May 31, 1995. The report expressed its concern about “the effectiveness of certain measures intended to guarantee freedom of association and the right of workers to organize” and “possible problems in the effective application of U.S. law” and recommended ministerial consultations in the matter. Ensuing consultations resulted in an agreement in February 1996 between the labor secretaries of Mexico and the United States and the labor minister of Canada. The agreement called for a three-part program, including a public forum, a special report by the Secretariat on the effects of sudden plant closings on the principle of freedom of association and protection of the right to organize in Canada, Mexico and the United States and the provision of an update by the U.S. Secretary of Labor to the Secretary of Labor of Mexico. The update would cover developments in the U.S. domestic legal case that had prompted the original submission and ministerial consultations.

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In February 1996, the public forum was held in San Francisco. Presentations were made by workers affected by the plant closing, by union representatives from the STRM and the CWA and by trade unionists from Germany and Great Britain. Testimony also was offered by a law professor speaking on behalf of Sprint and by academic analysts.

In December 1996, the U.S. National Labor Relations Board (NLRB) ruled that the plant closing by Sprint was motivated by anti-union animus and ordered the employer to rehire affected workers into openings in other company divisions. The NLRB also ordered Sprint to provide back pay for lost wages. Sprint appealed the NLRB decision to a U.S. Federal Court of Appeals.

In April 1997, the Secretariat issued its special report, titled Plant Closings and Labor Rights. The report, available at http://www.naalc.org/english/publications/nalmcp.htm, explained legal frameworks and union organizing systems in the United States, Canada and Mexico. It also reviewed each country’s administrative tribunal and court decisions dealing with plant closings and threats of plant closings executed to resist union organizing efforts by workers. The Secretariat found that such anti-union tactics were widespread in the United States but less prevalent in the other countries. In Canada, this situation was due to stronger enforcement. In Mexico, it was due to differences in the union organizing system, which rarely involved an election “campaign” where threats of closing or decisions to close were made.

In November 1997, the U.S. Federal Court of Appeals reversed the NLRB’s decision that had found Sprint liable for an unlawful plant closing motivated by anti-union bias. The court ruled in favor of the company, finding that the closing was motivated by legitimate business considerations, not by anti-unionism.20 This decision effectively foreclosed any further action under the NAALC, since the agreement does not provide a means of overturning or reversing a ruling by domestic labor authorities.

Solec, Inc. (Mexico NAO Case No. 9801)

In April 1998, Local I-675 of the U.S.-based Oil, Chemical and Atomic Workers (OCAW) was joined by a San Diego, California-based NGO and two independent Mexican local unions in the Tijuana region in a complaint filed with the NAO of Mexico. The submission cited anti-union activities at Solec, Inc., a company in Carson, California, that manufactured solar panels sold mainly to the Sanyo Corporation of Japan. The complaint also noted the alleged failure of U.S. labor law authorities to effectively enforce domestic labor law in union organizing and in health and safety matters.

The case involved a union organizing attempt by OCAW at Solec. According to the complainants, the organizing effort had been prompted by severe health and safety problems at the plant. The union had won the NLRB election, but certification and bargaining had been delayed by legal maneuvering on the part of the employer, which had been advised by a professional anti-union consultant. The NAO of Mexico accepted the case for review and issued a report in August 1999, recommending ministerial consul-

120 Worker Rights and Regional Trade Pacts tations. A consultation program was discussed in 2000 but was not implemented after OCAW reported that it had secured a collective agreement at the plant and preferred not to press the case forward. However, issues raised in the Solec case were subsequently folded into ministerial consultations arising from concurrent cases filed on behalf of migrant workers in the states of Washington and Maine.

Washington State Apple Industry (Mexico NAO Case No. 9802)

In May 1998, a coalition of Mexican trade unions and farm worker organizations filed a wide- ranging NAALC complaint with the Mexican NAO. The submission alleged failure of U.S. labor law to protect worker rights in the Washington state apple industry. The complaint cited the lack of legal protection for farm worker union organizing, widespread health and safety violations, discrimination against migrant workers and employers’ use of threats and intimidation in union representation elections in apple packing and shipping facilities.

The coalition consisted of the Union Nacional de Trabajadores (UNT), a new independent Mexican labor federation; the Frente Auténtico del Trabajo (FAT), another independent Mexican labor group; the Frente Democrático Campesino (FDC) of Mexico; and the IBT and United Farm Workers unions, which were conducting domestic organizing campaigns in the apple sector. The complaint called upon the Mexican government to pursue multiple stages of review, consultation, evaluation and arbitration under the NAALC.

The NAALC apple workers submission is the broadest case yet filed under the NAALC, citing labor law violations and inadequate enforcement in areas encompassed in seven of the NAALC’s 11 labor principles. Most earlier cases addressed only union organizing issues. The Washington state apple industry complaint covered the right to organize, collective bargaining, minimum labor standards, nondiscrimination in employment, job safety and health, workers’ compensation and migrant worker protection. The filing generated a burst of publicity by calling attention to the conditions of migrant workers and to the opportunity for advocacy presented by the NAALC.

The NAO of Mexico accepted the Washington apple case for review in August 1998. In December 1998, the NAO of Mexico held its first-ever hearing on a NAALC complaint. It was not a public hearing in the quasi-legal style of the U.S. and Canadian NAOs, but rather an “informative session” under the Mexican NAO procedural guidelines, a meeting conducted in private in a roundtable setting. A delegation of workers from packing sheds and orchards in Washington attended the hearing and presented direct testimony about pesti- cide poisoning, discharge for union activity, minimum wage violations, discrimination in the workers’ compensation system, discrimination against migrant workers and other violations of worker rights.

The hearing garnered widespread publicity in the news media of both the United States and Mexico. The NAO of Mexico was to issue its report in February 1999, but the report was delayed by personnel changes in both the Department of Labor and the NAO. The

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report was finally issued in August 1999, and on Aug. 20, Mexico’s secretary of labor formally requested ministerial consultations with the U.S. secretary of labor. This development sparked a new round of publicity and attention to the conditions of migrant workers in the industry. In April 2000, the governments announced a program of events resulting from the consultations, including a public forum for workers, unions, employers and government officials and an “outreach” effort by labor law enforcement personnel.

DeCoster Egg Farm (Mexico NAO Case No. 9803)

In August 1998, the CTM labor federation filed an NAALC complaint with the NAO of Mexico on the abusive treatment of migrant Mexican workers at the DeCoster Egg Farm, an egg processing facility located in Maine. This was the first engagement of the official pro-government labor organization in an NAALC case. The submission alleged violations and failure to effectively enforce laws regarding minimum wages, health and safety, housing conditions, workers’ compensation for work-related injuries and illnesses and other minimum conditions of work.

The NAALC complaint followed the filing of a class action lawsuit in U.S. Federal Court by the Mexican government on behalf of 1,500 current and former DeCoster employees over the same allegations. In October 2000, the Federal Appeals Court ruled that the Mexican government did not have the standing to bring such a lawsuit. The suit could be pursued by individual plaintiffs, said the court, and Mexico could assist the plaintiffs financially or by paying plaintiffs’ attorneys. But the doctrine of parens patriae, which allowed U.S. states to file suits on behalf of citizens, did not extend to a foreign nation “which asserts only quasi-sovereign interests and not its own proprietary interests.”21

Meanwhile, the NAO of Mexico had accepted the DeCoster case for review. A report recommending ministerial consultations was issued in August 1999, at the same time as the Washington apple case report. A follow-up program similar to that designed for the Washington apple case was also announced for the DeCoster case.

Labor Department/INS Memorandum of Understanding (Mexico NAO Case No. 9804; Canada NAO Case No. 98-2)

In September 1998, a worker rights project of students at Yale Law School, joined by 20 local and national immigrants’ rights organizations, filed complaints with both the Mexican and Canadian NAOs. The complaints challenged a policy laid out in a Memorandum of Understanding (MOU) between the U.S. Department of Labor (DOL) and the Immigration and Naturalization Service (INS). Under the MOU, DOL inspectors who received complaints alleging violations of minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA) were required to determine the immigration status of workers who had filed complaints. If any worker could not pro-

122 Worker Rights and Regional Trade Pacts duce authentic documentation, the Labor Department would inform the INS, and the worker would face deportation.

The effects of this MOU on the effective enforcement of U.S. labor law were obvious. Workers whose immigration status was questionable were loath to complain when their rights had been violated for fear that the DOL would report them to the INS. This situation set a vicious cycle in motion. Employers hired immigrant workers with only a glance at their documentation, then cheated workers on minimum wage and overtime pay in full confidence that the workers would never complain to the DOL. Even workers with proper documentation did not complain, because an investigation might reach their co-workers, often relatives or friends from the same country whose documents were questionable. The students who brought the NAALC complaint hoped that international scrutiny would end the policy that made the DOL an informant for the INS.

Shortly after the NAALC complaint was filed, the DOL issued a revised MOU on its dealings with the INS. Under the new MOU, DOL agents would not inform the INS about the immigration status of any worker who filed an individual complaint for unpaid minimum wages or overtime pay. However, the DOL could still inform the INS of findings in workplaces that had been inspected in routine, programmed inspections rather than in response to a complaint.

In December 1998, the NAO of Mexico announced that it had accepted the MOU case for review. The NAO of Canada announced that it would wait for more information from the complainants on the effects of this change before deciding whether to accept the case for review. Subsequently, in April 1999, the NAO declined the case on the grounds that the revised MOU had addressed the issues raised by complainants. In December 2000, the Mexican NAO issued a report recommending ministerial consultations.

Labor Policy Association and Section 8(a)(2) of the National Labor Relations Act (NLRA) (Canada NAO Case No. 99-1)

On April 14, 1999, the Labor Policy Association (LPA), a management group that often opposes unions and unionization, filed the first employer-initiated complaint under the NAALC. In its submission to the Canadian NAO, the LPA charged that the United States failed to promote labor-management cooperation under the NAALC through the NLRB’s application of Section 8(a)(2) of the National Labor Relations Act (NLRA), which prohibits employer domination of labor organizations.

The LPA was joined in the complaint by the EFCO company, which the NLRB had ordered to disband its employee participation committees on the grounds that management had sponsored and dominated these “teams” to deal with wages, hours and working conditions. Under Section 8(a)(2), only bona fide trade unions are allowed to represent workers on these issues.

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Since this was the first substantive complaint filed by an employer under the NAALC, it received careful attention.22 The LPA complaint cited what it called “the failure of the United States to uphold the principles, obligations and objectives contained in the North American Agreement on Labor Cooperation concerning labor-management cooperation and employee involvement and participation in non-union settings” and “the failure of the United States to apply effectively and enforce its laws and resolve disputes, without undue delay, concerning employee involvement under Section 8(a)(2) of the National Labor Relations Act.”

The complaint charged that failure to properly apply the law prohibited effective employee involvement and participation in non-union workplaces, thus violating the principles, obligations and objectives embodied in the NAALC. The complaint argued that the NLRB’s interpretation of Section 8(a)(2) was inconsistent with the legislative history of the NLRA and with the NLRB’s mandate to interpret the act in light of changing industrial times. It concluded that the United States was in violation of the NAALC through its ineffective and improper application and enforcement of the law.

At the heart of the LPA complaint was the argument that “employee involvement is the contemporary global mode of production for the most highly productive and competitive companies” but that “despite the widespread support for these programs, “the NLRB has been, and continues to, systematically prosecute companies that promote employee involvement under an interpretation of Section 8(a)(2) that has outlived its usefulness.”

The LPA acknowledged that “company” unions were a serious problem in 1935 when Section 8(a)(2) was enacted. However, the LPA claimed that “the industrial and labor climates have significantly changed since 1935 and ‘company’ unions are far from prevalent. … Yet the NLRB, charged with interpreting the NLRA to respond to changes in the workplace, refuses to accept this mandate and interpret Section 8(a)(2) in light of the fundamental changes in the common mode of production since the NLRA was enacted.”

To ensure that its complaint would be subject to consideration by an ECE and an arbitral panel, the LPA emphasized the health and safety aspects of employee involvement programs. “The NAALC specifically addresses labor-management cooperation and employee involvement in the area of occupational safety and health,” the complaint declared. “Although the United States NLRB applies United States federal law to prohibit effective employee involvement, other United States agencies encourage, and arguably require, employee involvement to address occupational safety and health issues.” As a result, “effective employee participation and involvement would be in direct violation of Section 8(a)(2) of the U.S. NLRA as interpreted by the NLRB. Clearly, with the exception of the NLRB, the U.S. Administration has long recognized the importance of effective employee involvement programs to address occupational safety and health issues. Yet, the U.S. Administration has been unable or unwilling to bring its NLRB into accord with these policies, thereby creating the breakdown in U.S. policy that necessi- tates this submission.”

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The LPA told the Canadian NAO that “effective employee involvement in non-union settings is prohibited in the United States,” asking the NAO to take a number of actions. Among these were requests to impose sanctions on the United States for failing to allow effective employee involvement in non-union workplaces, to issue a declaration noting that the United States had violated principles and obligations found in the NAALC and to encourage the United States to amend its labor law. The U.S. NAO and the AFL-CIO made written arguments to the Canadian NAO asking it not to accept the complaint for review. The AFL-CIO argued that, if anything, the LPA was complaining about overly effective enforcement of Section 8(a)(2) of the NLRA, not a failure of enforcement.

The LPA complaint was rejected by the NAO of Canada on the grounds that it did not raise matters related to the failure to effectively enforce national labor law. In a letter to the LPA, the Canadian NAO secretary said that its submission “did not raise issues related to the enforcement of labor legislation,” as required under the NAALC. “After careful consideration,” said the Canadian NAO secretary, “I have decided not to accept this Public Communication on Employee Involvement in the United States Nonunion Workplaces for review. In your submission, you assert that there is a failure by the United States with regard to its obligations under the North American Agreement on Labor Cooperation …. A review of the information does not indicate a failure to comply with the obligations of the agreement, including enforcement of labor law.”

The LPA appealed this decision. Under the Canadian NAO’s guidelines, parties submitting complaints can seek a review of a rejection and ask the agency to provide its reasons for not accepting a complaint. LPA told the NAO in its appeal that the NAALC provides that the parties resolve “to promote, in accordance with the respective laws, high skill, high productivity economic development … by … encouraging employers and employees … to work together in maintaining a progressive, fair, safe and healthy working environment.” The appeal argued that if “the United States Occupational Safety and Health Administration requires workplace safety and health teams, a requirement that furthers two objectives of the NAALC, while the U.S. National Labor Relations Board prohibits them, then it would seem that there is a fundamental failure by the United States to comply with the obligations of the agreement.” The Canadian NAO again declined to accept the LPA’s complaint for review, stating that the appeal did not contain any new information as grounds for reversing its decision.

New York State Workers’ Compensation System (Mexico NAO Case No. 2001-1)

On Oct. 24, 2001, the Mexican NAO received a complaint alleging that the United States had failed to effectively enforce workers’ compensation and occupational safety and health laws in the state of New York. Filers included individual workers and several New York immigrant worker rights groups, including the Chinese Staff and Workers’ Association (CSWA), National Mobilization Against Sweatshops (NMASS), Workers’ Awaaz and Asociación Tepeyac.

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In addition to alleging that the United States had not complied with its obligation under NAALC Article 3 to promote Labor Principles 9 (prevention of occupational injuries and illnesses) and 10 (compensation in cases of occupational injuries and illnesses), the submission argued that the United States and the state of New York had not complied with the NAALC Article 5(1)(d) obligation to ensure that administrative proceedings in labor and employment matters “are not unnecessarily complicated and do not entail unreasonable charges or time limits or unwarranted delays.” The complaint alleged that hearings before New York workers’ compensation administrative law judges had not followed the formal rules of procedure or evidence. As a result, arbitrary decisions had caused the workers’ compensation claims process to last as long as 4 to 10—and sometimes 20—years.

Complainants also alleged that the New York State Workers’ Compensation Board rules and procedures did not provide for translators for workers who did not speak English. In addition, the submitters argued that the Board’s rules and procedure for workplace injuries allowed employers and private workers’ compensation insurance carriers to misuse the process to avoid timely payment of benefits, thereby creating a disincentive to the maintenance of a safe and healthy workplace.

The Mexican NAO accepted the public communication on Nov. 15, 2001. As of April 2003, the review was still ongoing.

Cases Involving Alleged Worker Rights Violations in Canada

McDonald’s (U.S. NAO Case No. 9803)

Joined by the Quebec Federation of Labor and the ILRF, the IBT and its Quebec affiliates filed a NAALC complaint with the U.S. NAO in October 1998 over the closure of a McDonald’s restaurant in St. Hubert, Quebec, shortly before the union was certified to bargain for workers there. This was the first NAALC case regarding labor issues in a Canadian jurisdiction.

Citing legal violations and the lack of effective enforcement related to Labor Principles 1 and 2 on freedom of association and protection of the rights to organize and bargain collectively, the complainants argued that McDonald’s used loopholes and delaying tactics to string out union representation proceedings before the Quebec labor board for one year. The company had prolonged proceedings by arguing falsely that the restaurant was part of a larger chain where workers were transferred among different facilities. “The franchise system and the fact that the franchisee controlled multiple locations opened the door to undue delays in that it allowed an artificial challenge to the definition of the bargaining unit,” the complaint argued.

The case also raised questions regarding “the absence of recourses under Quebec law for anti-union motivated plant closures, as well as unwarranted delays in the certification

126 Worker Rights and Regional Trade Pacts process.” McDonald’s had routinely appealed decisions in the union’s favor, then finally closed the restaurant when union certification was about to be issued.

Although Quebec labor law is generally favorable to workers and unions, it does not empower authorities to deal with anti-union workplace closures. The Quebec courts have evolved a doctrine allowing employers to close facilities in order to avoid unionization with impunity—making Quebec the only jurisdiction in North America that does so.

In December 1998, the U.S. NAO announced that it accepted the McDonald’s case for review. When the NAO accepted the complaint and scheduled public hearings, Quebec’s trade unions, employer federations and labor department officials decided that the matter should remain in Canada, on the basis of the sentiment that Canada— and especially Quebec—represented a more advanced industrial democracy than the United States and that it would be inappropriate to subject Quebec to critical review by a country where worker rights are less respected. Accordingly, in April 1999, the petitioners withdrew their complaint following an agreement by the Quebec government to conduct a special study regarding anti-union plant workplace closures in the context of an overall review of the Quebec Labor Code.

Canadian Rural Letter Carriers (U.S. NAO Case No. 9804)

In December 1988, a coalition of postal unions and other labor organizations, along with several NGOs, filed a complaint with the NAOs of both the United States and Mexico on new legislation in Canada. This legislation defined rural letter carriers as independent contractors rather than as employees of the postal service. This classification effectively stripped rural letter carriers of protection for the right to organize and bargain collectively.

Noting that Canadian courts had previously considered and rejected the postal workers’ claim under the Canadian Charter of Rights and Freedoms, the U.S. NAO declined to accept the letter carriers’ case for review in February 1999. The complainants argued that the U.S. NAO had acted ex parte, neither informing petitioners about briefs received from the Canadian government nor providing them with the opportunity to respond to the information contained therein.

The petitioners asked the NAO to reconsider its decision, but it later dropped this appeal and shifted to a request for a cooperative activities program dealing with the overall issue of independent contractors and the protection of the right to organize in the three NAALC countries, according to ILO Conventions and under NAALC obligations. An international conference on this subject was held in February 2001 in Toronto. The conference agenda included other categories of workers excluded from coverage under certain labor laws, such as agricultural workers, household domestic employees and supervisors. The Canadian government’s position received considerable criticism, but the government did not change its views.

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Mercosur and the Social-Labor Declaration

Argentina, Brazil, Paraguay and Uruguay are members of the Common Market of the South (Mercosur). Chile and Bolivia are associate members. Mercosur has moved rapidly in recent years, even in recent months, to develop a social dimension for its economic integration arrangements. Since the initiation of the regional trade group with the Treaty of Asunción on March 26, 1991, the three main institutional markers of Mercosur’s social dimension have been:

Sub-Group 11 (SG11) from 1991 through 1994;

Working Group 10 (WG10) and the Economic and Social Consultative Forum (ESCF) from 1994 to the present; and

Since late 1998, the Social-Labor Declaration of Mercosur and the related Social Labor Commission.

Sub-Group 11

When Mercosur took shape in 1991, a reference to “social justice” in the preamble of the Treaty of Asunción was the only nod to a social dimension in regional trade plans. Very soon, however, labor ministers of the member countries responded to demands from labor and civil society by adopting the Montevideo Declaration on May 9, 1991. The declaration called on the trade group to address labor and social issues. In response, the Mercosur governments acted in December 1991 to create Sub-Group 11 (SG11) on labor, employment and social security, alongside other subgroups dealing with trade issues. SG11 set up eight committees dealing with individual and collective labor relations, employment, migrant workers, training, health and safety, sectoral issues in transportation and agriculture and ILO Conventions.

SG11 held its first meeting in March 1992 and its last meeting in November 1994. The group and its committees were tripartite in structure, but only government representatives could approve their non-binding recommendations to the Mercosur governments. SG11 carried out an examination of ILO ratifications by member countries and comparative studies on labor costs and labor legislation.

Also significant is what SG11 did not do: it never adopted the Charter of Fundamental Labor and Social Rights called for by the Coordination of Trade Union Centrals of the Southern Cone (CTUCSC). This trade union coordinating body formed in 1986 when it became clear that expanded regional trade was inevitable. Grouping the major labor federations of the four member countries, the CTUCSC drafted a comprehensive social charter with 79 articles covering a broad range of political, civil, economic and social rights. The proposed charter also contained a “linkage” between worker rights and trade, calling for the imposition of economic sanctions against countries, sectors or companies that violated worker rights.

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At a presidential summit meeting in August 1994, Mercosur governments rejected the idea of a trade-linked social charter. Brazil was willing to adopt a broad charter with no economic sanctions. Argentina said a social charter should be taken up at the end of the process of economic integration, not at the beginning. Buenos Aires was willing to adopt a NAALC-style accord, committing the countries to effective enforcement of national legislation on core labor standards and a complaint system with limited sanctions. In the end, the governments could not reach a consensus. But the exercise was seen by social charter proponents as worthwhile because it laid the groundwork for later consideration of the 1998 Social-Labor Declaration of Mercosur. Worker rights advocates hope that the declaration serves as a bridge to the adoption of an effective social charter in the future.

Protocol of Ouro Preto

SG11 ceased functioning at the end of 1994 in anticipation of the new Protocol of Ouro Preto (Dec. 17, 1994), which finalized Mercosur’s institutional structure. The protocol established the Common Market Council (CMC) as the highest ruling body. Composed of Foreign Affairs and Economics ministers, the CMC meets twice yearly to make overarching decisions for the regional trade group. The Common Market Group (CMG) became the executive operational body of Mercosur. It meets several times yearly to adopt resolutions forwarded by subgroups and committees. Representatives of finance ministries joined those from foreign affairs and economics on the CMG. The protocol also established a trade commission and a joint parliamentary commission.

In the new Ouro Preto protocol, the Mercosur countries took two new measures concerning a social dimension to their trade arrangements. First, the protocol established a new Working Group 10 (WG10), which took over labor issues. It reduced the eight committees of SG11 to three: one on employment relations; one on employment, migration and training; and one on health and safety, labor inspection and social security. Second, alongside WG10, but distinctive in both structure and mission, the protocol established a new ESCF.

Working Group 10

WG10 is composed of labor ministry officials from each Mercosur member government, but its three committees retain the tripartite government-labor-business structure of their predecessors, including one representative from each sector from each member country. Labor and business representatives have the right to vote in committee on conclusions and recommendations to send to the full Working Group. They may also participate in WG10 meetings and express their views, but labor and business representatives may not vote on decisions to forward matters to the CMG.

A parallel structure is established within each country. Country committees have often invited such NGOs as consumer groups, international organizations like the ILO and labor

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centrals that might not have a seat on the committee to participate in committee meetings. In addition, both national committees and WG10 have contracted with experts for special working groups or technical committees on particular subject matters.

When it began to function in 1995, WG10 picked up where its predecessor SG11 had ended. WG10 continued to analyze the ratification and implementation of ILO Conventions in Mercosur countries, noting that Paraguay lagged far behind its partners with 35 ratifications, compared with 102 for Uruguay, 85 for Brazil and 69 for Argentina. It resumed comparative labor law studies on such issues as termination of employment contracts, temporary employment, hours of work and probation periods, identifying asymme- tries that saw Uruguay emerge as the exception with a relatively sparse labor law regime compared with the highly detailed labor codes of its Mercosur partners. An attempt to compare labor costs while factoring in labor law and social security indices on a country- by-country basis foundered on methodological difficulties. The CMG instructed WG10 to undertake industry-by-industry salary studies instead.

Under WG10 auspices, in 1997 and 1998, unprecedented multilateral labor inspections were carried out in all four countries. Tripartite representatives joined labor inspectors from each country, reviewing payroll records and examining health and safety conditions at construction sites in each country. This was followed by a review and discussion of the experience. Though limited in scope, such activity could be viewed as a prototype for the eventual development of enforcement mechanisms for common labor standards.

WG10 also resumed discussion of a social charter, pressed anew by the CTUCSC with demands for linkage to trade disciplines. Although the social charter did not advance insti- tutionally, worker rights advocates saw keeping the debate alive as contributing to one of WG10’s signal achievements, the later adoption of the Social-Labor Declaration of Mercosur.

Between 1995 and 1998, WG10 made concrete advances in three major projects. First, it achieved a Multilateral Agreement on Social Security to regulate eligibility and benefits for workers employed outside their own country. The social security agreement did not harmonize benefits at higher common denominators, a goal sought by the trade unions but opposed by employers and some governments. However, it did establish guarantees that workers would receive proper credits for employment in another country, on which their benefits would be based. It also established guarantees that workers would receive the health insurance, pensions and other benefits due them—normally, the benefits provided in the country of employment for the period of employment in that country. In addition, the agreement called for the creation of a 12-member tripartite commission to oversee its implementation.

The social security agreement was adopted in December 1997 by the Council, the highest Mercosur body. It still awaits ratification by the parliaments of the member countries, a

130 Worker Rights and Regional Trade Pacts necessary step for implementation. Nevertheless, as one expert noted, “the fact that it is the first social-labor disposition resulting from Mercosur institutions, with the added value of its tripartite preparation, discussion and analysis, gives the agreement symbolic value for the social actors who, in seven years of prior activity, had not succeeded in crystallizing any proposal with substantive content.”23

A second achievement of WG10 was the creation of a permanent Labor Market Observatory. The observatory is a technical organ designed to provide “real time” comparative information on labor market indicators to Mercosur governments to help them coordinate employment policies. Like other Mercosur social initiatives, the observatory has a tripartite institutional structure. A 12-member management council named by WG10 oversees a small technical secretariat of four persons, one from each country selected by the country’s tripartite national section. As the technical secretariat has no specified funding source, it is staffed by labor ministry employees still located in each country’s labor ministry. The secretariat carries out a work plan adopted by the management council.

Although it does not have its own office or discretionary budget, the Labor Market Observatory has been able to develop an information bank on comparative labor market indicators. In 1999, it established a web site (http://www.observatorio.net). WG10 has charged the observatory with conducting new sectoral labor market studies in textile, agriculture, land transport and other industries.

Economic and Social Consultative Forum

The second initiative of the 1994 Ouro Preto Protocol created an ESCF as a setting for trade unions, employers and NGOs to voice their views and concerns about economic integration in the sub-region. Like other Mercosur institutions, the ESCF is tripartite in structure, but with a key distinction: the forum does not include government representatives. The three ESCF sectors are labor, business and NGOs.

Each of the four Mercosur countries has nine seats on the ESCF, making for a plenary body of 36 members. Each country may choose its nine members through its own internal processes, with the sole requirement that labor and business have an equal number of seats. Thus, for example, if labor and business have two seats apiece, five seats would be opened up to NGOs. In practice, countries have generally chosen to have equal representation from all three sectors, meaning three labor and three business representatives, with three NGO representatives joining them in the national delegation. NGO participants have come from consumer, environmental, educational, legal and other civil society groups.

The ESCF began functioning in 1996, after its four national sections were formed. It is a strictly advisory body, able only to forward non-binding recommendations to the CMG. In

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its twice-yearly meetings between 1996 and 1998, the ESCF formulated a handful of recommendations for the CMG on the promotion of employment, consumer defense, relations with the FTAA and other issues. None were adopted. In general, the governments ignored the ESCF. They did not allocate either budgetary or other material or administrative aid, nor did they consult with the ESCF on labor matters. Without resources, the ESCF was unable to reach out to the general public, which remained unaware of its existence or its work.

Despite disappointment regarding its lack of concrete achievements, however, the ESCF was able to provide a forum for civil society sectors in each country to learn about one another’s concerns; to develop institutional rules, procedures and customs for tripartite work; and to seek common ground on social aspects of regional economic integration. These were important precursors to the new framework created by the Social-Labor Declaration of Mercosur.

Social-Labor Declaration of Mercosur

The Social-Labor Declaration of Dec. 10, 1998, and the move to create a Mercosur Social- Labor Commission are Mercosur’s newest and most significant developments. The declaration has an unusual degree of authority because it was issued directly by the heads of state of the four Mercosur member countries. The creation of a new, permanent Social- Labor Commission gives added impetus to Mercosur’s social dimension. The declaration is available in Spanish and Portugese at www.mercosur-comisec.gub.uy/DOCUMENT/ DECLARAC/ResDecSLaboral.htm.

In its preamble the declaration invokes ILO Conventions, the 1998 ILO Declaration on Fundamental Principles and Rights at Work, the Universal Declaration of Human Rights, the 1995 Copenhagen summit and other multilateral and regional human rights instruments. The content of the declaration covers the usual core labor standards—freedom of association, child labor, forced labor and nondiscrimination. But it ranges beyond this group to address migrant worker rights, social dialogue, employment and unemployment, training, health and safety, labor inspection and social security.

The declaration also contains a management’s rights clause. The clause declares in Article 7 that the “employer has the right to organize and direct the enterprise economically and technically, in conformity with national law and practice.” According to trade union and government representatives and WG10 advisors, the employer representatives’ initial proposal called for a long recitation of employers’ rights, including the right to hire and fire with more flexibility, the right to change employees’ work schedules, the right to make and move investments at will, the sanctity of private property, the perma- nence of a free enterprise system, the separation of powers and more. Article 7 is what the employers were able to secure. The declaration does not establish harmonized norms and has no linkage that would impose economic sanctions for violations of worker rights,

132 Worker Rights and Regional Trade Pacts which are key trade union goals for the creation of an effective social charter. Instead, in Article 20, the member countries “commit themselves to respect the fundamental rights inscribed in the declaration and to promote its application in conformity with national law and practice and with collective contracts and agreements.” In Article 25, the declaration says, “The States Party emphasize that their declaration and its follow-up mechanisms cannot be invoked or used for other ends not contained herein; prohibited, in particular, its application to trade, economic and financial matters.”

Social-Labor Commission

The declaration’s application and follow-up clause creates a tripartite Mercosur Social-Labor Commission that reports to the CMG. Composed of 12 government, labor and business members (one per sector, per country), the commission is empowered to act by consensus to:

review annual reports from governments;

develop recommendations;

examine “difficulties and mistakes in the application and fulfillment” of the declaration;

write its own analyses and reports on application and fulfillment; and

shape proposals for modifying the text of the declaration.

Each government must submit an annual report to the commission on changes in national law and practice on matters addressed in the declaration, on progress in promoting the declaration and on the difficulties in applying it. On the basis of its examination of these reports, the commission prepares a comprehensive report to the CMG.

Impact of Mercosur

The debate over Mercosur’s social dimension mirrors that in other multilateral and regional settings. Governments are reluctant to cede sovereign power over labor matters to a new, untested supranational authority or to create international norms that trump national law. Employers complain that the Social-Labor Declaration is too favorable to the trade union agenda and fails to promote increased flexibility in labor law and practice in the region. However, they count as a victory the fact that the declaration does not link trade disciplines with the potential for economic sanctions.

Unions see the declaration as lacking “teeth” precisely because it does not establish harmonized standards or trade sanctions against labor rights violators. Furthermore, it fails to halt what they see as harmful trends toward increasing “flexibility,” whether such changes stem from de facto moves by management or from labor law reforms often demanded by the IMF or other international financial institutions. In the trade unions’ view, this trend

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is undermining worker rights won through decades of struggle, including struggle against military dictatorships in all four Mercosur countries.

At the same time, trade union leaders have welcomed the progress contained in the declaration, seeing it as forward movement in a long march toward an effective social dimension in trade. They also value the significant role afforded to labor in the tripartite structure of the commission and the possibility of later revisions to the text of the declaration in a review process required after two years of operation.

Equally important for both employers and trade unions, their involvement in a new Mercosur social dynamic has compelled a broadening and deepening of social dialogue. This result has been achieved at both the Mercosur level and the national level, since each tripartite Mercosur body has four national tripartite organisms underneath it. Tripartite meetings have also been held at Mercosur and national levels for different economic sectors, notably textiles and apparel, transportation, printing, agro-industry and telecommunications.

One result of this new dynamic is something that employers and trade unions in North America have not yet been able to accomplish—the negotiation of a single collective agreement across national borders between trade unions and a major multinational corporation. In April 1999, Volkswagen of Brazil and Volkswagen of Argentina negotiated a collective agreement with metalworkers’ unions from the two countries. The agreement recognizes the new context of Mercosur’s trading arrangements. It calls for the exchange of information, measures to improve competitiveness, rapid and amicable dispute resolution, enhanced worker training, recognition of factory committees and a commitment “to continually improve this contract, in a dynamic and consensual manner, including important matters for the permanent social dialogue of Mercosur.”24

When Mercosur was launched in 1991 with the Treaty of Asunción, a passing mention of “social justice” in the preamble was the only reference to a social dimension. But Mercosur countries quickly realized the need to respond to the demands of workers, trade unions and allied civil society forces for instruments and mechanisms to ensure that expanding regional trade did not create new incentives for social dumping and worker exploitation in order to obtain competitive advantage. Consequently, governments and social actors have forged new institutions and new relationships. The Social- Labor Declaration of Mercosur and its Social-Labor Commission are the latest results of the new dynamic, but surely not the last. The tripartite actors will continue to build Mercosur’s social dimension.

The need for an effective social dimension in Mercosur became starkly evident in late 2001 and early 2002, with the virtual collapse of the economy of Argentina, which brought wrenching changes in government’s severe social instability. Argentina had been a “model” of neo-liberal economic reform, with an extensive program of privati-

134 Worker Rights and Regional Trade Pacts zation and cuts in social programs. The turmoil generated by the economic crisis made obvious the fact that free trade oriented economic reforms without adequate social protection are a recipe for disaster.

Community of Andean Nations (CAN)

The Community of Andean Nations (CAN), or Andean Community, is a sub-regional organization that includes the South American countries of Bolivia, Colombia, Ecuador, Peru and Venezuela. The Andean Integration System (AIS), a group of bodies and institutions that work toward the advancement of Andean integration, is also part of CAN.

The Cartagena Agreement, signed by member countries in 1969 and subsequently amended through various protocols, established the legal and institutional framework for the Andean integration process. The General Secretariat is CAN’s executive body. It took on the functions of the Board of the Cartagena Agreement on August 1, 1997. The Secretariat propos- es draft decisions to the Andean Council of Foreign Ministers and to the Commission and passes on initiatives and suggestions to the Council in order to facilitate compliance with the Cartagena Agreement. The Secretariat is also responsible for determining, during the pre- litigation stage, whether states are non-compliant with CAN provisions. In addition, it monitors the Court of Justice, CAN’s judicial system, for consistency.

A subsequent treaty enacted in 1979 established the authority of Community provisions over CAN member countries. Accordingly, decisions made by the Council of Foreign Ministers and the CAN Commission, along with General Secretariat resolutions, do not require ratification by national parliaments. Rather, they enter into force on the date they are published in the Cartagena Agreement’s Official Gazette, and are binding on government branches, bodies and offices, as well on Andean citizens.

The 1979 treaty also obliges member countries to take the steps necessary to ensure compliance with CAN agreements. It prohibits them from adopting measures that deviate from those provisions in any way that would hinder their application.

The Court of Justice was created by CAN under the 1979 treaty. Its headquarters are in Quito, Ecuador. The court consists of five judges, one from each member country. Judges are appointed to six-year terms and may be re-elected for one additional term. The court is tasked with interpreting the body of Andean legal instruments, including the Cartagena Agreement, its protocols and additional instruments; the treaty that created the Court; decisions made by CAN’s Commission; and the board’s resolutions (which have now been replaced by the General Secretariat). The court has jurisdiction over three kinds of actions: the nullification of decisions or resolutions that violate provisions governing the judicial system, the non-compliance of member countries with their obligations and pretrial interpretation.

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Before a complaint is filed with the court, the General Secretariat must institute administrative proceedings in the pre-litigation phase. An investigation into the non-compliance of a member country may be initiated by the secretariat itself or at the request of a member country or a citizen. The secretariat sends its written observations to the country that allegedly failed to comply with CAN provisions and sets a deadline for its response. Upon receipt of the answer or the expiration of the deadline, the secretariat issues a “justified opinion.” At that point, regardless of the nature of the opinion or whether it was issued, a complainant can turn to the court.

Under the pretrial procedure, national judges trying a case in which the Andean provisions are applicable are obliged to request the interpretation of the Andean Court of Justice regarding the content and scope of that provision. They are expected to settle the dispute in keeping with the CAN court’s interpretation.

On May 28, 1996, member countries signed the Cochabamba Protocol. This broadened the court’s scope and amended the non-compliance procedures to allow “natural and juridical persons” to appeal directly to the court if a member country failed to comply with Andean provisions. The protocol thus established a new legal recourse for the failure to act by community bodies or for cases of omission. It also gave the court the authority to settle through arbitration any disputes arising over the application or interpretation of contracts, accords or agreements signed between AIS bodies and institutions or between the AIS and third parties. In addition, it allowed the court and the General Secretariat to use arbitration to settle disputes submitted by citizens regarding private contracts. Further, it gave the court jurisdiction to try labor disputes arising in AIS bodies and institutions.

In May 1999, at the 11th Andean Presidential Summit, the adoption of the Declaration of Cartagena de Indias and Action Plan by the Andean ministers of labor brought worker rights into the heart of the social welfare agenda for the Andean integration process. The purpose of the declaration and action plan was to guarantee respect for worker rights, to strengthen social and labor integration, to boost the conversion of the production system and to promote the creation of jobs. The action plan created three working groups on basic rights, the free circulation of workers, productive employment and professional education and training; social security and occupational safety and health; and the updating of the Simon Rodriguez Agreement.

The first working group’s primary tasks are to:

promote the ratification and observance of ILO core labor standards;

advance the adoption of community provisions on occupational safety and- health;

conduct programs to prevent accidents and common occupational diseases;

execute initiatives to eliminate child labor;

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work toward improving the institutional structures of the Labor Ministries to ensure that they protect worker rights;

design programs to promote freedom of association and collective bargaining; and

harmonize laws on labor intermediation so that their application will guarantee the observance of worker rights.

The first working group will also propose measures to guarantee respect for migrant workers’ rights and their free circulation. In addition, it will look at ways to fight unemployment and temporary employment and strengthen professional education and training systems in order to upgrade and modernize workers’ job skills for the current market. Further, it will propose mechanisms for coordinating professional education and training systems and public employment services at the sub-regional level. Finally, the working group will develop youth training programs for jobs and employment in the production sector.

The second working group will focus on seeing that basic social security benefits, including old age, disability and survival benefits, are extended to workers of member countries and on revising community decisions and regulations to ensure adequate social protection for pensions, health and occupational risks. The group is also tasked with working toward the adoption of community workplace safety and health provisions and product safety provisions. In addition, the group will design and implement programs aimed at the prevention of work accidents and occupational diseases that are common to member countries. Further, it will design programs to strengthen the monitoring and enforcement of occupational safety and health risks.

The 1999 declaration also called for the creation of the Advisory Committee of Andean Community Labor Ministers. CAN Secretary General Sebastian Alegrett noted that an increase in trade was necessary, but not enough. He indicated that the treatment of social and labor issues in the community was in harmony with the need to promote “a true community of nations,” rather than limiting integration to the creation of a “mere business club.” 25

A final declaration issued by the labor ministers during the same meeting cited the need to use the ILO Declaration on Fundamental Principles and Rights at Work to promote the strengthening and consolidation of democracy in the region and to move ahead with the harmonization of labor legislation. It also reaffirmed support for the eradication of child labor, the broadening of the social security system, the promotion of a culture of prevention with regard to work accidents and occupational diseases, the creation of a new culture of labor relations marked by social dialogue and the inclusion of the principles of equal opportunity and treatment for men and women.

In June 2000, the 12th Andean Presidential Council set up the Advisory Council of Labor Ministers, as the labor ministers had recommended the previous year. This committee coordinates measures on job promotion, labor studies and training, social security, occu-

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pational safety and health and labor migration. With the assistance of the ILO, the committee is studying national legislation on occupational safety and health with a view toward adopting community-level provisions. In the future, the committee will consider the implementation of sub-regional programs related to the prevention of work accidents and occupational diseases and the improvement of monitoring and enforcement. These would include measures focused on improving labor inspection systems and the registration and reporting systems for job accidents and occupational diseases. In addition, sub-regional programs would sponsor a number of educational programs on these issues.

In July 2000, the Andean Business and Labor Advisory Councils issued a joint declaration to promote the active involvement of both sectors in building a common market while yielding the greatest possible social and economic benefits. The declaration made various recommendations dealing with investment, taxation, tariff and market reform. In addition to these, it called for greater freedom of movement among citizens of member countries, and stated that priority should be given to the continuing education and training of workers and respect for ILO core labor standards. It also expressed support for the addition of social welfare to the objectives of economic growth.

The Canada-Chile Free Trade Agreement on Labor Cooperation (CCALC)

When NAFTA was approved and implemented in 1994, expectations were high that Chile would soon become a fourth party to the agreement. Negotiations toward that end were derailed, however, with the peso crash at the end of 1994 and the resulting economic crisis in Mexico. Growing anti-NAFTA sentiment in the United States led to President Clinton’s failure to obtain renewed fast track negotiating authority from Congress after it expired in 1994. Chile did not want to have the terms of its accession to NAFTA picked apart by the U.S. Congress, so negotiations on NAFTA accession stopped.

Chile then began to pursue an alternative route, undertaking a series of bilateral trade negotiations with Canada, Mexico and Mercosur. As a result, Canada and Chile signed a trade agreement in 1996 and followed in early 1997 with the Canada-Chile Agreement on Labor Cooperation (CCALC). In most substantive respects, the CCALC is identical to the NAALC. It sets forth the same 11 labor principles and related obligations for effective enforcement of national law and creates a Commission for Labor Cooperation to oversee the accord.

Like the NAALC, the CCALC emphasizes cooperative consultations and cooperative work programs. It also provides a similar mechanism for receiving complaints, including “public communications,” for independent evaluations by independent committees of experts and for dispute resolution by ad hoc arbitral panels. As with the NAALC, the 11 labor principles of the CCALC are divided into three tiers limiting dispute resolution to child labor, minimum wage and health and safety labor law enforcement.

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In a targeted but significant deviation from the NAALC, sanctions under the CCALC’s dispute resolution mechanism stop with fines against an offending government. It does not take the further step provided in the NAALC of potential trade sanctions through loss of beneficial tariff treatment against a company or industry that violates worker rights.

As a bilateral pact, several of the tri-national features of the NAALC are transformed in the CCALC. Obviously the Ministerial Council consists of two, not three, labor ministers. No permanent, tri-national secretariat has been created to serve the council. Instead, the functions of the NAALC Secretariat and the three NAOs are combined in a CCALC national secretariat in each country. Canada’s same National Administrative Office—now renamed the Office of Inter-American Labour Cooperation—performs this function for Ottawa. The national secretariats are responsible for developing cooperative activities, preparing reports and studies, supporting any committee or working group set up by the council and receiving and reviewing public communications on labor law matters arising in the other country.

From the start, the Canadian and Chilean governments announced that they would not substantively deviate from the NAALC in their negotiations on a labor agreement. Since it was still hoped that Chile would eventually accede to NAFTA, the bilateral negotiators did not want changes in their agreement that might require a full-scale renegotiation on terms of accession. Canadian and Chilean trade unions and NGOs roundly criticized this stance. They argued that new labor negotiations should be seen as an opportunity to improve the “toothless” NAALC.26

Worker rights advocates also protested the implication in the agreement that Chilean labor law and practice conforms to the 11 labor principles. While the harshly repressive Pinochet labor code was eased by a series of reforms after Chile returned to democratic rule, several provisions that arguably violate the accord’s labor principles remain in place:

permitting wide latitude for employers to dismiss workers, including union organizers and supporters, based on the “needs of the business” as defined by the employer;

denying organizing and collective bargaining rights to public employees and to seasonal and temporary workers;

frustrating collective bargaining negotiations above the level of the single workplace;

denying union access to corporate financial information for use in collective bargaining;

severely limiting the topics susceptible to collective bargaining; and

limiting the right to strike and permitting permanent replacements.

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Further reforms to address some of these deficiencies have been introduced by the Chilean government but have been blocked by the unelected, appointed bloc of sena- tors in Chile’s upper house. This failure is seen by critics as evidence of a continuing democratic deficit in Chile, calling into question the country’s readiness to sign a labor accord with Canada that would espouse the labor principles.27

Notwithstanding these problems, Canada and Chile signed their labor cooperation agreement on Feb. 6, 1997, and the agreement went into effect on July 9, 1997. Since then the two national secretariats have undertaken an ambitious cooperative work program with several workshops, seminars and conferences similar to those sponsored under the NAALC. The CCALC Ministerial Council met in Santiago on Oct. 22, 1998, to review the accomplishments of the agreement’s first year of operation and to approve the first annual report.28

The cooperative work program began with a January 1998 seminar in Santiago on individual employment standards and occupational safety and health legislation. It covered labor standards and enforcement systems, compensation for workplace injuries and illnesses and health and safety in the mining industry. Later events, including some government-to-government meetings and some meetings that included employer and trade union representatives, took place in Ottawa, Toronto and Montreal and also in Santiago. The subjects discussed included industrial relations legislation and the role of labor boards and labor courts in regulating labor-management relations and resolving disputes; new forms of work and the implications for industrial relations; income security; and workplace safety and health. Canadian trade unionists at the April 1998 conference in Ottawa raised sharp, probing questions for Chilean government representatives on what they saw as critical deficiencies in Chilean labor law. Chilean spokesmen fended off criticisms with claims that the basic labor law structure reflected the labor principles and that the government was working to correct remaining problems.

In addition, a public conference on Working Women in the 21st Century was held in Santiago, Sept. 1-3, 1999. The agenda included women’s participation rates and employment patterns, work and family issues, legislation affecting women workers and emerging trends and innovations.

Canadian employer and trade union representatives have participated in tripartite public events in both countries, as have Chilean employer representatives. However, Chilean trade unionists have joined only events that took place in Santiago.

Contrary to the NAALC experience, no complaints have yet been filed under the CCALC. Chilean unions have also not accepted offers from their Canadian counterparts to file complaints under the CCALC in order to bring problems of Chilean labor law and practice under the international scrutiny afforded by the agreement.

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The Canada-Costa Rica Free Trade Agreement on Labor Cooperation (CCRALC)

In 2001, Canada and Costa Rica signed the Canada-Costa Rica Free Trade Agreement on Labor Cooperation (CCRALC) as part of a free trade pact between the two countries. The CCRALC continues a process of scaling down the enforcement mechanisms found in the NAALC. The CCALC eliminated trade sanctions but kept fines as a remedy for violations of the agreement. The CCRALC eliminates fines as well. It allows only “reasonable and appropriate measures, exclusive of fines or any measure affecting trade” [Article 23, ¶5]. A halt to participation in cooperative activities is contemplated as the enforcement tool under the CCRALC.

The CCRALC also eliminates the ECE found in the NAALC and the CCALC, as well as the dispute resolution process. Instead, it establishes a “review panel” directly following ministerial consultations, with the panel empowered to make recommendations.

An innovation in the CCRALC is its direct incorporation of the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work in place of the NAALC’s labor principles. The CCRALC also added a new annex titled “additional labour principles and rights” to include items from the NAALC’s labor principles that are not part of the ILO Declaration, namely, minimum employment standards, occupational health and safety and workers’ compensation. However, the CCRALC failed to include the NAALC’s Labor Principle 11 on migrant workers’ rights.

The Caribbean Community (CARICOM) and the Charter of Civil Society

The Caribbean Community (CARICOM) is an association of Caribbean nations created in 1973 to develop a common market and coordinated policies among the member states. CARICOM members are Antigua and Barbuda, Belize, the Bahamas, Barbados, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Suriname, and Trinidad and Tobago. Associate members are Anguilla, British Virgin Islands and Turks and Caicos Islands. Faced with the rise of regional trade agreements around them, in particular the new comparative advantages afforded Mexico under NAFTA, CARICOM countries have accelerated efforts to overcome the strong distinctions and rivalries that still characterize their relationships in order to build an effective trade group.29

CARICOM’s social dimension is grounded in the Charter of Civil Society of the Caribbean Community, signed in 1994 and adopted by the countries in 1997. The CARICOM Charter is a comprehensive human rights instrument composed of 27 articles. Most notably, in comparison with similar international efforts, the CARICOM Charter subjects private actors, namely, the “social partners”(defined in Article I as “the government of a State, Associations of Employers, Workers’ Organizations and such Non-Governmental Organizations as the State may recognize”), as well as states, to its oversight mechanism.

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The first grouping of articles covers basic civil and political rights, including human dignity and the right to life, liberty and security of the person; equality before the law; political freedom; and freedom of association, expression and religion. Article X on cultural diversity shifts the instrument’s focus to economic and social rights, which are reflected in clauses on indigenous peoples, women, children and the disabled; access to education and training; health; participation in the economy; environmental rights; and good governance.

Two of the charter’s articles relate to a social dimension. Article XIX on worker rights is the longest single article in the charter. It guarantees to “every worker” the right to form or belong to a trade union, to bargain collectively, to a safe workplace, to reasonable hours and pay, to withhold his or her labor and not to be subjected to unfair labor practices. An exception for public employees is rationalized as a measure “reasonably justifiable in a free and democratic society.” 30

Article XIX goes on to state the obligations of governments to31:

safeguard the right of workers to freely choose occupations;

recognize the desirability of decent pay;

provide a system for the recognition and certification of trade unions freely chosen by a majority of workers;

sensitize workers, unions and employers to their respective and mutual obligations;

provide protection against arbitrary dismissal;

provide a system for industrial dispute resolution;

provide maternity leave and return-to-work rights after pregnancy;

establish standards to ensure a safe and healthy workplace;

provide adequate social security; and

ensure social and medical assistance to retired persons.

Article XXII on social partners states briefly the work of the governments to establish a framework for genuine consultation among the social partners on the objectives, contents and implementation of national economic and social programs and their respective roles and responsibilities in good governance.32

The follow-up mechanism in Article XXV calls for periodic reports to the CARICOM Secretary-General on the measures adopted and progress achieved in compliance with the charter. Reports are expected to note any factors and difficulties that affect implementation.33 Governments are expected to consult with social partners in preparing the reports and to establish in each country a National Committee to oversee charter implementation.

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The National Committee is made up of representatives of government and the social partners, along with “other persons of high moral character and recognized competence in their respective fields of endeavor.” 34 The first reports were submitted in 2000.

The charter contains a complaint mechanism by which citizens may file reports with their National Committee alleging breaches of or non-compliance with the charter. Significantly, complaints may cite violations “attributed to the state or to one or more social partners.”

Upon receiving a complaint, the National Committee must notify the state or social partner named therein and request comments on the allegation. The complaint, comments and the committee’s opinions are then reported to the Secretary-General for forwarding to the Conference of Heads of Governments of the Caribbean Community. The deliberations of the conference and any recommendations are sent back to the government and the National Committee of the country involved.35

No further action is contemplated under the CARICOM Charter in cases alleging violations of charter provisions, including worker rights. The charter establishes an oversight system relying on peer pressure and moral force to change behavior or correct injustices. It is not linked to CARICOM trading arrangements, and its member governments do not have future plans to impose economic sanctions against human rights and worker rights violators. No complaints or reports have yet been filed under its oversight mechanism.36

The CARICOM Declaration of Labor and Industrial Relations Principles

In April 1993, the Standing Committee of Ministers of Labor of CARICOM commissioned the drafting of a Declaration of Labour and Industrial Relations Principles37 for the community. A two-year process of consultation with trade unions, employer groups and labor law scholars led to the adoption of the declaration in April 1995 by CARICOM’s ministers.

In the Foreword, the declaration is characterized by the Standing Committee of Ministers responsible for labor as “an important policy guide on labour matters for the social partners (that) provides the bases for the development of national labour policies, and informs the enactment of labour legislation.” It is described by the secretariat as “an expansion” of the worker rights cited in Article XIX of the CARICOM Charter of Civil Society. A secretariat statement accompanying the declaration points to “the tradition of adversarial industrial relations” in the region and an “urgent need for better cooperation amongst the social partners to combat the burning issues brought by globalisation, trade liberalisation and structural adjustment programmes.”

The declaration begins by invoking the charter, the ILO’s Declaration of Philadelphia, the Universal Declaration of Human Rights and ILO Conventions and recommendations. The declaration’s 45 articles cover freedom of association, collective bargaining,

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nondiscrimination in employment, forced labor, health and safety, job training and career promotion, employment policy, labor administration, dispute settlement, consultation and tripartism and many other aspects of labor and employment relations.

As indicated earlier, the declaration is solely a policy guide that has no binding force. It is not linked to trade disciplines that would permit the application of economic sanctions against violators. It contains no oversight or follow-up mechanism, although its terms could certainly be used in complaints arising under the charter.

NAFTA Parity

In 1996, at the impetus of President Clinton, policymakers discussed the possibility of allowing certain exports from the Caribbean and Central America to enter the United States at tariff rates similar to those granted to Canada and Mexico under NAFTA. Caribbean and Central American countries had been clamoring for parity because of the adverse impact of the NAFTA agreement on their trade situation. Jamaica and the Dominican Republic, for example, were dependent upon apparel exports and, under NAFTA, Mexico had become the single largest source of garment imports for the United States. Some apparel firms in the Caribbean had actually packed up and moved to Mexico.

In 2000, to resolve this problem, Congress passed and President Clinton signed into law a NAFTA parity plan for Caribbean countries and a companion Africa trade bill also granting lower NAFTA-level tariffs for imports from those countries. However, the NAFTA parity legislation did not contain clauses establishing a labor rights mechanism like the NAALC.

Comparison of Worker Rights Measures in the Americas

The four experiments linking worker rights and trade in the Americas are still new. States and social actors are still learning which features are successful and should be kept, which have failed and should be changed and which are still untried and bear testing. The most instructive distinctions have emerged in three key areas: tripartism, complaint and oversight mechanisms and “soft” moral sanctions versus “hard” economic sanctions.

Tripartism

The tri-national NAALC and the bi-national CCALC and CCRALC limit the institutional role of employers, trade unions, NGOs and other elements of civil society. These social actors engage the social dimension of trade mainly by filing complaints and press- ing governments for action. In contrast, the Mercosur and CARICOM arrangements give greater weight to tripartism in their institutional structures. Employers, trade unions and sometimes other social actors have formal roles in Mercosur’s working groups, forum and commission, both at the Mercosur level and in national bodies. The

144 Worker Rights and Regional Trade Pacts same civil society actors participate formally in the national committees that take up matters under the CARICOM Charter of Civil Society. To the extent that the Mercosur and CARICOM models create space for trade unions and other social actors “at the table” where substantive discussions take place, they have an advantage over the NAALC and NAALC-based models.

Complaints and Oversight

Alongside cooperation and consultation between governments, the NAALC model’s submission and oversight mechanisms contemplate specific complaints by social actors against governments and firms that allegedly violate worker rights. Complaints may be followed by public hearings, public reports, evaluations and recommendations by independent, non-governmental experts and dispute resolution by independent arbitrators. In contrast, Mercosur and CARICOM integrate the social actors into their institutional regimes. Complaints can be filed with tripartite national bodies under both systems, but governments retain control of outcomes with little apparent space for public hearings or other forms of public pressure by social actors. There is no place for independent, non-governmental decision making like the role of the ECE or arbitral panel under the NAALC. To the extent that trade unions must always maintain distance from employers and governments to avoid being co-opted and to be able to play the role of adversary when needed, the NAALC model provides more opportunity for directly criticizing and challenging government and employer violations of worker rights.

Sanctions

The issue of sanctions is another marker of key differences among the four systems studied here. A spectrum of sanctions can range from “soft” reproof such as self-reporting requirements or quiet diplomatic chiding among governments to “hard” reproof such as fines or trade sanctions. Intermediate measures involve escalating investigations, reviews and reports, independent evaluations and recommendations, calls for “action plans” and other steps to scrutinize and publicize behavior by states, industries and firms. While such measures are often dismissed by worker rights activists as ineffective, public exposure can sometimes have economic consequences that change abusive behavior.

CARICOM is silent on the subject of sanctions. Its oversight mechanism is limited. Once citizens have filed a complaint with a national committee, the sequence that follows is one of reports, comments and non-binding recommendations. Mercosur explicitly renounces economic sanctions in Article 25 of the Social-Labor Declaration. Instead, it sees worker rights matters best addressed by a robust tripartite dynamic and moral pressure by the CMG, the council and, if necessary, heads of state.

The CCRALC also eliminates the possibility of economic sanctions. The CCALC permits fines against a government for systematic failure to enforce laws on child labor, mini-

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mum wage or occupational safety and health, but it precludes suspension of the trade agreement’s tariff benefits. Only the NAALC takes this final step, allowing sanctions against companies or firms that violate worker rights. This measure has never been applied, however, and apparently would be used only under unusual circumstances.

Experience shows that an effective labor law enforcement system, domestic or international, requires a credible potential for going after the pocketbooks of labor law violators. Economic sanctions can be a first resort or a last resort. In a complex international setting, it may well be that they should be a last resort. However, sanctions must be available against abusers of worker rights who would otherwise scorn calls for justice in the global economy.

Free Trade Area of the Americas (FTAA)

At the 1994 Summit of the Americas, leaders from the 34 countries of the western hemisphere made a commitment to conclude negotiations for an FTAA by 2005. The purpose of the agreement will be to progressively eliminate barriers for trade and investment. Subsequent trade ministers’ meetings fleshed out proposals for the FTAA, while summit meetings of heads of state in Santiago, Chile, in 1998 and in Quebec City in 2001 sought to advance the FTAA agenda.

As negotiations for the FTAA progressed, labor unions, human rights and environmental groups and other non-governmental and civic organizations—all of which were excluded from negotiations—became increasingly alarmed. Trade negotiators favored a pact that would exacerbate the flaws of the NAFTA model. They sought to extend companies’ right to sue governments and to incorporate provisions that could constrain governments’ ability to regulate public health and environmental issues. Worse yet, the negotiators had res- olutely rejected all pleas to place worker or environmental rights on the agenda.

Although the AFL-CIO welcomed closer economic ties with the rest of the hemisphere, the federation noted that new trade and investment rules had to be based on respect for human rights and a shared plan for sustainable, democratic and equitable development.38 The AFL-CIO called on the FTAA negotiators to incorporate the following into any hemispheric agreement: 39

enforceable worker rights (ILO core labor standards) and environmental standards in the core agreement;

protection for the rights of migrant workers, regardless of their legal status;

measures to ensure that countries retain the ability to regulate the flow of specu- lative capital in order to protect their economies from excessive volatility;

debt relief measures to improve the ability of developing countries to fund education, health care and infrastructure needs;

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compliance with the World Health Organization’s “revised drug strategy,” which provides that public health be paramount in trade disputes;

equitable and transparent market access rules that allow for protection against import surges; and

a transparent, inclusive and democratic process for FTAA negotiation and eventual implementation.

The AFL-CIO also noted that any agreement covering investment, services, government procurement and intellectual property rights should not undermine governments’ ability to enact and enforce legitimate regulations in the public interest.

In 2001, in both Santiago and Quebec, parallel “peoples’ summits” attracted thousands of leaders and activists from trade unions (including the AFL-CIO) and NGOs throughout the hemisphere. These summit participants launched an ambitious program of their own to force social issues like worker, environmental and human rights concerns onto the governments’ free trade agenda.

The Inter-American Regional Workers Organization (ORIT), the ICFTU regional grouping of trade union central bodies, played a lead role both in planning alternate summits and in welcoming NGO participation. Peoples’ summit organizing committees included representatives from ORIT, the Canadian Labour Congress (CLC), the Quebec Workers’ Federation (FTQ), National Union Federation (CSN), the Brazilian and Chilean CUT central labor federations and NGO networks from around the hemisphere. They worked to shape proposals to advance a social agenda in alternative trade and investment policies.

The organizing committee crafted its summit in three phases. First, the ORIT would hold a “labor summit,” open to outside NGO observers, to develop labor’s basic position on hemispheric trade. Then, NGO forums on various social issues, with full trade union participation, would design an agenda going beyond labor issues. Finally, a labor-NGO plenary session would adopt a comprehensive final declaration and a plan of action.

ORIT unions adopted three major demands: recognition of a labor counterpart to the officially sanctioned “business forum” that meets with FTAA government trade negotiators; the addition of the ILO core labor standards to any FTAA; and the adoption of a broader social charter in the FTAA that would address the concerns of other types of NGOs. The document was then presented to Chilean President Eduardo Frei in Chile and to Canadian Prime Minister Jean Chrétien in Quebec.

The pressure of the people’s summits bore at least symbolic results. At the governments’ summit, a final document by the heads of state called for a “social action plan” to promote core ILO labor standards, improve education, reduce poverty and inequality, expand democracy and guarantee human rights. The governments also agreed to

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create a committee on civil society to officially hear the views of labor, environmental and other NGO groups as FTAA negotiations proceeded.

Unfortunately, the civil society consultation mechanism has failed to achieve positive concrete results. Although government officials received written communications and held occasional briefings for civil society groups, they made no apparent attempt to sin- cerely engage with or respond to their concerns. The consultation process was not even close to that of the already recognized Business Forum. The distinction was dramatically illustrated at the Quebec summit. Multinational corporations and banks bought freewheeling access to trade and investment negotiators with contributions of at least $500,000 to sponsor parties and receptions, while a new chain-link fence was erected around the entire city to prevent critics from being heard at the summit’s venue.

Although the FTAA negotiations process has been a disappointment thus far, the height- ened role of Latin American governments and trade blocs in shaping trade throughout the region also means that Latin American unions and NGOs have the opportunity to share a lead role in defining the social dimension of trade, putting new balance into a north-south dialogue. U.S. and Canadian trade critics will have to listen carefully to their counterparts in the hemisphere. In addition to raising northern concerns such as runaway shops and lax environmental standards, they will also have to address developing country concerns over debt relief, compensatory transfer funding from rich to poor countries, the right to development, technology transfer and job creation. Just as it bore serious consequences for Mercosur, the economic collapse in Argentina in late 2001 and early 2002 called into question the viability of an FTAA along the lines proposed by the United States and other governments in the hemisphere.

Asia

Asia-Pacific Economic Cooperation (APEC)

The Asia-Pacific Economic Cooperation (APEC) forum was established in 1989 to promote economic intergration and to sustain economic growth among the countries that line the rim of the Pacific Ocean. APEC reflects a market-driven globalization strategy that rests on growth in exports between the APEC countries. APEC encourages its members to pursue macroeconomic policies that stimulate domestic demand and microeconomic policies to promote financial corporate restructuring and attract investment. It seeks to eliminate barriers to trade and investment.

An annual APEC summit meeting is attended by the heads of state of APEC member countries. This serves as an occasion to negotiate many market-opening arrangements, either for the entire APEC group or among a subgroup of nations. APEC’s founders sought to avoid making the forum too institutional or bureaucratic, hence the name “cooperation” rather than “committee” or some other organizational term. Despite these intentions, after several

148 Worker Rights and Regional Trade Pacts years APEC established a permanent secretariat in Singapore and now has a panoply of committees and subcommittees. The 21 current members of APEC are:

Australia Indonesia Peru Brunei Darussalam Japan Philippines (Republic of the) Canada Korea (Republic of) Russia Chile Malaysia Singapore China (People’s Republic of) Mexico Thailand Chinese Taipei New Zealand United States Hong Kong Papua New Guinea Vietnam

APEC has a small secretariat of 20, located in Singapore. Ministerial meetings are held annually. Ten working groups cover the following issues:

trade and investment data;

trade promotion;

industrial science and technology;

human resources development;

regional energy cooperation;

marine resource conservation;

telecommunications;

transportation;

tourism; and

fisheries

At the 1994 leaders’ meeting, the Bogor Declaration was adopted. This declaration included an agreement to formulate plans aimed at the achievement of free trade and investment in the region by 2010 for industrialized economies and by 2020 for developing economies. The declaration emphasized that the process must be consistent with WTO norms, so that economic integration within the region would strengthen rather than weaken the global system. It also stated an organizational aim “to attain sustainable growth and equitable development of APEC economies,” while reducing economic disparities among them and improving “the economic and social well-being of our peoples” (although none of the working groups specifically address this issue).

APEC’s non-binding investment principles were also adopted in 1994. The principles do not include social or employment considerations, other than those related to health, safety and the environment; no principle exists to ensure that multinational corporations

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engage in responsible social behavior. APEC does have limited provisions for consultation with representatives of society, aimed mainly at the business and academic communities. In addition, APEC working groups may invite “guests” to specific sessions, but labor unions have rarely been included.

In 1994, the ICFTU Asian and Pacific Regional Organization (ICFTU/APRO) adopted a Social Charter for Democratic Development. This charter, addressed to governments and employers throughout the region, cited some of the worker rights principles that the unions believed should be part of a global market economy. The charter covered the following subjects:

employment;

wages and working conditions;

vocational training and retraining;

industrial relations;

safety and health;

environment;

women workers;

export processing zones;

migrant workers;

social security; and

trade union development.

The South Pacific and Oceanic Council of Trade Unions (SPOCTU) for the Pacific island states has produced another social charter. SPOCTU has observer status at the Committee for Regional Economic Issues and Trade (CREIT) of the South Pacific Forum. SPOCTU has also been working to include trade union input into the South Pacific Region Trade and Economic Cooperation Agreement (SPARTECA) and is studying how to link these agreements to APEC.

The ICFTU Asia Pacific Labour Network (APLN) was established in 1995 to support and promote the work of trade unions in the APEC region, focusing on the development of an effective dialogue with governments, business and other groups involved in the APEC process. The members of the APLN are union centers from only the member countries of APEC, unlike APRO, which includes unions from non-APEC countries in Asia. APLN is also based in Singapore. Crucial to its dialogue with APEC is APLN’s insistence that worker rights provisions be included in APEC trade and investment deals. Thanks to the network’s lobbying efforts, ICFTU affiliates were invited (usually as part of government dele- gations) to take part in APEC’s 1996 meetings on human resources development.

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The ICFTU is urging APEC to include either an ICFTU or an APLN representative in APEC’s future work on human resources development. Its goal is to obtain a formal role for trade unions in APEC, perhaps in the form of an APEC Labor Forum. In addition, TUAC is recommending that APEC discussions be extended to include a social charter for Asia.

While there has been a gradual movement toward the consideration of labor issues in APEC, it has mostly been limited to human resources, productivity, worker training and education issues, not worker rights. APEC’s major statement on labor matters, issued by its Network for Economic Development Management in 1997, noted that one of APEC’s goals is “to enhance the life and well-being of the people in the region.” The statement also declared that the development and protection of human resources contributes to “the alleviation of poverty, full employment, universal access to … education and the full participation of all groups in … economic growth and development.”40 Further, the coordinator’s report recommended that one of the organization’s medium-term strategies (No. 7), which addresses the enhancement of “quality, productivity, efficiency and equitable development of the labor forces and workplaces,” be revised. The proposed revision suggests that this goal be achieved through41:

promoting full participation in the labor force by women;

addressing training and other needs of displaced workers;

dealing with the erosion of economic opportunity for low-skilled workers;

improving safety and health in the workplace;

enhancing participation between labor and management in the development of human resources; and

developing understanding and skills in the management of rapid and constant change to facilitate a smooth transition to the 21st century.

In 2002, APEC’s work has focused on the following priorities:

implementing of policies on trade, investment and finance to promote economic growth and extract gains from the new economy;

capacity building to obtain benefits from development through the promotion of micro, small and medium-sized enterprises; and

strengthening APEC’s international relevance by encouraging greater participation of youth and women, intensifying efforts to promote the benefits of globalization and improving the function of APEC.

The Young Leaders Forum from APEC countries met September 9-13, 2002. The theme of their meeting was “Business Development with Social Responsibility.” The forum statement

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asked APEC leaders to hold an initial Youth Ministerial Meeting, while calling on them to assist young entrepreneurs through incentives, financial support and accessibility of education and consulting programs, including a variety of educational initiatives on the social responsibility of business.

APEC’s Second Ministerial Meeting on Women, held September 28-29, 2002, in Guadalajara, Mexico, was titled “Advancing Women’s Economic Interests and Oppor- tunities in the New Economy.” Sub-themes included women’s entrepreneurship, micro- enterprises and the impact of trade liberalization on women, as well as the continuation of gender integration within APEC. A variety of ministerial recommendations included encouraging members to take measures to mitigate the impact of trade liberalization on women, to provide adequate social safety nets that cover displaced or dislocated women workers, to reduce and eventually eliminate labor market inequalities and to develop and promote policies that balance work and family life, particularly related to caregiving and the disproportionate share of unpaid work performed by women.

U.S.-Cambodia Bilateral Textile Trade Agreement

On Jan. 21, 1999, the U.S. and Cambodian governments entered into a three-year bilateral textile trade agreement. The agreement provided for cooperation on a quota framework covering 12 apparel product categories, for increased market access for U.S. exporters and for the prevention of illegal transshipment. Under the market access provisions, Cambodia agreed to bind tariffs at applied rates and to reduce them over the term of the agreement.

The agreement also secured Cambodia’s commitment to improve worker rights and working conditions. This was the first bilateral textile trade agreement that contained a labor provision. It permitted an annual quota increase of 14 percent if the United States found that Cambodia was in “substantial compliance” with its own labor laws as well as internationally recognized core labor standards.

In December 1999, the U.S. government found that Cambodia was not in substantial compliance with its labor laws and did not authorize the 14 percent increase. However, the United States acknowledged that some progress had been made in the enforcement of core labor standards by offering a 5 percent increase, to take effect as soon as an ILO independent monitoring program was established. In early May 2000, the Cambodian government, the Garment Manufacturers Association of Cambodia and the ILO agreed to establish a project to monitor working conditions in Cambodia’s garment industry. Consequently, on May 18, 2000, the U.S. government acknowledged this move by approving a 5 percent increase for the quota year 2000.

Under the ILO program, ILO monitors visited factories and collected information about factory compliance with core labor standards and Cambodian labor law. The U.S. government then considered the results cited in the program’s quarterly public reports when making its annual decision concerning the quota increase.

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On Dec. 31, 2001, the United States and Cambodia extended the agreement for another three years, through Dec. 31, 2004. The quota for most textile exports from Cambodia in 2002 will be 15 percent higher than that in 2001. This includes both a 6 percent increase, which is given automatically each year and does not depend on core labor standards, and a 9 percent increase that was awarded to recognize Cambodia’s progress in reforming labor conditions in textile factories over the last three years. The 9 percent bonus reward for 2002 followed a round of U.S.-Cambodia labor consultations. At the beginning of the year, the ILO was conducting two projects in Cambodia to assist the government with labor law implementation.

The MOU that extended the original agreement includes additional incentives for continuing improvements in labor conditions. The potential quota reward for full compliance with internationally recognized core labor standards will increase from 14 percent to 18 percent. Under the current agreement, the two governments would conduct two rounds of labor consultations in 2002 and continue to review working conditions in the garment sector. If it is determined that Cambodia has made further progress toward substantial compliance, the annual quota bonus could be increased by up to 9 percent (as long as the quota increase does not exceed the newly established maximum of 18 percent).

Europe

Since its founding by the Treaty of Rome in 1957, the EU has developed an elaborate institutional framework both for economic integration and for the coordination of military, political and monetary policy. The founding EU treaties contained no specific provisions on the fundamental rights of EU citizens. A system of guarantees for these rights was gradually developed by the Court of Justice through its rulings, most of which were based on Article 220 of the European Community (EC) treaty. This article established the European Community and required the court to ensure that the law was observed in the treaty’s interpretation and application, and was based on a European model of society that included the protection of fundamental rights recognized by all member countries.

A series of social charters, statements and declarations preceded the more recent Community Charter of Fundamental Social Rights for Workers, adopted in 1989, and the Charter of Fundamental Rights of the European Union, adopted in 2000: 1. Social provisions of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms included several labor rights provisions drawn from the UN’s Universal Declaration of Human Rights. The European Convention and a series of protocols that followed have given rise to many cases involving worker rights and labor standards brought before the European Court of Human Rights, which remains independent from the EU structure.

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2. The 1957 Treaty of Rome contained a brief statement of social rights but no accompanying mechanism for oversight or enforcement. 3. A 1961 European Social Charter was adopted by the Council of Europe (not an EU institution), applicable to all the countries of Europe. 4. In 1977, the European Parliament, the European Commission and the council signed a joint declaration affirming respect for the fundamental rights derived from the two sources identified by the Court. 5. In 1986, a reference to the promotion of democracy on the basis of fundamental rights was added to the preamble of the Single European Act. 6. A 1987 Protocol to the 1961 European Social Charter added clauses on social rights affecting workplace equality between men and women, rights to information and consultation in the workplace and worker participation in setting working conditions. 7. A 1989 Social Charter was approved as part of the formation of the European Free Trade Area (EFTA), which included the members of the EU plus the Scandinavian states and the historically neutral states, along with Eastern European countries that have gradually been joining the EFTA and are now preparing to join the EU.

The 1986 enlargement of the EU to include the southern countries of Portugal, Spain and Greece prompted a reshaping of these many social charters into a new, detailed Community Charter of Fundamental Social Rights for Workers in 1989. The charter was followed by the Social Protocol and Agreement to the Maastricht Treaty on European Union in 1992, which set conditions for adopting binding, Europe-wide legislation on worker rights.

The Community Charter of Fundamental Social Rights for Workers covers the following subjects:

the right to freedom of movement;

the right to social protection;

the right to freedom of association and collective bargaining;

rights related to employment and remuneration;

rights related to the improvement of living and working conditions;

the right to vocational training;

the right of men and women to equal treatment;

the right to information, consultation and participation;

the right to health and safety in the workplace;

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the protection of children and adolescents in employment;

the protection of elderly persons; and

the protection of persons with disabilities.

In the EU system, “directives” proposed by the European Commission and adopted by the Council of Ministers require member countries to conform their laws to a European standard. Decisions for the EU are principally made in two ways: 1. The co-decision procedure is used for decisions about the internal market, transport policy, environmental policy or research programs. Under this procedure, the European Commission presents a proposal, often after consulting interested parties and, when appropriate, the Committee of the Regions and/or the Economic and Social Committee (ESC).42 The ESC consists of 222 members falling into three categories: employers, workers and representatives of particular types of activity, e.g., farm- ers, craftsmen, the professions, consumer representatives, scientists, teachers, cooperatives, families and environmental movements. The committee is consulted before the adoption of provisions on the internal market, education, consumer protection, the environment and regional and social affairs. The text is adopted if it wins the approval of the European Parliament and the Council of Europe through a qualified majority. 2. Under the consultation procedure, the commission presents a proposal, after which the European Parliament, the Economic and Social Committee and the Committee of the Regions are consulted. The decision is then made based on a qualified majority vote (in fields such as agriculture) or by unanimous consent (in fields such as taxation) of the council.

The European Commission is required to consult with social partners before submitting proposals on social issues. The three main organizations that represent social partners at the European level include:

the European Trade Union Confederation (ETUC);

the Union of Industries of the European Community (UNICE); and

the European Centre for Public Enterprise (CEEP).

Prior to 1999, the EU adopted several directives on health and safety, the equal treatment of men and women and consultation with workers. A Works Council Directive required European companies (defined as firms with 1,000 or more employees in two or more countries) to consult annually with worker representatives on future employment plans. Many trade unions and Global Union Federations (sector-based “global unions” uniting workers in the same industry) took advantage of the Works Council Directive to engage in multinational bargaining with European companies. However, these were a minority of the works council arrangements. Most were strictly limited to consultation and did not include collective bargaining.

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Maastricht Treaty — 1992

The Maastricht Treaty of 1992 revised EU decision-making powers to permit directives on certain topics to be adopted by a qualified system of majority votes, through a weighted voting system meant to balance the interests of large and small members. This revision ended the power of a single country to veto a directive, while binding countries that voted against a directive to compliance if it passed with a qualified majority.

The Maastricht social protocol created a three-tier system of issues subject to possible Europe-wide legislation in the form of directives. The EU could adopt directives through qualified majority voting in matters of health and safety, working conditions, information and consultation of workers, equality between women and men and persons excluded from the labor market. Unanimity is required for directives dealing with social security, job security, worker participation, employment of third-country nationals and job creation. However, much like the limits on the rights to organize, bargain and strike in the NAALC, Maastricht prohibited any directives on union organizing, collective bargaining or the right to strike. Considered so integral to national character and so dependent on national history, these matters were still reserved for member governments.

A country’s failure to implement an EU directive in its domestic law could be challenged in the European Court of Justice (ECJ) after exhausting all domestic tribunals. However, the ECJ did not then have the power to order economic sanctions or to use a European police force (no such entity exists) to enforce its judgments when violations were found. The “enforcement” power in the EU came down to the willingness of countries to abide by ECJ rulings out of a sense of responsibility to one another, based on the notion that if countries began to spurn ECJ decisions, the entire fabric of European integration might start to unravel.

For example, the ECJ found that British laws violated EU directives requiring worker consultation in a plant closing. France was found in violation of the equal treatment directive by limiting night work by women. German laws that provided affirmative action for women workers were struck down by the court on similar grounds. The German affirmative action ruling suggested that controversies over “reverse discrimination” were not limited to the United States. It also demonstrated that a supranational labor rights authority is not certain to hand down decisions that are always to the liking of progressives.

Outside Europe, many observers had the general impression that the EU worker rights regime was a model to be emulated in NAFTA or in other mechanisms in order to increase the linkage between worker rights and trade. Interestingly, however, European trade unionists and worker rights advocates were highly critical of the EU scheme. No directives could be adopted on union organizing, collective bargaining or the right to strike. European employers began to press for deregulation of the employment relationship and cuts in social benefits, and the European Commission pulled back from pro-

156 Worker Rights and Regional Trade Pacts moting the “Action Programme” for implementing the Community Charter in favor of deregulating measures. The movement to make European labor relations more “flexible” began to accelerate as unemployment rose and manufacturing shops fled to lower-cost EU members, to non-EU countries and to the United States.

Treaty of Amsterdam — 1999

The Treaty of Amsterdam was signed on Oct. 2, 1997, and went into effect on May 1, 1999. This treaty, which amended and renumbered the EU and EC treaties, was aimed at addressing rising challenges such as the rapid changes in the international situation; the globalization of the economy and its impact on employment; the fight against terrorism, international crime and drug trafficking; ecological problems; and threats to public health. It had four main objectives:

to confirm the place of employment and citizens’ rights;

to remove obstacles to freedom of movement and strengthen security;

to give Europe a stronger voice in world affairs; and

to make the EU’s structure more efficient in preparation for the union’s enlargement.

To prepare for a post-accession union, the Treaty of Amsterdam simplified the co-decision procedure. It also provided for procedures for consultation (such as consulting with parliament before adopting a decision), assent (related to accession, Structural and Cohesion Funds, the introduction of a uniform election system for the European parliament, international agreements and applicable sanctions for member country breaches of fundamental rights) and cooperation. In addition, it increased the portfolio of issues on which the ESC must be consulted to include the new employment policy, new social affairs legislation, public health and equal opportunities.

The Treaty of Amsterdam advanced the formal recognition of human rights by affirming respect for them as a basic principle of the EU. The treaty stated that “the union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the Member States.”43 It also amended the preamble of the EU treaty by confirming the member countries’ attachment to the fundamental social rights in the European Social Charter of 1961 and the Community Charter of the Fundamental Social Rights for Workers of 1989.44 The treaty established:

that the EU should respect human rights and fundamental freedoms, upon which it is founded (Article 6);

that the EU could suspend certain rights of a member state deriving from the treaty’s application, if it determined that a serious and persistent breach of these principles exists (Article 7);

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that candidate countries would have to respect these principles to join the EU (Article 49); and

that the ECJ would be given the power to decide whether European institutions had failed to respect fundamental rights (Article 46).

Under the Amsterdam treaty, the infringement of basic human rights by member states was to be addressed by procedures for determining the existence of a “serious and persistent” breach and suspending some of the member state’s rights (such as voting rights on the council).

The Amsterdam treaty also strengthened the principle of nondiscrimination between men and women, not restricting equality to equal pay as the EC treaty had done. The new treaty prohibited discrimination not only on grounds of nationality, but also on sex, racial or ethnic origin, religion or belief; disability; age; or sexual orientation. In addition, a declaration included in the final act admonished EC institutions to take the needs of disabled persons into account when adopting measures to approximate member states’ legislation.

The treaty also required closer cooperation between all countries’ police and judicial authorities to combat and prevent racism, xenophobia, terrorism, organized crime, the trafficking of persons, offenses against children, drug trafficking, corruption and fraud. It moved issues such as asylum, immigration policy and cooperation between civil courts into the EU’s regular lawmaking framework, and it incorporated into European law the principle of the non- EU “Schengen” agreement, which eliminated borders between signatory states.

Finally, the treaty made the promotion of a high level of employment one of the major objectives of the EU. It provided for the establishment of an employment committee “to promote coordination of national measures and dialogue between employers and labor, give opinions and make suggestions” to the Council of Ministers. The Community Charter of Fundamental Social Rights for Workers called for the improvement of the working environment to protect worker safety and health, working conditions, information and consultation of workers, equality between men and women at work (labor market opportunities and treatment at work) and the integration of persons excluded from the labor market. Two European directives based on the charter were eventually adopted: one on European works councils and one on parental leave.

Treaty of Nice — 2000

The Treaty of Nice, adopted on Dec. 11, 2000, by the Intergovernmental Conference (IGC), sought to improve the EU’s institutional framework in anticipation of the EU’s expansion to almost double its current size. The EU presently has 15 member states but is preparing to add countries from Central and Eastern Europe and the Mediterranean and Baltic regions. The 12 countries currently negotiating accession to the EU are: Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia and Slovenia. Turkey also is a candidate for membership.

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To ensure the effective functioning of an expanded union, the Nice treaty made a number of adjustments to prior treaties aimed at simplifying or streamlining the EU’s decision- making processes. One of these was the extension of the co-decision procedure to the following areas: incentives to combat discrimination, judicial cooperation in civil matters, specific industrial support measures, economic and social cohesion actions outside the Structural Funds and the statute for European political parties. The articles on visas, asylum and immigration were also to move subsequently to qualified-majority voting, but only in part. In addition, the treaty enhanced the role of parliament, extended the Council’s authority, reduced the number of situations in which member states could impose a veto, increased the powers of the president and alleviated the ECJ’s workload.

The Nice treaty made additional changes in the area of human rights and social welfare. While the Amsterdam treaty had allowed the council to penalize a member state for a “serious and persistent violation of fundamental rights,” it had contained no mechanism for preventing such violations.45 The Treaty of Nice empowered the council to declare that “a clear danger exists of a member state committing a serious breach of the fundamental rights or freedoms on which the union is founded.”46 Such a declaration can be made only after the member state involved has been heard, with an 80 percent council majority and the approval of the European parliament. The council may then make recommendations to the member state. Another provision directed that the ESC was to be composed of representatives of various components of organized civil society.

Prior to the Nice treaty, issues such as social security and the social protection of workers, the protection of workers when their employment contracts were terminated, the representation and collective defense of worker interests and conditions of employment for third-country nationals legally residing in EC territory required unanimous decisions. Some areas, such as worker safety, health and working conditions, could be adopted by the co-decision method. The Treaty of Nice did not change the decision-making methods outlined, but allowed the council to decide (unanimously) at a later date to introduce qualified-majority voting in areas still restricted to unanimous decisions, except for social security.

A declaration on the future of the EU was attached to the Treaty of Nice. The declaration recognizes the need for a wider and more profound debate about the EU’s future. The subjects to be considered in this union-wide debate will include:

the simplification of the treaties (combining the four into one, in a clearer and more readable format);

the delineation of responsibilities (who does what, distribution of powers between EU level and member state level and mechanisms to promote more complemen- tary action between different legislative and administrative levels);

the status of the Charter of Fundamental Rights in the treaties after its proclama- tion in Nice; and

the role of national parliaments in the institutional architecture of the EU.

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Once preparatory discussions and reports are completed, another Intergovernmental Conference will be convened in 2004 to deal with these questions and make any necessary changes to the treaties.

The Treaty of Nice will enter into force after it is ratified by member countries. Ratification was still underway in 2002.

Charter of Fundamental Rights of the European Union — 2000

In 1999, in order to address the gaps in protection of worker rights, a group of more than 100 labor law experts, with the support of European trade unions, submitted a proposal to revise the European worker rights system. Calling the current EU labor rights instruments “inadequate,” the submission stated that these instruments had “fallen far short of an effective protection of fundamental rights.”

In response to these problems, the Charter of Fundamental Rights of the European Union was adopted in 2000. The rights laid out in the charter are based on the rights recognized under the European Convention for the Protection of Human Rights and Fundamental Freedoms and on the constitutional traditions of EU countries. The charter includes a broad array of human rights guarantees against torture, arbitrary arrest and imprisonment, slavery and forced labor. It supports freedom of expression and religion, due process in judicial proceedings and other basic rights. In the labor sphere, it provides for the following worker rights:

right to information and consultation;

the right to bargain collectively and to strike;

protection against unjustified dismissal;

fair and just working conditions (including health and safety at work, limits on working hours, daily and weekly rest periods and annual paid vacations);

prohibition of child labor; and

social security and social assistance.

However, as with the 1989 Charter, no firm enforcement mechanism was created for the new instrument. The adoption of directives remains the only method of implementing Europe-wide labor standards.

The IGC at Nice decided not to include a reference to the Charter of Fundamental Rights in the treaties. The charter’s status is on the agenda for the 2004 conference.

It is important to note that unions’ strength and organizational effectiveness have a significant impact on the extent to which international agreements and legal frameworks that pro-

160 Worker Rights and Regional Trade Pacts tect worker rights are honored.47 For example, the EU’s Acquired Rights Directive provides workers whose enterprises are acquired by another company with the right to keep their jobs at the same pay rate and under essentially the same conditions for a period after the takeover. However, employers basically refused to apply this directive to the outsourcing of public services until unions forced them to do so through the court system. Even now, the extent of compliance with these regulations is often dependent upon how informed local unions are regarding their members’ legal rights and how well they are organized and prepared to challenge their employers in order to ensure that the regulations are honored.48

Stability Pact for Southeastern Europe — 1999

The Stability Pact for Southeastern Europe was adopted on June 10, 1999, in Cologne, Germany. The pact is a framework agreement on international cooperation committing partners to develop a shared strategy for stability and growth in Southeastern Europe. Its purpose is to encourage and strengthen cooperation between Southeastern European (SEE) countries and to coordinate international assistance efforts aimed at facilitating the region’s political, economic and security integration into Europe, bringing these countries closer to full EU membership.

The Stability Pact emerged from the international community’s efforts to replace the previous policy of reactive crisis intervention in the region with a longer-term conflict prevention strategy. In the founding document, more than 40 partner countries and organizations sought to strengthen the countries of Southeastern Europe “in their efforts to foster peace, democracy, respect for human rights and economic prosperity in order to achieve stability in the whole region.” The pact was reaffirmed at a summit meeting in Sarajevo, Bosnia-Herzegovina, on July 30, 1999.

Stability Pact partners include:

EU member states and the EC;

Southeastern European and neighboring countries and territories: Albania, Bosnia- Herzegovina, Bulgaria, Croatia, the Czech Republic, Hungary, Kosovo, Macedonia, Moldova, Poland, Romania, Serbia and Montenegro, Slovakia, Slovenia and Turkey;

Non-EU members of the G-8: USA, Canada, Japan and Russia;

Norway and Switzerland;

International organizations: United Nations (UN), Organization for Security and Cooperation in Europe (OSCE), Council of Europe, UN Commission on Human Rights (UNCHR), North Atlantic Treaty Organization (NATO) and OECD;

International financial institutions: World Bank (WB), International Monetary Fund (IMF), European Bank for Reconstruction and Development (EBRD), European Investment Bank (EIB) and Council of Europe Development Bank (CEB);

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Regional initiatives: Black Sea Economic Cooperation (BSEC), Central European Initiative (CEI), South East European Cooperative Initiative (SECI) and South East Europe Cooperation Process (SEECP).

Stability Pact policy is based on the idea that conflict prevention and peace building will be successful only if they are developed on a parallel basis in three key areas:49

the creation of a secure environment;

the promotion of sustainable democratic systems; and

the promotion of economic and social well-being.

The agreement has no independent financial resources or implementation bodies. A special coordinator and a 30-member team coordinate pact activities from a headquarters office in Brussels. Their task is to harmonize the political strategies of pact partners for the region and to coordinate regional initiatives in order to avoid unnecessary duplication of effort. The special coordinator chairs the regional table, which oversees the work of three working tables.

Working Table I: Democratization and Human Rights

This working table focuses on interethnic dialogue and cross-border cooperation, refugee issues, media, education and youth, human rights and national minorities, good governance and parliamentary cooperation. It also works at promoting gender equality and strengthening the pact’s links with civil society.

Working Table II: Economic Reconstruction, Development and Cooperation

This working table focuses on five principal goals:

private sector development, primarily through trade liberalization and the improvement of the business regulatory environment and financial sector;

poverty reduction and social development, primarily through policies to foster social cohesion and inclusion, encourage democratic and participatory processes and strengthen social protection;

institutional development and governance by improving institutional and admin - istrative efficiency and addressing corruption;

increased investment in infrastructure; and

improved environmental protection.

Working Table III: Strengthening of Internal and External Security

This working table seeks to establish transparency and predictability and to promote regional cooperation on those issues around security sector reform. It has two sub-tables,

162 Worker Rights and Regional Trade Pacts one on security and defense and one on justice and home affairs. The sub-table on security and defense works on arms control and non-proliferation, on the coordination of mine-related issues and on the development of a regional approach to the excessive and uncontrolled circulation of small arms and light weapons. The sub-table on justice and home affairs works on initiatives fighting corruption and organized crime, with particular attention to trafficking in human beings. It also works with initiatives promoting the training and regional cooperation of police and border police forces.

The EC and the World Bank coordinate economic assistance measures for the region, jointly chairing a High-Level Steering Group, composed of the Stability Pact Special Coordinator, the finance ministers of G-8 countries, the country holding the rotating EU presidency and representatives of international financial institutions and organizations.

Initiative for Social Cohesion — 2000

On Oct. 17, 2000, Stability Pact members launched the Initiative for Social Cohesion, noting that there could be no lasting peace and stability in Southeastern Europe without social justice and social cohesion within stable democracies. The founding statement reaffirmed members’ commitment to the Universal Declaration of Human Rights, the European Convention on Human Rights, the ILO Declaration on Fundamental Principles and Rights at Work and its follow-up activities, the legal instruments of the Council of Europe and other international conventions, agreements and recommendations of the Council of Europe, the EU and the ILO.

The initiative coordinates donor projects on health, social protection, vocational training and labor market policy, social dialogue and housing policy. A Social Cohesion Initiative Consultative Group provides guidance to the initiative, recommends strategies and projects for implementing the priorities and monitors overall progress of the initiative. The consultative group is composed of representatives from Stability Pact beneficiary countries, international organizations and donors, the office of the special coordinator and social partners and relevant NGOs. The initiative’s main donor countries are France, Greece, Italy and Switzerland.

The initiative’s priorities are:

helping SEE countries align their employment and social systems closer to EU standards;

strengthening tripartism and social dialogue among governments, employers and workers;

supporting civil society organizations and strengthening their role in social policy development;

ensuring equal access to social protection, public utilities, health care, housing, employment opportunities and educational and training facilities for all mem-

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bers of society through the promotion of socially inclusive institutions;

enhancing social and economic opportunities for youth and women; and

combating the trafficking of human beings, particularly women and children.

The strategy outlined in the initiative’s action plan seeks to:

promote freedom of association in private and public sectors, as well as enforcement through ILO and Council of Europe supervisory processes;

promote social dialogue to build consensus on social and economic reform, to strengthen market mechanisms and to eliminate the shadow economy (unreg- ulated work);

involve social partners in employment, social protection, health and housing activities and other pact initiatives, as appropriate;

promote social dialogue and tripartism;

create a legal environment conducive to effective bipartite social dialogue and collective bargaining in order to regulate terms of employment and working conditions;

improve the capacity of employers’ and workers’ organizations to play an effective role in social and economic policy development and implementation;

promote legislative reform to ensure that social partners are free and independent;

review legislative framework on labor relations vis-à-vis European standards; and

improve labor law enforcement by strengthening the capacity of labor ministries and other relevant institutions.

In 2002, labor-related Stability Pact projects that were underway or scheduled to begin included:

a French-funded project that seeks to strengthen social security in the region by restructuring the social security system, strengthening financial sustainability and complementing job creation and economic recovery;

a project funded by the Council of Europe and the Italian government that promotes the coordination of national social security schemes through the creation of a regional network and the establishment of coordination mechanisms;

a French-funded project that promotes the reform of vocational training policies in SEE countries for “decent” work and seeks to improve the competency and employability of workers, including vulnerable groups;

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a project funded by the French and Italian governments that seeks to strengthen social dialogue in SEE countries by reinforcing the autonomy and capacity of workers’ and employers’ organizations and labor ministries; strengthening institutions for social dialogue; and promoting regional cooperation on social dialogue, employment and labor law reform;

a Swiss-funded project that seeks to establish a regional network of trade union legal experts on labor law reform; and

a project funded by France, Italy and Switzerland that seeks to strengthen the role of social partners and ministers of labor.

The range of issues covered by the Stability Pact is extremely broad, given its lack of an independent resource base. Consequently, after a couple of years of operation, some observers began to criticize the pact for its failure to increase donor pledges beyond their original commitments outside the pact, for a plethora of meetings that yielded little corresponding action and for its failure to deliver assistance, particularly critically needed assistance, in a timely way.

A report issued by the East-West Institute and the European Stability Initiative in 2001 recommended that the pact be refocused on key areas where it could make a decisive contribution, such as promoting the functional integration of Southeastern Europe with the EU as part of a longer-term effort to create a Euro-Atlantic zone of stability; developing a common European energy market; developing a concrete program to combat illegal movement and cross-border crime while at the same time allowing for maximum freedom of movement to build a European identity in Southeastern Europe; and reshaping pact structures. Proponents of social initiatives caution, however, that full democratic and social development, including the establishment of a civil society and a genuine social dialogue, cannot be sidelined if long-term security, prosperity and the rule of law are to be achieved.

New Free Trade Agreements with Chile and Singapore

Under fast track authority, the Bush administration concluded two new trade agreements in 2002: the U.S.-Chile Free Trade Agreement (FTA)—the first comprehensive trade agreement between the United States and a South American country—and the U.S.- Singapore FTA. The agreements aim at stripping away barriers and facilitating bilateral trade and investment. Both governments anticipate signing and submitting them for congressional approval in 2003.

In the U.S.-Chile FTA’s labor chapter, the United States and Chile reaffirm their obligations as ILO members and as signatories to the 1998 ILO Declaration. While acknowl- edging their right to establish their own respective labor laws, they pledge to see that such

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laws are consistent with internationally recognized core labor standards and agree not to encourage trade or investment by weakening relevant domestic labor laws. Both governments promise to provide access to judicial tribunals for labor law enforcement; ensure that the enforcement process is fair, equitable, and transparent; and promote public awareness of their labor laws.

The labor chapter also establishes a Labor Affairs Council, composed of cabinet-level or equivalent government representatives, to oversee implementation of the labor provisions, consultations on labor issues and cooperation. An annex provides for consultation to improve labor standards related to the ILO Declaration, labor relations, working conditions, issues related to small and medium enterprises, social protections and technical issues.

The only enforceable provision in the U.S.-Chile FTA’s labor chapter is each government’s primary commitment “not [to] fail to effectively enforce its labor laws ....” In the United States, this applies to federal laws only. If one government believes that the other has not complied with this commitment, its first step is to request cooperative consultations. After 60 days of consultations, the complainant may access the agreement’s dispute settlement provisions. A dispute settlement panel can impose monetary penalties of up to $15 million annually and suspend FTA benefits if the penalty is not paid.

The U.S.-Singapore FTA’s labor and environmental provisions differ little from those in the U.S.-Chile FTA. The U.S.-Singapore FTA establishes a Joint Committee to address any labor issues that arise and outlines a labor cooperation process. The Joint Committee may establish a Subcommittee on Labor Affairs, consisting of officials from the labor ministry and other appropriate government agencies or ministries. The subcommittee would meet to discuss implementation matters, and each meeting would include a public session, unless the governments decide otherwise.

Disputes in the U.S.-Singapore FTA are resolved through labor cooperation. The first step is consultation, which either government can initiate. If consultations are unsuccessful, either government may request that the Subcommittee on Labor Affairs be convened. If this consultation level, which may include conciliation or mediation procedures, is also unsuccessful, the case moves to an arbitral panel. As in the U.S.-Chile FTA, the dispute resolution system may be used only to address a government’s failure to enforce its own labor laws.

The U.S. Trade Act of 2002 requires trade advisory committees to prepare reports on proposed trade agreements subject to Trade Promotion Authority (TPA) for the presidential administration and the U.S. Congress. In Section 2012(a) of the TPA, Congress directs the U.S. Trade Representative to ensure that worker rights are protected in new trade agreements. TPA Section 2102(a)(6) cites the overall negotiating objective “to promote respect for worker rights . . . consistent with core labor standards of the ILO” in new trade agreements. The TPA also has negotiating objectives on the worst forms of child labor, non-derogation of labor laws and effective labor law enforcement.

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The trade negotiation advisory committee system was established in the Trade Act of 1974 to ensure that the U.S. government would receive advice and assistance from a range of stakeholders as they developed trade policy. The advisory program is run jointly by the U.S. Trade Representative (the lead agency), the Department of Commerce, the Department of Agriculture, the Department of Labor and the Environmental Protection Agency. The advisory groups are composed of representatives of businesses, labor unions, environmental and consumer groups and state governments, along with academics and retired U.S. government officials.

The Labor Advisory Committee for Trade Negotiations and Trade Policy (LAC), composed of labor leaders and experts from multiple sectors, was tasked with evaluating the impact of the Chile and Singapore agreements on the U.S. economy and workers. The LAC submitted its report on Feb. 28, 2003. The report’s highly critical view diverges widely from that of the U.S. government. The LAC report contends that the Chile and Singapore agreements neither fully meet TPA objectives nor promote the economic interest of the United States. George Becker, LAC chairperson and former president of the United Steelworkers union, stated in the report that “these agreements repeat the same mistakes of the North American Free Trade Agreement and are likely to lead to the same deterio- rating trade balances, lost jobs, trampled rights and inadequate economic development that NAFTA has created.”

Among other flaws, the committee identified the following:

The labor provisions do not protect core worker rights in any of the countries involved; they represent a big step backward from the U.S.-Jordan FTA and unilateral trade preference programs.

Both agreements primarily benefit the few large U.S. enterprises that ship work abroad, exploit guest workers in all three countries and constrain governments’ ability to regulate their behavior.

Because the dispute settlement process applies to only one worker rights obligation—enforcement of domestic labor law—violations over ILO standards and non- derogation of labor laws cannot be remedied. Moreover, the exclusive focus on domestic labor law actually creates an incentive for countries to weaken or eliminate labor laws in order to avoid dispute settlement procedures.

Under the Chile FTA, workers lose the leverage they had gained under the GSP, including the voice they had through the individual petition procedure.

The LAC strongly criticized the enforcement process, which excludes governments’ obligations to meet international worker rights standards, allows countries to lengthen the consultation process and lets them cap the maximum amount of fines and sanctions at unacceptably low levels, without regard to the level of harm. The $15 million maximum fine under the agreement is less than 5 percent of import charges that the United States

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collected on products from Singapore—and less than 3 percent of import charges collected on Chilean products—in 2002.

The LAC also denounced the fact that the process essentially allows violators to pay fines to themselves with little oversight. Fines, or “assessments,” are paid into a fund to improve labor law administration in the violating country, thereby rewarding a government for its failure to enforce its laws. Neither FTA prohibits violators from altering their budgets, so there is no guarantee that additional money will be spent on enforcement. Moreover, the LAC noted, the FTAs do not address what constitutes acceptable use of the funds. The report cited conferences and seminars held under provisions in the NAFTA labor side agreements that have failed to improve respect for worker rights.

Endorsing the LAC’s findings, AFL-CIO President John Sweeney urged Congress to reject the Chile and Singapore FTAs, which had been developed under a non-transparent process. Sweeney charged that the FTAs “are a blueprint to a global economy without workers’ rights, job and wage security and balanced international trade.” He contended that both FTAs are “weaker than existing trade policies in protecting workers’ rights and contain provisions on investment, services, government procurement, intellectual property rights and immigration policies that will undermine the ability of governments to regulate public health, the environment and domestic labor markets.”

ENDNOTES

1 Sweeney, John J., “Testimony of John J. Sweeney, President, AFL-CIO, Before the Senate Finance Committee on the Jordan Free Trade Agreement,” March 20, 2001, pp. 1-2. 2 Id., p. 3. 3 Exchange of letters between Jordanian Ambassador Marwan Muasher and U.S. Trade Representative Robert B. Zoellick, July 23, 2001. 4 Clinton’s position was spelled out in a major campaign speech advertised as his definitive campaign statement on trade policy. See Governor Bill Clinton, “Expanding Trade and Creating American Jobs, Address at North Carolina State University,” Raleigh, N.C., Oct. 4, 1992. 5 See Revised Notice of Establishment of United States National Administrative Office and Procedural Guidelines, 59 Fed. Reg. 16,660-62 (1994); Regulation of the National Administrative Office of Mexico, Diario Oficial de la Federación, April 28, 1995; Canadian NAO Guidelines for Public Communications, Nov. 23, 1998. Available at Canadian NAO web site, http://labour. hrdc-drhc.gc.ca/psait_spila/aicdt_ialc/pc_naalc/guidelines/index.cfm/doc/english. 6 Id., Article 16(3). 7 NAALC Articles 38-40; Annex 39. 8 Id., Article 41; Annex 41B. 9 “Naftamath—Two Years Later,” Discussion Paper, AFL-CIO, March 1996.

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10 Levinson, Jerome, “NAFTA’s Labor Agreement: Lessons from the First Three Years,” paper presented at conference on Linking Labor Agreements to Free Trade, Washington College of Law, American University, Nov. 12, 1996, p. 11. 11 See “Review of the North American Agreement on Labor Cooperation (1999),” Public Comment of Robert White, president of the Canadian Labour Congress, on file with Secretariat of the Commission for Labor Cooperation, Dallas, and available at www.naalc.org. 12 Op. Cit., Public Comments of Berta Lujan, General Coordinator, RED Mexicana de Acción Frente al Libre Comercio; Francisco Hernandez Juárez, president, Unión Nacional de Trabajadores. 13 “The Free Trade of the Americas—Expanding NAFTA to the Rest of the Hemisphere,” AFL-CIO web site page, 2001, p. 1. 14 Id., p. 2. 15 Malowinsky, Tom, Letter to the Honorable Robert B. Zoellick, U.S. Trade Representative, Human Rights Watch, April 25, 2001, p. 2. 16 Id. 17 See “Review of the North American Agreement on Labor Cooperation (1999),” Public Comment of Abraham Katz, President, U.S. Council for International Business. 18 Op. Cit., Public Comment of Juan Gallardo on behalf of these organizations. 19 McCabe, Kathy, “Lights Out: For Production Workers, Osram’s Exit Means NAFTA Retraining Provision Kicks In—But Anger And Doubt Persist,” The Boston Globe, Sept. 27, 1998, p. D1. 20 See Sprint Corporation v. NLRB, 129 F.3d. 1276 (D.C. Circuit 1997). 21 See Estados Unidos Mexicanos v. DeCoster, 1st Cir., No. 99-2170 (Oct. 11, 2000). 22 An earlier complaint had been filed by the Florida Tomato Exchange on Sept. 28, 1998, raising the issue of the use of child labor in the production of fruit and vegetables in Mexico. In accordance with its procedural guidelines, the NAO held this submission in abeyance for a year for the complainants to provide further information. No additional information was provided and the case was closed as of Oct. 4, 1999. 23 See Pablo Arnoldo Topet, Integración Regional y Relaciones Laborales Mercosur (ILO background paper, January 1999), p. 36. 24 See Contrato Coletivo entre a Volkswagen do Brasil Ltda. e Volkswagen de Argentina S.A. e o Sindicato dos Metalurgicos do ABC, Sindicato dos Trabalhadores nas Industrias e Oficinas Metalurgicas, Mecanicas e de Material Eletrico e Eletronico de Taubete, Tremembe e Distritos, a Confederacao Nacional dos Metalurgicos da CUT, e o Sindicato de Macanicos e Afins de Transporte Automotor da Republica da Argentina e as Comissoes Internas de Fabrica, April 16, 1999. 25 “Andean Labor Ministers Approve Action Plan for Creating Jobs and Guaranteeing Labor Rights,” Social Agenda, Andean Community, May 21, 1999, available at http://www.comunidadandina.org/ingles/press/press_n2.htm, pp. 1, 2. 26 See “Labor Charges Canada Missing Chance to Improve Side Agreements in Chile Pact,” Daily Labor Report No. 87, Bureau of National Affairs (May 6, 1996), p. A-8. 27 See Carol Pier, “Labor Rights in Chile and NAFTA Labor Standards: Questions of Compatibility on the Eve of Free Trade,” 19 Comparative Labor Law and Policy Journal 185 (Winter 1998). 28 The annual report is available at the web site of the Canadian national secretariat, http://labour.hrdc-drhc.gc.ca/doc/ialc-cidt/eng/e/backen.htm. 29 See Gary Younge, “Caribbean at the Crossroads: The Region’s Search for an Identity to Call its Own,” The Guardian (London), April 15, 1999, p. 2.

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30 Charter of Civil Society for the Caribbean Community, Article XIX, ¶1 and 2. 31 Id., ¶3. 32 Id., Article XXII. 33 Article XXV, ¶1 and 2. 34 Id., ¶3 and 4 (1). 35 Id., ¶4 (2). 36 Id., ¶4 (3) and 5. 37 CARICOM Declaration of Labour and Industrial Principles, www.caricom.org/expframes2.htm. 38 “The Free Trade Area of the Americas—Expanding NAFTA to the Rest of the Hemisphere,” www.aflcio.org/issuespolitics/toolkit/upload.ftaa.pdf, Feb. 16, 2001, p. 2. 39 “Global Fairness and the Free Trade Area of the Americas (FTAA),” www.aflcio.org/aboutaflcio/ecouncil/ec0214d2001.cfm, Feb. 14, 2001, pp. 2-3. 40 Statement of Medium Term Strategic Priorities for the Asia Pacific Economic Cooperation (APEC) Human Resources Development (HRD) Working Group, Jan. 23, 1997. 41 Coordinator’s Report to the 15th HRD Working Group Meeting, Sydney, Australia, 10th NEDM Meeting, Jan. 1997, pp. 14-15. 42 “Amsterdam Citizen’s Guide: A New Treaty for Europe,” http://europa.eu.int, Feb. 3, 1998, p. 2. 43 “The Amsterdam Treaty: A Comprehensive Guide,” http://europa.eu.int, May 30, 2002, p. 3. 44 “Amsterdam Citizen’s Guide: A New Treaty for Europe,” http://europa.eu.int, Feb. 3, 1998, p. 3.

45 “Who’s Who in the European Union? What Difference Will the Treaty of Nice Make?” European Commission, 2001, http://europa.eu.int, p. 19. 46 Id. 47 Martin, Brendan, “Unions’ Response to Changing Labor Markets,” paper presented before the Southeastern European Labor Educators Network on Economic Reform, Skopje, Macedonia, March 25, 2002. Available at http://www.seelabored.org/PAGES/Pseelabored.html, click on Roundtable II. 48 Id., p. 13. 49 See http://www.stabilitypact.org/stabilitypactcgi/catalog/cat_descr.cgi?prod_id=1806, July 17, 2002.

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Worker Rights and Global Trade Pacts The international trade community must begin to listen to the call of international civil society and labor organizations to incorporate social and labor criteria —and a more democratic process— into WTO decisions and rulings. Worker Rights and Global Trade Pacts

In 1948, the General Agreement on Tariffs and Trade (GATT) was founded with 23 member trading nations. The GATT grew out of the post-World War II conviction of national American and European leaders that protectionist policies had contributed to the U.S. “Great Depression” and the international political upheavals of the 1930s. The GATT, which eventually grew to 135 member nations, worked gradually toward an open world trading system, governed by the rule of law.

As years passed, those in international political and academic circles increasingly believed that opening world markets would promote growth and raise living standards. They asserted that open markets would give countries a greater stake in maintaining stability and prosperity beyond their own borders, thereby strengthening a fragile peace.

As part of its effort to develop an open global trading system, the GATT adopted a list of “unfair trading practices,” such as dumping goods in foreign markets at prices below production costs and subsidizing exports, but the list did not include violation of basic worker rights. The AFL-CIO continued to call for the incorporation of a “social clause” in the GATT that would “clearly define the denial of basic worker rights as the unfair trading practice that it is.” This clause, however, was never adopted.

During the 1990s, the “Uruguay round” of GATT negotiations laid the framework for the creation of the World Trade Organization (WTO), a trade pact covering virtually the entire world. The WTO incorporated GATT agreements. This chapter discusses the WTO and other global trade-related agreements and organizations.

World Trade Organization

The WTO, successor to the GATT, was established on Jan. 1, 1995. The final accord was signed by 111 governments. The purpose of the organization is to set global rules for trade; it is the legal and institutional foundation of the multilateral trading system. It sets the principal contractual obligations determining how governments frame and implement domestic trade legislation and regulations. Its primary functions are:

to administer and implement the multilateral and plurilateral trade agreements that together comprise the WTO;

to act as a forum for multilateral trade negotiations;

to seek to resolve trade disputes;

to oversee national trade policies; and

to cooperate with other international institutions involved in global economic policymaking.

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The WTO’s day-to-day work is conducted by a number of other bodies, mainly the General Council, which also handles dispute resolution and trade policy review. The WTO Secretariat, based in Geneva, is headed by a director general (the post rotated to Dr. Supachai Panitchpakdi of Thailand on Sept. 1, 2002) and four deputy directors-general. It has about 450 staff members. It provides services to WTO delegate bodies for negotiations and the implementation of agreements. It also provides technical support to developing countries, particularly the least developed.

In addition, WTO economists and statisticians provide trade performance and trade policy analyses. The legal staff assists in the resolution of trade disputes involving the interpretation of WTO rules and precedents. The Secretariat also assists with accession negotiations for new members and advises governments considering membership. Its budget is approximately $83 million, with individual contributions calculated on the basis of shares in total trade conducted by members.

The WTO seeks to provide predictable and increasing access to global markets. Accordingly, members are required to treat the products of other members no less favorably than the products of any other country. Moreover, once goods have entered a market, they may not be treated less favorably than their domestically produced equivalents.

Quotas are generally prohibited, but tariffs or customs duties are permissible. Nevertheless, tariff reductions made by more than 120 countries in the Uruguay Round of the GATT will result in a 40 percent cut in industrial countries’ tariffs. Members have also made commitments regarding national regulations on services.

The WTO also seeks to promote “fair competition” by strengthening GATT rules on duties levied against dumping and subsidies. In addition, the WTO has generated agreements on farm trade, intellectual property and trade in services. The WTO aims at encouraging development and economic reform by maintaining GATT provisions that favor developing countries, giving these countries transition periods to adjust to the more difficult WTO provisions. “Least developed” countries receive additional flexibility as well as accelerated market access concessions for their goods.

The WTO has the potential for tremendous impact on the daily lives of citizens of all nations. A country’s membership in the WTO weakens its ability to protect its citizens with domestic policies on human and labor rights, health and environmental issues and consumer protections; once a country has signed the accord, such provisions are, to some extent, subject to their compatibility with WTO mandates. Currently, if domestic laws in the United States or any other country are challenged by a WTO member nation, the decision on whether or not that law will be permitted to stand will be deferred to WTO committee members who are not elected officials of any country. This new system, establishing limits on a country’s ability to subordinate WTO goals to its

174 Worker Rights and Global Trade Pacts own, effectively eliminates sovereignty and virtually institutionalizes the “race to the bottom” not only in social and health standards but in the democratic process itself.

The WTO is governed by the ministerial conference, which meets every two years. The first ministerial meeting was held in December 1996, in Singapore. As a result of intensive discussions with labor representatives, the WTO included language on worker rights for the first time in the Singapore Declaration:

We renew our commitment to the observance of internationally recognized core labour standards. The International Labour Organization (ILO) is the competent body to set and deal with these standards, and we affirm our support for its work in promoting them. We believe that economic growth and development fostered by increased trade and further trade liberalization contribute to the promotion of these standards. We reject the use of labour standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-wage developing countries, must in no way be put into question. In this regard, we note that the WTO and ILO secretariats will continue their existing collaboration.

However, despite the declaration’s affirmation of support for core labor standards and WTO-ILO cooperation, the WTO subsequently failed to engage in any significant follow- up with the ILO, a lapse that was vocally condemned by the International Confederation of Free Trade Unions (ICFTU). Rather, the ICFTU called upon the WTO to develop a transparent, multilateral approach to worker rights. This approach would include working closely with the ILO to consider together how to strengthen international labor standards in the global trade system, potentially through what has been called the “social clause” and is now more commonly referred to as the “worker rights clause.” The ICFTU suggested focusing on eight “core standards,” which include Conventions No. 87 and No. 98 (freedom of association), No. 29 and No. 105 (prohibition of forced labor), No. 100 and No. 111 (discrimination and equal pay), No. 138 (minimum age for employment) and No. 182 (worst forms of child labor). The U.S. government has also supported the creation of a working group on worker rights in the WTO.

Yet despite all of the evidence that links sustainable development to basic human and worker rights, the WTO has resisted even the formation of a working group on labor standards, most recently at the Seattle ministerial meeting in December 1999. However, protests by workers, environmentalists, human rights advocates and other social justice advocates, along with objections from many developing countries that WTO rules were stacked in favor of rich countries, forced the collapse of the Seattle meeting. WTO negotiators decided to reconvene their meeting in the isolated, repressive country of Qatar in 2001 to avoid social protesters. The Doha meeting, held in November 2001, did not result in any progress for worker rights proponents.

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Organization for Economic Cooperation and Development (OECD)

The OECD is an economic policy research and reporting body that was established in 1961 as an international organization of the industrialized, market economy countries. It was considered the “rich men’s club” of the 19 advanced industrial nations of Western Europe, North America and the Pacific. Since then, membership has expanded to 30 nations, including Korea, Mexico, Turkey and some Eastern European countries.

The OECD analyzes countries’ economic performance and seeks to coordinate policies generally favorable to free trade. It has thus far avoided the fire that many trade unions and NGOs aim at the World Bank, the International Monetary Fund and other proponents of corporate-driven globalization, even though the OECD is just as committed to promoting the same policies of free trade, privatization and so on. However, the OECD structure accommodates a Trade Union Advisory Committee (TUAC), which gives unions a voice in its affairs greater than the voice afforded in other international economic organizations.

The OECD produced an important benchmark report on trade, employment and labor standards in December 1996. The OECD identified “core standards as freedom of association, the right to organize and bargain collectively, the elimination of child labor exploitation, the prohibition of forced labor and nondiscrimination in employment.” These were based not only on the pertinent ILO Conventions, but also on the United Nations (UN) Universal Declaration of Human Rights, the UN Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

The report suggested that “proper implementation of some core labour standards can support economic development, permitting an expansion in trade.”1 The report noted that in some cases governments appeared to deny core standards to workers or fail to enforce them intentionally to improve industrial competitive advantage or to attract investment. It warned that the gains earned from such a strategy were likely to be short- lived and could be outweighed in the long term. The report also concluded that “concerns expressed by certain developing countries that core standards would negatively affect their economic performance or their international competitive position are unfounded.”2

In 2000, the OECD issued new Guidelines for Multinational Enterprises (Revision 2000). These are reviewed in Chapter 7, Strategies for Promoting Corporate Accountability.

Multifiber Arrangement (MFA)

The Multifiber Arrangement (MFA), which was introduced in 1974, provided a multilateral vehicle for the regulation of textile and clothing trade by setting quotas between all

176 Worker Rights and Global Trade Pacts major exporting countries and all major importing countries. Initial negotiations over the MFA grew out of the need to bring some stability to the complex and rather unstable trading environment of the 1950s and 1960s.

In response, the U.S. government had begun to negotiate voluntary export restraints (VERs) with its competitors. Later termed the orderly market arrangement, the MFA was essentially an international system for the regulation of VERs. Its purpose was to protect textile production in domestic markets if surges in imports caused or threatened to cause market disruption.

Although recognized by the GATT, the MFA was a major departure from GATT rules, particularly from its basic principles of nondiscrimination and national treatment. Accordingly, on Jan. 1, 1995, the Agreement on Textiles and Clothing (ATC) succeeded the MFA as a transitional instrument. The ATC grew out of the negotiations for the WTO to replace the GATT.

The ATC calls for the progressive elimination of all quantitative restrictions in textile and clothing trade. ATC signatories must bring their textile trade policy into full conformity with the agreement’s terms by Jan. 1, 2005, when the textile sector will be fully integrated into the multilateral trading system.

The agreement addresses the following areas:

3 product coverage that includes yarns, fabrics, made-up textile products and clothing;

a plan for the progressive integration of these textiles and clothing products into GATT 1994 rules;

a liberalization process to progressively enlarge existing quotas to the point of elimination by increasing annual growth rates (quotas were set to grow by 7 percent annually in 1995–1997, by 8.7 percent annually in 1998–2000 and by 11.05 percent in 2002–2005);4

a safeguard mechanism to deal with damage or threats to the domestic producers that arise as a result of the terms of transition;

the establishment of a Textiles Monitoring Body to monitor the application of the agreement, ensuring that all of its terms are observed; and

other provisions, including rules on circumvention, the administration of restrictions, the treatment of non-MFA restrictions and commitments undertaken elsewhere under the WTO’s agreements and procedures.

Most economists have hailed the ATC as a victory for least developed countries (LDCs), noting that the removal of limitations on exports will enable LDCs to sell more goods abroad. However, the integration of the textile industry may produce mixed results.

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First, developing countries that formerly benefited from preferential treatment with the EU or the United States will face stiffer competition once the MFA disappears. Countries with the lowest wage rates will have the greatest potential advantage. For example, many observers fear that China, a new WTO member with an enormous labor force and advanced technological capabilities, may unload huge quantities of textiles onto the world market. This influx could drive prices down and cut into the market shares of the least developed Asian countries such as Cambodia, Laos, Nepal and Bangladesh.

Second, fragile democracies may be threatened when governments lower human and worker rights protections to prevent the flight of foreign investors. Such actions would place their own domestic markets and political stability in jeopardy, leading to long-term losses for all stakeholders. This action would also have the perverse effect of punishing developing countries that are making strides toward decent pay levels and respect for worker rights in their textile/apparel industries, and rewarding low-wage, repressive regimes like China. Third, workers in industrialized countries may be affected as well, as they will lose jobs when companies seek the lowest possible labor costs abroad.

Proponents of the ATC counter these claims, saying that the competition will force producing countries to develop more dynamic, sophisticated market strategies, learn how to specialize and employ stricter quality control. They argue that the future comparative advantage of the LDCs will depend in part on having a technologically skilled workforce. The need for highly skilled workers, proponents say, will promote increased investment in workforce training and skill development and a readiness and ability to access and utilize the latest in information technologies and marketing systems.

However, ATC critics caution that if investors choose to employ cheap labor resources without investing in training and skills development, the workforce in a manufacturing country will experience only a momentary rise in employment, while skilled laborers will be displaced. Moreover, if investors choose to routinely rely primarily on migrant worker pools, the nations that now hope to benefit from their large workforce resources will not stand to gain after all.

The debate over the phaseout of the MFA reflects the broader international debate over how globalization should proceed to generate prosperity and peace for all nations. The real economic and political impact of a globally integrated textile industry will depend in large part on the choices made by investors and host countries, the influence of international policymakers and the strength of the global union movement. In order to avoid economic and political reversals, investors must take a longer-term view by investing in their workforce, supporting high democratic standards and avoiding the temptation to simply pull up operations every time they locate a country with lower democratic and worker standards. Governments of developing countries must create a legal and enforcement environment that protects freedom of association and other international human and worker

178 Worker Rights and Global Trade Pacts rights standards despite pressure from unscrupulous companies to lower standards. Industrialized countries must develop and promote coherent, integrated economic and social policies that truly support developing countries’ efforts to promote core labor standards and democratic political systems.

The international trade community must begin to listen to the call of international civil society and labor organizations to incorporate social and labor criteria—and a more democratic process—into WTO decisions and rulings. Meanwhile, unions in all countries must improve the effectiveness of their advocacy for worker rights, preparing themselves to be strong and effective negotiators in the global marketplace.

These would not be easy tasks, even if all the international players were in agreement over how to proceed. The fact that fundamental social and economic policy is trapped in an increasingly heated debate suggests a short-term future of mistakes and reversals evidenced by political and economic upheavals, and many new beginnings.

ENDNOTES

1 Trade, Employment and Labour Standards, OECD Washington Center, May 21, 1996, p. 4.

2 Id., p. 6.

3 See the Appendix of the World Trade Agreement on Textiles and Clothing, at http://www.wto.org/english/tratop_e/texti_e/texintro_e.htm

4 See http://www.wto.org/english/thewto_e/minist_e/min96_e/textiles.htmfor a table showing the percentage of product integration at each stage, the expansion of the growth rates of remaining quotas and the annual quota growth.

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Chapter 6

Worker Rights and International Financial Institutions Developing labor standards needs to go hand in hand with building institutional capacity and trust between workers, employers and the government.

—World Bank Report, 2002 Worker Rights and International Financial Institutions

Over the past couple of decades, few international institutions have had more influence over economic development policy in developing countries, or generated more controversy over their application, than the international financial institutions (IFIs). IFIs have a huge impact on international economic and political development, global trade and the choices country governments make about worker rights law and practice.

This chapter describes the history, organization, policies and practices of IFIs. It also explores some common criticisms leveled against them by advocates of human, trade union and environmental rights. Although the chapter concentrates primarily on the World Bank and the International Monetary Fund (IMF), the two largest and mightiest IFIs, several smaller, regional IFIs also play an active role in the global economy. Similar in form and function to the World Bank and the IMF, they also draw similar criticisms. Regional IFIs include the African Development Bank (ADB), the Asian Development Bank (ADB), the European Bank for Reconstruction and Development (EBRD) and the Inter- American Development Bank (IDB).

History of the World Bank and the International Monetary Fund

In July 1944, representatives from 45 countries met in Bretton Woods, New Hampshire, to devise a more stable global economic system and provide for post-war reconstruction. The Bretton Woods conference resulted in the creation of two IFIs: the IMF and the International Bank for Reconstruction and Development (IBRD, now part of the World Bank). The IMF was originally charged with providing a stable monetary system that would promote world trade, while the IBRD was founded to aid in the reconstruction of Western Europe.

While the IMF and the IBRD were conceived as and remain separate institutions, many consider the “Bretton Woods sisters” inseparable twins, as evidenced by several factors:

Membership in the IMF is a prerequisite for membership in the World Bank.

Annual meetings of the IMF and the World Bank are held jointly.

The institutions’ governing structures are similar, with some overlap in the memberships of their executive boards.

Both institutions’ lending practices and procedures are similar in form and function.

Structure and Operations of the World Bank Group

Since its inception as the IBRD, the World Bank has expanded to include a total of five specialized member institutions that now comprise the World Bank Group. The World Bank’s membership includes 183 member nations.

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The International Bank for Reconstruction and Development (IBRD)

Originally established to aid in the post-war reconstruction of Europe, the IBRD now provides market-based loans and development assistance to middle-income countries and creditworthy developing nations.

The International Development Association (IDA)

Established in 1960, the IDA focuses its assistance on the poorest developing countries —those that cannot afford to borrow from the IBRD—by providing interest-free loans, technical assistance and policy advice. IDA depends on contributions from its wealthi- er member nations for most of its financial resources.

The International Finance Corporation (IFC)

The IFC was established in 1956 with the goal of promoting growth in the developing world by financing private sector investments, mobilizing capital in international financial markets and providing technical assistance and advice to governments and businesses. In partnership with private investors, the IFC provides both loan and equity finance for business ventures in developing countries.

The Multilateral Investment Guarantee Agency (MIGA)

Created in 1988, MIGA seeks to encourage foreign investment in developing countries by providing guarantees to foreign investors against loss caused by non-commercial risks. MIGA refers to its coverages as “political risk insurance” and claims to protect its investors against such risks as breach of contract, war and civil disturbance and currency transfer restrictions. According to the World Bank, about a quarter of MIGA’s portfolio is in IDA countries.

The International Centre for Settlement of Investment Disputes (ICSID)

Founded in 1966, ICSID provides facilities for the settlement of investment disputes between foreign investors and their host countries through conciliation or arbitration. According to the World Bank, ICSID is an autonomous and impartial international organization in terms of arbitration of disputes. All of ICSID’s 131 members belong to the World Bank. While recourse to ICSID conciliation and arbitration is voluntary, once the parties have consented to arbitration, any ICSID decision is binding.

Organization and Management of the World Bank

While the World Bank claims that its governing structure is democratic, its democracy is not based on the principle of “one country, one vote.” Rather, voting power is weighted

184 Worker Rights and International Financial Institutions according to the amount of money each country puts into the fund. The United States is the largest shareholder with 19.63 percent of votes, more than twice the percentage of Japan, the second most powerful member.

Most Votes in the World Bank Country % of Votes United States 19.63 Japan 9.43 Germany 7.29 United Kingdom 6.99 France 4.76 China 2.55 India 2.55

The organizational leadership structure of the World Bank is as follows:

Board of Governors

Under the World Bank’s Articles of Agreement, all of its powers are vested in a Board of Governors, which is made up of one representative from each member country. A nation’s governor is typically that country’s minister of finance or equivalent, acting ex officio. While certain important decisions are reserved for the Board of Governors, it meets only once a year. Regular and routine operations of the bank are conducted by its executive directors and the president.

Executive Directors

As provided for in the Articles of Agreement, the board consists of 22 executive directors, with alternates. The five countries having the largest number of shares of capital stock (currently the United States, Japan, Germany, France and the United Kingdom) have permanently appointed executive directors while the remaining executive directors are elected by the governors representing the other member countries. While the executive directors owe allegiance to the bank’s Articles of Agreement, they are also subject to the wishes of the governments they represent.

World Bank President

The World Bank president is appointed to a five-year term by the executive directors. The president serves as the Chairman of the Board of Executive Directors and as the chief of the bank’s operating staff. Under the direction of the executive directors, the president also conducts and oversees the day-to-day business of the bank. The current World Bank president, James Wolfensohn (United States), was elected to his second five- year term in 1999.

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Other officers and staff of the World Bank are divided into six regional groups, as follows: East Asia and the Pacific, South Asia, Europe and Central Asia, Middle East and North Africa, Africa, Latin America and the Caribbean. Each regional group is headed by a World Bank vice president. In recent years, the bank has also developed departments to address social issues such as worker rights, environmental safety, gender concerns and health issues.

Development of the IMF’s Mission

As conceived at the 1944 Bretton Woods conference, the primary mission of the IMF was to monitor and manage a system of stable exchange rates in which the value of all of the world’s currencies was based on gold and the U.S. dollar. In 1971, however, the U.S. government abandoned the gold standard, thus undermining the Bretton Woods monetary arrangements by creating a system of “floating” exchange rates by which currency value was determined not by the IMF, but rather by the market or through government intervention.

In response, the IMF shifted its mission from determining currency values to monitoring exchange rate policies and increasing its lending to countries with balance of payment difficulties. While the IMF had always been involved in international financing and lending, such practices had historically taken a back seat to the IMF’s now obsolete currency monitoring mission. Since making international financing its primary mission in the mid-1970s, the IMF has become increasingly aggressive in its lending practices and now rivals the World Bank as an international financial heavyweight.

Structure and Management of the IMF

The IMF’s organizational structure is similar to that of the World Bank, with representatives from member countries comprising various boards and committees that control the operation of the organization. The basic structure is as follows:

Board of Governors

The Board of Governors is the highest decision-making body in the IMF. The board consists of one governor and one alternate governor as appointed by each member country. Governors and alternates are usually ministers of finance or heads of central banks and have the authority to speak for their home country’s government. Board members are not appointed for a fixed term, but rather retain their positions in accordance with the will of the governor and the member country. Specific powers of the Board of Governors include admitting new members and managing the IMF’s financial resources.

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Executive Board/Board of Directors

The Board of Governors delegates the day-to-day decision-making power to the Executive Board, which consists of 24 appointed and elected executive directors. Eight member countries (China, France, Japan, Germany, Russia, Saudi Arabia, the United Kingdom and the United States) are empowered to appoint their own executive directors individually. The other 16 executive directors are appointed by and represent regional groupings of the remaining countries. The Executive Board is responsible for the approval, implementation and surveillance of policy programs for countries receiving financial assistance from the fund.

Interim Committee

The Interim Committee is an advisory body made up of 24 IMF governors. The committee advises and reports to the Board of Governors. The Interim Committee advises the Board of Governors on a wide range of issues including:

managing and monitoring changes in the international monetary system, including the success or failure of the IMF’s adjustment procedures;

proposals by the Executive Board to amend the IMF’s Articles of Agreement; and

sudden disturbances that potentially threaten the international monetary system.

Development Committee

The Development Committee is a joint committee of the World Bank and the IMF. The committee’s makeup is similar to that of the Executive Board. Each IMF member state and group of member states that appoint executive directors are entitled to appoint one delegate to the committee. The committee studies and recommends measures to promote the transfer of financial resources to developing countries, with special attention to the problems of the least developed countries. Although the Development Committee is considered to have less influence than the Interim Committee, issues of central concern to the IMF, such as structural adjustment and debt relief policies, fall under the jurisdiction of the Development Committee.

Managing Director

Every five years, the executive directors select a managing director to serve as chairman of the Executive Board. The managing director participates in the meetings of the Board of Governors, the Interim Committee and the Development Committee. The managing director is also responsible for overseeing the IMF’s 2,700 staff members. Given the managing director’s active role in nearly all facets of the IMF’s organizational structure, the position wields considerable influence on IMF policy, programs and operations.

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Lending Practices of the World Bank and the IMF

The World Bank and the IMF offer similar types of loans to developing countries in need of financial assistance. For example, both institutions offer short-term and emergency assistance as well as medium-term loans. Medium-term loans, often referred to as Structural Adjustment Programs (SAPs), are the most common and controversial forms of financial assistance offered by the World Bank and the IMF.

SAPs are a set of economic policies that the World Bank and the IMF require as conditions of loans offered to developing countries. SAPs often include “austerity measures” such as high interest rates, reduced access to credit, privatization of public enterprises and deregulation of trade and labor policies. According to the World Bank and the IMF, these common SAP policies are economically effective for three primary reasons:

High interest rates and reduced access to credit function to encourage savings and to ensure that money is borrowed only for the most profitable investment projects.

The private sector is more dynamic than the public sector and responds better in a market economy.

Liberalizing trade and labor policies allows developing countries to become more competitive in the global export economy.

Financial assistance from the World Bank or the IMF is subject to “conditionality” with regard to adjustment policies such as those described above. In other words, countries receiving loans must follow the recommendations and conditions included in SAPs as a condition of the receipt and continuation of financial assistance.

International Controversy over IFIs

A growing coalition of trade unions, human rights groups, environmental organizations and other citizens’ groups throughout the world has increasingly challenged the historic role that IFIs like the World Bank and the IMF have played as powerful catalysts and shapers of economic globalization. Such groups argue that IFI policies often hurt workers, damage the environment and generally function to increase poverty while maximiz- ing profits for wealthy corporations and countries. In a speech to the International Labor Organization (ILO) in June 2000, AFL-CIO President John Sweeney said:

The undeniable truth is that the current system of global trade and investment rules has failed to deliver equitable, democratic and sustainable growth. In fact, inequality among and within nations has grown worse. This is both bad politics and bad economics.

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A joint statement by the International Confederation of Free Trade Unions (ICFTU), the Trade Union Advisory Committee to the Organization for Economic and Commercial Development (TUAC) and the International Trade Secretariats (ITSs, now called Global Union Federations, or GUFs), presented to the IMF and the World Bank in September 2001, noted that the policies promoted by IFIs, while “allowing a small minority to accumulate great wealth, had led to increased unemployment, environmental degradation and growing uncertainty for the majority.”1 In July 1999, Mark Weisbrot of the Center for Economic and Policy Research stated that the IMF “causes more harm to working people than NAFTA, the WTO and any mixture of new trade or investment agreements combined.”2

This type of criticism is widespread. A December 1999 report of a Joint Economic Committee of the U.S. Congress concluded from its research that the lending practices of the IMF and the World Bank often foster corruption in developing countries that receive financial assistance. According to Robert Keleher, the chief economist assigned to the committee:

IMF funds currently can be distributed to corrupt public bureaucracies and elites and are often … used to promote those conditions fostering additional corruption. Despite widespread evidence of corruption, IMF lending has been associated with neither safeguards or controls, nor contingencies related to the absence of corruption. This suggests IMF lending may work to foster corruption.3

Nor is the IMF the only international financial institution to garner widespread criticism. Joseph Stiglitz, a former chief economist at the World Bank and winner of the 2001 Nobel Peace Prize for Economics, has become a vocal critic of both IMF and World Bank policy. In an April 2000 article in The New Republic, Stiglitz stated that he was “appalled” by the policies and practices he had witnessed during his four-year employment with the World Bank, voicing his concern over the institution’s insulation from democratic accountability. He noted that the economic remedies offered by IFIs are largely ineffective and, in fact, “often make things worse—turning slowdowns into recessions and recessions into depressions.”4

Recent developments in key IFI-compliant countries seem to bear witness to the charges levied by IFI critics. Argentina and Turkey, two countries that have had extensive IFI programs and have carried out wide-scale privatization and market liberalization, entered into rapid economic decline and financial crisis in late 2000. Now, Argentina faces nationwide bankruptcy. As the ICFTU, TUAC and the GUFs indicated in their September 2001 joint statement, the Argentine government, in accordance with IMF and World Bank advice, had privatized virtually every public service in the country down to the post office and maintained its currency pegged to the U.S. dollar, but these measures had not prevented its economic meltdown in 2001.5 The statement also noted that Chile, which had often been touted by the IFIs as a model of free market policies, recently saw its unemployment rate balloon from 6 percent in 1998 to over 10 percent.

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Many complaints against the World Bank and the IMF have to do with the policies promoted by the institutions’ SAPs, which generally prescribe privatization, trade liberalization and labor market flexibility as the standard formula for addressing the economic problems of developing countries. But critics charge that instead of helping developing countries, structural adjustment has most often functioned to exacerbate poverty, contributed to environmental degradation and helped to create a net outflow of wealth from the developing world to the seven largest and already rich industrial nations, the G-7 nations. And like Stiglitz, they criticize the IFIs’ secretive nature and centralized power, questioning the scope and validity of their jurisdictional mandate. The principal criticisms of IFI policies and operations are briefly reviewed below.

Lack of Transparency

IFIs are often criticized for their lack of “transparency” in their information policies and operations. In fact, a November 1997 article in the Wall Street Journal 6 referred to the IMF as “one of the most secretive institutions this side of the average missile base.” While the IMF appears to be taking steps to improve its information policies, advocacy groups continue to point out significant gaps in its practice. For example, although the IMF now posts loan documents on its web site, many of them lack critical information such as the “Policy Matrix,” which outlines the economic and structural changes a country must implement in order to receive financial assistance.

Transparency complaints are also leveled against the IMF’s Board of Directors and management. Schedules and agendas for meetings of IMF officials are not publicly released, nor are minutes and records of formal votes. Such practices not only make timely citizen input into IMF decisions virtually impossible, but also keep internal debate and the decision-making process hidden from public view. Similar charges have been leveled at the World Bank Group and at the smaller regional IFIs. Critics of these institutions charge that their lack of transparency seriously impedes citizens’ efforts to participate in the formation and implementation of policies that will significantly affect their future.

Power and Jurisdictional Imbalances

Critics of IFIs also often voice concerns about internal and external control and power imbalances. For example, in both the World Bank and the IMF, voting power is determined by the level of a nation’s financial contribution (see table). Therefore, in both institutions, the G-7 nations hold 45 percent of the total vote. At the same time, developing countries have relatively little power within the institutions, which, through the programs and policies they decide to finance, have tremendous impact on their developing economies and societies.

Critics have also questioned the scope of authority of IFIs. Under increasing pressure from

190 Worker Rights and International Financial Institutions advocacy groups, the World Bank and the IMF have recently attempted to dispel concerns regarding their jurisdictional mandates. The IMF’s web site, for example, includes the following commentary:7

Many people view the IMF as an institution of great authority and independence and assume that it decides the best economic policies for its members to pursue, dictates these decisions to the membership, and then makes sure its members conform. Nothing could be further from the truth. Far from being dictated to by the IMF, the membership itself dictates to the IMF the policies it will follow.

Despite such statements, however, critics continue to point to such policies as “conditionality” agreements tied to SAPs as evidence to the contrary. For example, a 2001 World Bank report on Mexico “recommended” that Mexican President Vicente Fox initiate several legislative changes to increase the “flexibility” of Mexican labor as a condition of their assistance. These included the elimination of collective bargaining rights, severance pay and company payments to social security. The report suggested that foreign investors were put off by Mexico’s domestic labor regulations and that without making salaries more flexible, reducing company obligations toward workers and essentially repealing the federal labor law, Mexico would continue to struggle to attract the foreign investment needed to meet its financial obligations to the World Bank. Further, the report claimed that without the “suggested” changes, Mexico’s poor would continue to be “impeded” by pro-labor laws from “obtaining the greatest benefit from their human capital.”8

IFI “recommendations” are more binding than the word suggests. The claims of the World Bank and the IMF that beneficiaries of financial assistance implement recommendations on a voluntary basis do not ring true to developing country governments, a number of which have experienced firsthand the impact of rejecting IFI “recommendations.” For example, in 1998, the IFIs withheld $50 million in loans to Sri Lanka because the government had not properly carried out their “suggested” structural adjustments.9

Environmental Concerns

In addition to the issues of transparency and governance, environmental activists charge that IFI policies and procedures facilitate environmental degradation by ignoring the need for the protection and sustainment of environmental resources in developing countries. Instead, they say, the IFIs encourage countries to extract natural resources at unsustainable rates in order to increase international exports.

Friends of the Earth International (FEI) points to the IMF’s activities in Guyana as a “text- book case of how shortsighted economic policies compromise environmental health and long-term prosperity.”10 In 1988, the development of mining and forestry industries was the

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cornerstone of the IMF’s economic development strategy for Guyana. Despite Guyana’s fragile rainforest ecosystem, however, the IMF provided almost no restrictions on either the amount of resources extracted or the extent of environmental impact the extractions caused. Further, the IMF encouraged Guyana to allow private foreign companies to implement a large percentage of the mining and forestry projects, further weakening any domestic sense of environmental responsibility.

According to an FEI report, the results of the IMF’s Guyana project were disastrous. Mining has transformed local ecosystems into polluted waterways, destroyed forests and ruined soil quality. Timber harvesting projects now span much of the country’s forests, and logging rates far exceed the sustainable rate. Moreover, the IMF’s SAP in Guyana recommended (and implemented) drastic reductions in government funding for the country’s environmental ministry, thus removing many existing institutional blocks to environmental degradation.11 Such cuts to governmental environment agencies are common characteristics of World Bank/IMF SAPs. In fact, according to the World Wildlife Fund’s most recent studies on the impacts of structural adjustment, staffs of natural resource departments were cut and mandates were scaled back to facilitate foreign investment in all but one of the countries studied.12

In response to such criticisms, in 1999, the World Bank established an “Environmental Sector” to develop and implement an “environmental strategy” for the organization. In May 2000, the bank initiated a global “consultation process,” which it contends will help developing countries that rely on World Bank/IMF assistance to promote environmental responsibility. Early returns on the World Bank/IMF initiative, however, have not been encouraging to environmental groups.

In June 2000, just one month after introducing its new environmental initiative, the World Bank approved the $3.7 billion Chad-Cameroon Oil and Pipeline Project. Upon public release of the plans for the project, international non-governmental organizations (NGOs), environmental advocacy groups and even several World Bank/IMF member nations warned against potential negative environmental impacts and suggested that the World Bank either overhaul or discontinue implementation of the project as planned.

Despite these warnings, however, the World Bank has primarily continued to execute the plan according to its original design. Environmental advocacy groups point to the Chad- Cameroon project as evidence that the environmental initiative programs of the World Bank and the IMF do not represent serious commitments to promoting environmental responsibility. Instead, they claim that the project is a continuation of traditional World Bank/IMF policy, that is, “to foster rapid growth in developing countries by boosting exports of primary commodities—at the expense of the environment, human rights and sustainable development at a local level.”13

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Impact of IFI Policies on Workers, Democratization and Economic Development

IFI policies that advocate changes in labor laws and labor policies are usually marketed as attempts to increase “labor market flexibility” through the “deregulation” of economically “constricting” pro-labor legislation. IFIs contend that labor markets should be deregulated because developing economies are “overburdened” with regulations, creating disin- centives for employers to hire more workers.

Increasing labor market flexibility almost always means reducing wages and decreasing worker protections so that companies can hire and fire workers easily or change working conditions and terms with few restrictions. “Despite already soaring debts, impoverished nations are forced into a ruinous competition for costly foreign capital,” says Sweeney. “And to secure that capital, the World Bank and the IMF routinely demand that social programs be dismantled or privatized, workers’ protections rolled back, and markets deregulated.”

Former World Bank chief economist Joseph Stiglitz noted that the supposed benefits of this kind of liberalization included a decrease in the unemployment rate and an increase in job creation (because of lower wages). However, he stated, the evidence in Latin America did not support those conclusions; wage flexibility did not result in lower unemployment or job creation, and labor market flexibility, instead of moving people from lower productivity jobs to high-productivity jobs, too often simply moved them to unemployment.14 A 1995 United Nations Trade and Development Report confirmed this phenomenon, indicating that employers in countries tied to the IMF and the World Bank primarily use any extra “flexibility” in labor laws to shed labor and downsize, rather than to add to productive capacity and create jobs.15

Wage liberalization policies usually “recommend” the abolishment of minimum-wage legislation. Below are several examples of the results:

In Haiti, the IMF pressured the government to exploit low-wage labor by institut- ing a freeze on wages as a condition of its 1995 loan. The government was also told to rewrite the labor code to eliminate a statute mandating increases in the minimum wage when annual inflation exceeded 10 percent.16 By the end of 1997, Haiti’s minimum wage was only $2.40 a day, worth just 19.5 percent of the country’s minimum wage in 1971.

In Mexico, the minimum wage now buys a third of what it did in 1981, before the SAPs of the World Bank and the IMF were implemented.

In Hungary, real wages for workers fell by 24 percent between 1989 and 1996, during a period of structural adjustment as established by the IMF.17

In addition to freezing wages, the IFIs often pressure governments to make the labor market more flexible—through eliminating or weakening existing worker rights, such as the right to

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bargain collectively. This practice further jeopardizes workers’ potential to earn a living wage and offset the adverse impacts of economic restructuring. Below are several examples:

Upon entering into a $253 million agreement with Sri Lanka in May 2001, IMF and World Bank officials recommended in a public report that the Sri Lankan government undertake an “overhaul of key labor legislation,” including the revision of their “procedures for dispute settlement and arbitration.” Early indications suggest that specific changes would include the implementation of a national “hire-and-fire” labor policy, reductions in compensation rights per Sri Lanka’s Employment Termination Act and stringent restrictions on workers’ right to strike.18

A 2001 World Bank report encouraged Mexico to phase out a wide array of worker rights and protections: “the current system of severance payments; collective bargaining and industry-binding contracts; obligatory union memberships; compulsory profit-sharing; restrictions to temporary, fixed-term and apprenticeship contracts; requirements for seniority-based promotions; registration of firm- provided training programs; and liability for subcontractors’ employees.”19

In Honduras, more labor flexibility is being introduced because “collective contracts at large enterprises often act as straitjackets,” according to a World Bank document.20

In Ecuador, the use of temporary contracts is touted in an IMF document as a means to improve labor flexibility.21

In a July 2001 Article IV Consultation report on Chile, the IMF criticized the government’s plan to allow collective negotiations at the inter-company level, noting that this would reduce labor market flexibility.22

IFI critics also note that SAPs often facilitate additional detrimental effects, including not only job losses but also increased expenses in the cost of living. The Sri Lankan government, for example, is preparing to implement a World Bank/IMF-designed “restructuring program” that will cut more than 10,000 public sector jobs in the country’s Ports Authority and state-owned financial institutions. In addition, the government is moving forward on World Bank/IMF recommendations to increase taxation, trim public sector holidays and implement increased government-controlled prices on electricity, water, diesel fuel, bread and other essential goods. While such changes are extremely unpopular with Sri Lankan workers, governmental failure to comply with World Bank/IMF “suggestions” could also be very costly, as noted earlier.

Both the IMF and the World Bank, in response to these criticisms, have launched public relations campaigns in recent years about the need to put a “human face” on globalization. Poverty reduction is said to be a new priority. Both have stated support for the ILO’s core labor standards.

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The problem is that IFIs’ actions at the country level run counter to their statements in a number of ways. First, IFIs tend to praise government actions that directly violate international labor standards. For example, in late 2000, the Argentine government decided to reduce sector-level collective bargaining in favor of company-level collective bargaining, a move that placed the government in direct conflict with international principles of freedom of association. This action would almost certainly result in the elimination of collective agreement protection for workers in small and medium enterprises. Yet the IMF and World Bank publicly endorsed this move.

But perhaps the truest representation of IFI policy came out in a 1999 meeting of World Bank President James Wolfensohn with ICFTU representatives. At this meeting, to the astonishment of those present, Wolfensohn indicated that while the bank respected three of the five core standards (prohibitions on forced labor, child labor and discrimination), it could not respect freedom of association and the right to organize and bargain collectively because it does not “get involved in national politics.”23

Perhaps this is also why the IFIs often have either refused to work with trade unions or simply paid them lip service. During the last decade of political and economic transition in Central and Eastern Europe, the trade unions were among the strongest proponents of privatization, anxious to participate in the process and ensure its success. They asked only that the IFIs call on countries to protect basic worker rights and that the privatization process include safeguards to ensure that it would enhance efficiency rather than facilitate the private theft of public assets.

Unfortunately, the IFIs generally ignored unions’ proposals. The resulting crises have been painfully visible: economies marked by bankrupt enterprises, massive unemployment, the creation of monopolies by a privileged few, rampant corruption, wide-scale human trafficking and hungry pensioners begging for their dinner on the streets—hardly the conditions that promote the development of political stability. Yet despite the fact that the IFIs realize that major mistakes were made in the region, they have not changed their basic approach in other countries. The World Bank still advocates rapid privatization, decentralization and deregulation in other countries, even those without democratic controls.

In fact, critics believe that IFIs are willing to sacrifice democratic development as long as countries remain in compliance with the economic terms they dictate. Although they claim to value democratic development, IFIs are often more content with author- itarian regimes that follow their prescriptions, such as Pakistan’s military regime (which took power with a coup d’état in 1999), than with countries that strive to make the economic reform process more transparent and accountable, such as Bulgaria, which the World Bank criticized in 2001 for requiring that privatization be subject to parliamentary oversight.24

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A companion criticism is that IFIs appear to set policies based more on their economic ideology than on practical realities. The case of Pakistan would seem to bolster this contention. The World Bank’s support for Pakistan, which is planning initiatives for rapid privatization, the deregulation of sectors such as power and telecommunications and the decentralization of government administration, was offered despite “the potential for abuse in privatizing natural monopoly services, especially given the lack of democratic control and the refusal of authorities to negotiate with trade unions affected by the privatization program.” The World Bank’s May 2001 Country Assistance Strategy (CAS) Progress Report admits that Pakistan’s economic reform and devolution plan “could be hastily implemented and captured by powerful interest groups,” but makes no suggestion as to how to avoid such an eventuality.25

Water privatization is another example of a policy that consistently fails to achieve the pro- jected results. Often encouraged by IFIs, in practice the privatization of water services almost always leads to increased prices for water and may preclude low-income groups from gaining access to safe water, but IFI policy remains unchanged.

Another example of a policy that does not appear to be based on practical data is the World Bank’s continued insistence that developing countries privatize their social security systems. The IFIs support this policy because they say it will provide better income for retirees at a lower government cost. However, Dean Baker, co-director of the Center for Economic and Policy Research, told the Multinational Monitor that the World Bank’s support for social security privatization was not even based on the current evidence of what works efficiently for pension systems. Mr. Baker noted that the evidence, including data in the World Bank’s own publications, indicated that “well-run public sector systems, like the Social Security system in the United States, are far more efficient than privatized systems. The administrative costs in privatized systems, such as the ones in England and Chile, are more than 1,500 percent higher than those of the U.S. system.” In fact, the Chilean system, which is considered to be an IFI model, has extremely limited net rates of return due to administrative expenses that absorb almost one-quarter of the contributions—expenses that are several times higher than the public system it replaced. The UNDP has estimated that 40 percent of Chileans who participated in this system will require additional state assistance in order to stay out of poverty, with a disproportionate number of women affected.26

Baker was able to identify only one logical reason for such a policy. The “extra administrative expenses of privatized systems come directly out of the money that retirees would otherwise receive, lowering their retirement benefits by as much as one-third, compared with a well-run public social security system. The administrative expenses … drained out of workers’ savings in a privatized system are the fees and commissions of the financial industry, which explain its interest in promoting privatization in the United States and elsewhere.”27

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Trade unions, human rights advocates, environmental activists and other non-governmental organizations believe that it is vital to secure the participation of workers and civil society in policy discussions and the decision-making process. AFL-CIO President John Sweeney has called on the IMF and the World Bank to “correct the international financial policies that created the worldwide economic crisis in the first place by lowering interest rates, by promoting growth and prosperity rather than stagnation and austerity and by making sure that financial aid to distressed countries ends up in the homes of working families, rather than in the pocketbooks of despots and dictators.”28 The combined ICFTU, TUAC and ITS statement presented to the IMF and World Bank in September 2001 recommended that the IFIs take the following steps, among others, to play an indispensable role in building a more equitable global system:29

Make it a priority to help communities develop and enhance public services that help the poor. Cease the policy of refusing financial support to governments that choose to maintain public control and ownership over vital services to the population, and work with trade unions on programs to improve the efficiency of public enterprises.

Develop comprehensive social safety nets, including retirement pensions, unemployment benefits, child support, maternity and sickness and injury benefits, avoiding the sacrifice of the social safety net to “fiscal discipline.”

Promote high labor standards.

Ensure that the international financial system works to the benefit of developing countries.

Recent developments have suggested small signs of progress in policy development at the World Bank. On Jan. 15, 2002, the bank released Transition: The First Ten Years, a report on the transition economies of Central and Eastern Europe (CEE) and the Commonwealth of Independent States (CIS). Although the report avoids an examination of IMF and Bank policy in the region, it does implicitly recognize many failures of past IFI policies, particularly when it recommends that rapid, unprepared privatization should be avoided and that more attention should be given to using regulatory and institutional frameworks and strengthening social safety nets.30 The ICFTU points out, however, that the report is silent on the fact that the IFIs pushed these countries to carry out rapid privatization, without paying attention to the need for proper regulatory and institutional frameworks.31

It remains to be seen whether such recommendations will translate into policy changes at the country level. Only a few weeks after the release of the World Bank report, the ICFTU noted that even though the World Bank’s own data showed that privatized pension schemes in developing and transition countries had proven to have serious problems, particularly in Latin America, it was still pushing to dismantle comprehensive social security.32

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The same disconnect seems to apply to other policy initiatives as well. The new IMF and World Bank poverty reduction strategy promises to include civil society participation. Poverty Reduction Strategy Papers (PRSPs) are supposed to be developed and implemented by governments jointly with civil society organizations. In some cases, unions were indeed invited to participate in the process from its initial stages (e.g., Georgia, Guinea, Malawi and Zambia) despite the fact that serious disagreements existed between the unions and the government. However, the ICFTU has noted that trade unions were not invited to participate in several PRSP processes, although the unions had repeatedly shown interest and proposed ideas. Moreover, in the countries where unions had little or no participation, labor issues were not adequately addressed in the PRSP, and the IFIs failed to consult with parliaments. This is a disturbing finding, particularly in light of the IFIs’ new commitment to being more inclusive. Unfortunately, recent statements by IFI spokespersons, indicating that civil society involvement in the PRSP process could undermine democratic institutions in those countries,33 suggest that IFIs have not yet truly changed their direction.

Disconnects also appear between the PRSP and its corresponding loan, processed through the Poverty Reduction Support Credit (PRSC). For example, in Uganda, the PRSP called for regulatory frameworks to be established for such public services as health care, education and water to ensure that poor Ugandans would continue to have access to these services as they were restructured. However, the corresponding loan funds the decentralization and privatization plans without requiring the protective regulatory framework.34

Similar policy discrepancies afflict the IMF, which now claims that it will be less intrusive toward governments in areas outside its “core areas of expertise.” However, the ICFTU notes that the IMF does not appear to be backing away from prescriptions concerning state-owned enterprises or social and labor policy, even increasing its recommendations on labor issues in recent months.35 These apply to the familiar prescriptions to lower wages or increase “labor market flexibility.” While the IMF apparently considers these matters to be within its core areas of expertise, it has rejected unions’ request to raise violations of core labor standards with a government, considering these issues to be outside its area of responsibility. This move creates a dangerous situation. If the IMF considers poverty reduction strategies to be outside its scope, and mandates economic policy without taking them into consideration, it could actually systematically undermine national strategies for poverty reduction.36

Regardless of their true intentions, IFI policies have set back democratic development, and thereby also hindered economic development, for many years—often through a virtually ideological commitment to economic theories that have proven to be untrue in hard data. In a recent promising development, however, the World Bank has more openly acknowledged that workers’ right to organize and bargain collectively plays a positive role in global economic development. A 2002 World Bank report on unions and collective bargaining found that in country after country, workers who belong to unions earn

198 Worker Rights and International Financial Institutions higher wages, work fewer hours, receive more training and have longer job tenure than non-unionized workers.37

“Sound industrial relations between employers and employees can lead to a stable economy and prevent settlements that are detrimental to the functioning of the economy,” says the report. “To achieve this potential win-win outcome, developing labor standards needs to go hand in hand with building institutional capacity and trust between workers, employers and the government.”

Although it is too early to be more than cautiously optimistic, the report is encouraging to the growing coalition of international worker rights, human rights and civic advocates whose mission is to hold IFIs accountable for helping workers obtain their fair share in the global economy, to halt the erosion of worker rights and to promote the growth of democracies that acknowledge and cherish the place of workers and their trade unions.

ENDNOTES

1 Statement of the ICFTU, ITS and TUAC to the 2001 Annual Meetings of the IMF and World Bank, Sept. 29-30, 2001, p. 1.

2 Weisbrot, Mark. “The IMF: Labor’s Most Powerful Adversary.” June 1999. Available online at www.cepr.net/IMF/IMFandLabor.htm.

3 Keleher, Robert. “Can IMF Lending Promote Corruption?” Report of the Joint Economic Committee of the United States Congress. December 1999. Available at www.house.gov/jec/imf/corrupt.htm.

4 Stiglitz, Joseph. “What I Learned at the World Economic Crisis.” Available at The New Republic Online, http://www.ceji-iocj.org/English/articles/TNRArticle-JosephStiglitz.htm.

5 Statement of the ICFTU, ITS and TUAC to the 2001 Annual Meetings of the IMF and World Bank, Sept. 29-30, 2001, p. 2.

6 “First, Uncloak the IMF.” Editorial, Wall Street Journal, Nov. 21, 1997, p. A22.

7 From “The IMF at a Glance.” Available at http://www.imf.org/external/np/exr/facts/glance.htm.

8 “World Bank Urges an End to Collective Bargaining Contracts, Labor Benefits in Mexico.” www.glob- alexchange.org/campaigns/mexico/news/msn052201.html.

9 Silva, Vijitha and W.A. Sunil. “Tens of Thousands of Jobs to Go Under IMF-World Bank Restructuring Plans.” Available at www.wsws.org/articles/2001/apr2001/imf-a07.shtml.

10 Welch, Carol. “Arming NGOs With Knowledge: A Guide to the International Monetary Fund.” Friends of the Earth. Available at //www.foe.org/res/pubs/pdf/handbook.pdf.

11 Id, p. 16.

12 Reed, David (Ed.). Structural Adjustment and the Environment. Boulder: Westview Press, 1992. 13 Nguiffo, Samuel and Susanne Breitkopf. “Broken Promises: The Chad/Cameroon Oil and Pipeline Project; Profit at Any Cost?” Friends of the Earth. Available at www.foei.org/publications/mining/promises.pdf.

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14 Weissman, Rob, and Vincent Lloyd, “Against the Workers: How IMF and World Bank Policies Undermine Labor Power and Rights,” Multinational Monitor, Vol. No. 22, #9, Sept. 2001. Available at http://multinationalmonitor.org/mm2001/01september/sep01corp1.html.

15 United Nations Conference on Trade and Development, World Investment Report 1995, Transnational Corporations and Competitiveness, Geneva.

16 McGowan, Lisa. “Democracy Undermined, Economic Justice Denied: Structural Adjustment and the Aid Juggernaut in Haiti.” Development GAP, January 1998, p. 26.

17 Welch, Carol. “Arming NGOs with Knowledge.”

18 “Sri Lanka’s Bitter Pill With IMF Bail Out Package.” Asia Human Rights News. Available online at www.ahrchk.net/news/mainfile.php/ahrnews_200105/1191/.

19 Weissman, Rob, and Vincent Lloyd, “Against the Workers.”

20 Id.

21 Letter of intent of the government of Ecuador, 2000. Available at www.imf.org/external/np/loi/2000/ecu/01/index.htm.

22 International Monetary Fund, Chile: Staff Report for the 2001 Article IV Consultation, June 22, 2001, p.22, ¶49. Available at www.imf.org/external/pubs/ft/scr/2001/cr01116.pdf.

23 Weissman, Rob, and Vincent Lloyd, “Against the Workers.”

24 Statement of the ICFTU, ITS and TUAC to the 2001 Annual Meetings of the IMF and World Bank, Sept. 29-30, 2001, p. 16.

25 Id., p. 4.

26 Id., p. 14.

27 Weissman, Rob, and Vincent Lloyd, “Against the Workers.”

28 John J. Sweeney, 10th Annual Philip Murray Memorial Labor Lecture, April 13, 1999. Available at www.aflcio.org/mediacenter/prsptm/sp04131999.cfm.

29 Statement of the ICFTU, ITS and TUAC to the 2001 Annual Meetings of the IMF and World Bank, Sept. 29-30, 2001, pp. 1-21.

30 Transition: The First Ten Years, World Bank, 2002. Available at http://wbln0018.worldbank.org/eca/eca.nsf, click on Publications.

31 Bakvis, Peter, Comment on WB Report on Ten Years of Transition, International Confederation of Free Trade Unions, Jan. 15, 2002, p. 1.

32 Bakvis, Peter, Comment on WB Conference on Pension Privatization, International Confederation of Free Trade Unions, Feb. 4, 2002.

33 Id., p. 4.

34 Id., p. 6.

35 Id., p. 7.

36 Id., p. 7.

37 Aidt, Toke, and Zafiris Tzannatos, “Unions and Collective Bargaining: Economic Effects in a Global Environment,” World Bank, Washington, D.C., 2002. Available at www1.worldbank.org/publications/ pdfs/15080frontmat.pdf

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Strategies for Promoting Corporate Accountability The strategic campaign is one of the most effective tools U.S. trade unions use to defend their rights against violations by multinational employers. Strategies for Promoting Corporate Accountability

The growing pressure on multinational corporations to respect worker rights in their operations throughout the world has resulted in the development and testing of many new strategies. The use of voluntary corporate codes of conduct, for example, has evolved from multilateral government efforts that began in the 1970s to include codes developed by individuals or groups outside corporations, company-formulated internal codes and multi-stakeholder codes. In recent years, new, creative strategies have emerged as worker rights advocates continue to seek more effective tools for increasing respect for worker rights. These include strategic campaigns conducted by unions, framework agreements designed by Global Union Federations (GUFs), social labeling, local government sanctions, multi-partner coalitions, and investment-related tools such as shareholder initiatives, emerging market investment guidelines and the AFL-CIO Investment Product Review. This chapter provides a brief description of each strategy and reviews its strengths and weaknesses.

Corporate Codes of Conduct

The generation and adoption of corporate codes of conduct, particularly in the apparel sector, has been one of the principal experiments undertaken during the past several decades to encourage multinational companies’ voluntary compliance with worker rights standards. The roots of these codes are in ethical guidelines for multinationals developed in the 1970s, such as the draft United Nations (UN) code, Organization for Economic Cooperation and Development (OECD) guidelines, and an International Labor Organ- ization (ILO) declaration. Those early efforts might be called “first-generation” codes of conduct, inspired by multilateral government action.

A “second generation” of voluntary codes of conduct took shape in the 1980s, developed by prominent individuals or other forces outside the corporation itself. Backers of these external codes asked companies to sign on or “take the pledge” to abide by them. The Global Sullivan Principles of Corporate Responsibility, aimed at ending apartheid in South Africa, was the most prominent of these.

A “third generation” appeared by the early 1990s, this time when individual corporations formulated their own internal codes of conduct. The first apparel code of conduct was adopted in 1991; hundreds of apparel companies and firms in other sectors now have their own codes. U.S. companies adopted such codes for a number of reasons, including pressure from competitors, labor unions, the media, consumer groups, shareholders and other worker rights advocates or, in some cases, from a sense of social responsibility.

Today, a new generation of codes, called “multi-stakeholder” initiatives, is taking shape. In these initiatives, companies, unions, human rights groups and other NGOs, community and development organizations and sometimes governments participate in formulating a code of conduct.

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This section provides a brief review of the evolution of corporate codes of conduct from the 1970s to the present day.

Multilateral Government-Initiated Codes

UN Code

The United Nations formulated, but never formally adopted, a Code of Conduct on Transnational Corporations. It was promoted in the early and mid-1970s at a time when the “Group of 77” developing countries was aggressively confronting the industrialized world. Evidence of abuses by multinational corporations (such as their involvement in the 1973 overthrow of Chilean President Salvador Allende) also spurred consideration of the development of a corporate code of conduct.1

The UN Code spoke generally to human rights and fair treatment of workers, requiring, for example, that “transnational corporations shall respect human rights and fundamental freedoms in the countries in which they operate. In their social and industrial relations, transnational corporations shall not discriminate on the basis of race, colour, sex, language, social, national and ethnic origin or political or other opinion.”

Since the time this code was written, however, “third world” confrontation has largely given way to integration into a liberalized global economy. For most of the developing world, multinational companies are prized investors, not intruders. The UN Code stands as a worthy statement of principle, but having failed to generate change, its adoption will remain just that, and nothing more.2

OECD Code

The OECD established Guidelines for Multinational Enterprises in 1976, also in response to concerns about corporate interference in national political affairs. Updated in 2000, the OECD code recognizes the right to organize and bargain collectively, and it requires employers to provide facilities and information to union representatives so that they may engage in meaningful bargaining.

The OECD code also requires companies to furnish financial and strategic information to unions in order to “obtain a true and fair view” of operations. It bans discrimination in employment, requires advance notice of layoffs and cooperation with unions to mitigate the effects of layoffs and calls on management not to threaten workers with plant closures or layoffs to influence contract negotiations or to interfere with the right to organize.3

Although the OECD avoids making specific findings of misconduct by individual companies under its code, it provides for a complaint procedure that can result in “clarifications” of the guidelines as they apply to particular labor-management disputes. A complicated sys-

204 Strategies for Promoting Corporate Accountability tem uses “contact points” in government agencies that “identify and clarify issues that may arise in the guidelines’ application.” Under OECD guidelines, trade unions must lodge complaints about a corporation’s alleged violations of the guidelines with the “contact point” of their own government, normally a designated individual (not very high-ranking) in an executive agency. The contact point communicates the concern to a counterpart in the country where the alleged violation took place. The latter contact point may then discuss the issue with officials from the offending company to urge corrective action, but there is no means of compelling any correction under OECD procedures.

Complaints that identify a multinational enterprise as an alleged violator of the guidelines are not permitted. Only “matters for consideration” may be raised and “the resulting clar- ification … is not a judgment on the behavior of an enterprise, and thus does not refer to the enterprise by name.”

Although there is no coercive enforcement mechanism to ensure compliance with the guidelines, workers and trade unions have occasionally achieved successful resolution of disputes through recourse to the OECD.4 Most Global Union Federations (GUFs)—international unions organized by sector or occupation, formerly known as international trade secretariats —either are using the guidelines or plan to do so. The GUFs see the guidelines as a potentially useful reference point for other corporate accountability initiatives.5 Unions that attempt to use the OECD guidelines to advance their agenda do so more through public relations or inter-union solidarity measures than through pressure brought to bear by the OECD.

For example, the United Mine Workers of America (UMWA) turned to the OECD following a 1988 labor dispute over layoff and recall protections at Enoxy Coal Company, a West Virginia mine owned by ENI, the Italian state-run energy company. A complex “exchange of views” was held among the union, the employers (both the U.S. subsidiary and ENI) and government “contact points” who obtained the views of their own ministries or departments. Pressure on the Italian government by unions helped resolve the dispute to the UMWA’s satisfaction.

In the 1980s, a U.S. union faced with anti-labor conduct by the local management of a U.S. subsidiary of a Swedish corporation used the OECD contact point system. Through that system, Swedish unions pressured the Swedish government to persuade Swedish parent company managers to convince their U.S. executives to halt their objectionable conduct.

In 1990, the United Food and Commercial Workers International Union (UFCW) used a similar strategy with the OECD in a dispute with the Belgium-based Carrefour supermarket chain. International pressure that included solidarity actions by Belgian unions brought about a settlement in April 1991 whereby the company recognized the union and entered into bargaining.6

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Success in advancing labor rights through the OECD guidelines depends heavily on such idiosyncratic relationships. Swedish unions, for example, represent 90 percent of the labor force there, giving them weight in dealings with Swedish-based multinational firms.7 The OECD system could hardly be transposed to countries where workers who seek to form unions are murdered.

ILO Code

In 1977, the ILO issued a Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy. The ILO code has a broader range than that of the OECD, extending to such issues as job creation, investment in the local economy and subcon- tracting. It also provides for a more detailed complaint procedure. A Standing Committee on Multinational Enterprises is empowered to investigate and make specific findings of code violations by individual companies. Like the OECD code, though, the ILO code has no sanctions to back up its rules; enforcement is more a matter of private consultation or public embarrassment.8 In practice, the ILO code has been eclipsed by its 1998 Declaration on Fundamental Principles and Rights at Work, which defines “core labor standards.”

Privately Drawn Up “Sign-Up” Codes of Conduct

Sullivan Principles

Reverend Leon Sullivan was a prominent Philadelphia clergyman and a member of the board of directors of General Motors Corporation. He devised and promoted his “principles” in connection with the anti-apartheid movement of the 1970s and 1980s, a time when broad public pressure was brought to bear on U.S. multinational corporations operating in an economic and social system based on race discrimination.

Established in 1977, the Sullivan Principles called upon U.S. companies to pledge an end to discriminatory practices against “black and colored South Africans” in the workplace, providing equal opportunity for advancement within the firm and equality in eat- ing and housing facilities provided by the employer. The Sullivan Principles were a voluntary code to which companies would pledge compliance. Participating companies reported their progress toward implementing the principles. Companies that failed to “take the pledge” or to live up to their commitments faced adverse publicity in Rev. Sullivan’s annual reports on compliance.

The Sullivan Principles established an elaborate audit mechanism administered by an independent accounting firm, which graded companies on their degree of compliance with the principles. However, Sullivan himself later declared the principles to be ineffective in overcoming apartheid and joined calls for tough economic sanctions against the racist regime in South Africa.9 The Sullivan Principles were effectively superseded by congressional passage of comprehensive economic sanctions against South Africa.10

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MacBride Principles

The Sullivan Principles remain the most prominent example of a corporate code of conduct drawn up by an outside private party and designed for companies to “take the pledge” to comply with its terms. This approach was replicated in the MacBride Principles, issued in 1984 by the noted Irish statesman Sean MacBride to influence the activities of U.S. companies doing business in Northern Ireland. This code focused on nondiscrimination and affirmative action programs to overcome the deep antipathy between the Protestant majority and the Roman Catholic minority in that British-ruled territory.11

Slepak and Miller Principles

The Slepak Principles and the Miller Principles—the former named for a prominent Soviet dissident, the latter for the U.S. congressman who formulated them—sought to create codes of conduct for multinational companies doing business in the Soviet Union and in China. The Slepak Principles were issued in 1988 by a private foundation. The Miller Principles were contained in a 1991 bill introduced by a U.S. congressman, Rep. John Miller of Washington state. Both spoke principally to forced labor issues and military-related industrial projects. In the wake of the Soviet Union’s dissolution, however, and continuing U.S. corporate interest in investment opportunities in China, neither attracted much support.12

Global Sullivan Principles of Social Responsibility

On Nov. 2, 1999, Rev. Leon Sullivan, creator of the original Sullivan Principles, together with UN Secretary-General Kofi Annan, launched the Global Sullivan Principles of Social Responsibility. The global principles emphasize the social responsibilities of corporations. Secretary-General Annan noted that the principles could help the UN and the international business community to implement the Global Compact, give global markets more of a human face and bring to life the values of the UN Charter.

Rev. Sullivan created the principles at the request of world and business leaders, with input from various multinational companies and business associations. The objectives of the principles are:13

to support economic, social, and political justice by companies where they do business;

to support human rights and to encourage equal opportunity at all levels of employment, including racial and gender diversity on decision-making committees and boards;

to train and advance disadvantaged workers for technical, supervisory and management opportunities; and

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to assist with greater tolerance and understanding among peoples thereby helping to improve the quality of life for communities, workers and children with dignity and equality.

The principles follow:14

As a company which endorses the Global Sullivan Principles, we will respect the law and as a responsible member of society, we will apply these principles with integrity consistent with the legitimate role of business. We will develop and implement company policies, procedures, training and internal reporting structures to ensure commitment to these principles throughout our organization. We believe the application of these principles will achieve greater tolerance and better understanding among people and advance the culture of peace.

Accordingly, we will:

express our support for universal human rights and, particularly, those of our employees, the communities within which we operate and parties with whom we do business;

promote equal opportunity for our employees at all levels of the company with respect to issues such as color, race, gender, age, ethnicity or religious beliefs, and operate without unacceptable worker treatment such as the exploitation of children, physical punishment, female abuse, involuntary servitude or other forms of abuse;

respect our employees’ voluntary freedom of association;

compensate our employees to enable them to meet at least their basic needs and provide the opportunity to improve their skill and capability in order to raise their social and economic opportunities;

provide a safe and healthy workplace; protect human health and the environment; and promote sustainable development;

promote fair competition including respect for intellectual and other property rights and not offer, pay or accept bribes;

work with governments and communities in which we do business to improve the quality of life in those communities—their educational, cultural, economic and social well-being—and seek to provide training and opportunities for workers from disadvantaged backgrounds;

and promote the application of these principles by those with whom we do business.

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Since the principles were issued, a small number of United States and European companies have endorsed them. Each endorsing company commits to the implementation of policies, procedures, training and reporting activities that lead toward the realization of the principles. Endorsing companies are also asked to participate in an annual reporting process to document their experience in enhancing social responsibility.

GUFs have been critical of the principles because they have no effective enforcement system, a flaw shared by most other codes. The principles are also flawed in their failure to fully incorporate ILO core labor standards. For example, while freedom of association is included, the right to organize and bargain collectively, another core labor standard, is not.

Maquiladora Code

Concerns about pollution, unsafe working conditions and poverty-level wages led to the issuance of a code of conduct for U.S. companies with operations in the maquiladora factory zone along the border with Mexico. Promoted by the AFL-CIO and a coalition of religious and environmental groups, the Maquiladora Standards of Conduct code appealed to U.S. corporations to promote a safe environment, safe workplaces and an adequate standard of living for workers.

The Maquiladora Code addressed hazardous waste disposal, chemical leaks and transportation of toxic materials. It required disclosure to workers and communities on the use and risks of chemicals and other hazardous materials and called for the establishment of workplace health and safety committees, the protection of the right to organize and bargain, a ban on discrimination (including sexual harassment), a higher minimum wage and limits on working hours. Finally, the code sought to abolish barracks-style living quarters for workers and to establish a trust fund to improve housing, health care, sanitary services and other infrastructure.15 In practice, however, only one corporation, Asarco, reportedly committed itself to abide by the Maquiladora Standards of Conduct.16

ICFTU/ITS Basic Code of Conduct Covering Labor Practices

The International Confederation of Free Trade Unions (ICFTU) and International Trade Secretariats (ITSs, now called Global Union Federations) worked together in an effort to limit the worst forms of worker rights abuse and exploitation that increasing global competition has generated. After consultingly extensively with trade unions and other interested parties, the ICFTU/ITS Working Party on Multinational Companies developed the text for a code of conduct covering labor practices. In December 1997 the ICFTU Executive Board adopted the code.

The ICFTU/ITS code asserts companies’ responsibility for the labor practices of their contractors, sub-contractors, principal suppliers and licensees (or franchise holders). It applies to both product manufacturers and service providers. It is aimed at helping

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unions in their negotiations with companies and also in their work with NGOs on campaigns involving codes of conduct. In addition, it is intended to serve as a benchmark for the evaluation of any unilateral codes of labor practice.

The code’s basic purpose is to promote the preeminence of international labor standards and the inclusion of worker rights in codes of conduct that address labor practices. The code encourages the use of consistent language in order to promote the development of an international framework for worker rights. It cites a minimum list of standards but stresses that the list is not intended to limit provisions that unions can negotiate through collective bargaining agreements.

The code states that workers must be provided with living wages and decent working conditions and that companies must observe the international labor standards established by ILO Conventions No. 29, No. 87, No. 98, No. 100, No. 105, No. 111, No. 135 and No. 138. Specifically, the code obliges a company and its contractors, subcontractors, principal suppliers and licensees (or franchise holders) who are involved in the production and/or distribution of products or services for that company to ensure the following conditions:

Employment is freely chosen (no forced, bonded or involuntary prison labor).

There is no discrimination in employment.

Child labor is not used.

Freedom of association and the right to collective bargaining are respected.

Living wages are paid.

Hours of work are not excessive.

Working conditions are decent.

The employment relationship is established (employers will not use contractual or apprenticeship arrangements to avoid the provision of legal benefits, social security, etc.).

Further, the code requires contractors, subcontractors, principal suppliers and licensees to assist in implementing and monitoring the code by providing the company with relevant information on their operations, maintaining employee records, permitting inspections of operations and employee records, informing workers both orally and in writing about code provisions and refraining from disciplinary action, dismissal or discrimination against any worker for providing information related to the observance of the code. If contractors, subcontractors, principal suppliers and licensees are found to be in breach of one or more terms, the code removes their right to produce goods, organize production or provide services for the company.

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Internal Corporate Codes of Conduct

Broad codes of conduct sponsored by groups that sought a declaration of acceptance and compliance by multinational corporations did not fare well in obtaining company adher- ents. Of the examples just noted, only the Sullivan Principles attracted support from U.S. companies, and they were concerned mostly with potential adverse reaction in their domestic consumer market. Even then, they came under fire from critics who contended that signatories to the Sullivan Principles were using them “as camouflage—as a justification for operating in (and profiting from) a fundamentally corrupt and odious system.”17

Many companies attempted a pro-active route to outpace the curve of human rights criticism and began to issue their own, self-initiated codes of conduct for human and worker rights in their international subsidiaries and suppliers. Two prominent U.S.-based firms were in the forefront of this movement for internal, corporate-sponsored codes of conduct: Levi Strauss & Company and the Reebok Corporation.

Levi Strauss & Company: Terms of Engagement and Guidelines

In 1991, Levi Strauss senior officials appointed a management task force called the Sourcing Guidelines Working Group (SGWG) to develop its Global Sourcing Guidelines. The 14-member group was drawn from eight divisions within the company to reflect its broad internal interests. It was charged with taking into account the concerns of company “stakeholders,” including employees, customers and the communities in which the company operated.

The SGWG reviewed the UN’s Universal Declaration of Human Rights and other international human rights instruments in formulating its recommended country and supplier guidelines. In February 1992 the SGWG presented its guidelines to the Executive Management Committee for approval. The guidelines were approved in March 1992, with a certain eagerness, since their adoption followed hard on an embarrassing media exposé of abusive labor conditions in Saipan, a U.S. protectorate, in factories that supplied Levi Strauss, Sears and other U.S. retailers.

Titled Business Partner Terms of Engagement and Guidelines for Country Selection, the Levi Strauss code of conduct is a two-part instrument. The “terms of engagement” cover environmental requirements, ethical standards, health and safety, legal requirements and employment practices to the extent that they are “issues that are substantially con- trollable by our individual business partners.”

The “guidelines for country selection” speak to “issues which we believe are beyond the ability of the individual business partner to control.” They address issues of brand image, health and safety, human rights, legal requirements and political or social stability, to the extent that each of them turns on policies of the government in countries

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where Levi Strauss maintains operations or contracts with suppliers, rather than on corporate policies.

The “employment practices” section of the terms of engagement is the only one of the terms or guidelines that is broken down into greater detail. It addresses six specific types of employment conditions: wages and benefits, working hours, child labor, prison labor/forced labor, discrimination and disciplinary practices (namely, “corporal punishment or other forms of mental or physical coercion”).

The company created an elaborate monitoring and enforcement system that began with a detailed questionnaire on practices in foreign supplier plants. It also provided for sur- prise visits by auditors, intense review by company officials charged with enforcing the code and the termination of violators’ contracts. Levi Strauss reportedly canceled supplier contracts in the Philippines, Honduras and other countries—more than 30 suppliers worldwide—for violating the code and forced reform in employment practices in more than 100 others.19 The company pulled out of China in 1993 but recently returned.

Reebok’s Worker Rights Code

The Reebok code addressed seven defined areas of worker rights: nondiscrimination, working hours/overtime, forced or compulsory labor, fair wages, child labor, freedom of association and a safe and healthy work environment. But compared with that of Levi Strauss, Reebok’s implementation system was a less defined mechanism for auditing, evaluating and enforcing the terms of its code. There was no evidence of canceled contracts or country pullouts such as Levis Strauss demonstrated.

The New Generation of External “Stakeholder” Codes

The internally generated codes of conduct of both Levi Strauss and Reebok, along with others, have essentially been superseded by “multi-stakeholder” codes that arose in the late 1990s when the internal contradictions of company-sponsored codes began to make them untenable. There was simply no credibility in corporations’ efforts to police themselves. As a result, workers, unions, human rights groups, consumer organizations and other elements of civil society began to demand codes with monitoring and enforcement systems independent of corporate control.

Multi-stakeholder codes of conduct on worker rights have created various models for monitoring, for the certification of supplier factories and for enforcement. Under some, monitoring and certification are carried out by northern “social auditing” firms. In others, southern non-governmental organizations (NGOs) are involved in code verification.

As codes of conduct, monitoring and certification systems are being put into practice, labor, NGO, student and religious organizations in the north and south are demanding a greater

212 Strategies for Promoting Corporate Accountability role in monitoring, increased corporate disclosure of information and more transparent mechanisms for workers and worker rights advocates to lodge complaints and challenge auditors’ reports. Several important stakeholder code initiatives have taken shape in recent years.

Ethical Trading Initiative (ETI)

The UK-based Ethical Trading Initiative (ETI) attracts companies, unions and NGOs in a campaign to identify and promote good practices in codes of conduct, including monitoring and independent verification. The ETI developed a multi-sectoral Base Code that was formulated from ILO standards and that includes provisions for a living wage, freedom of association and security of employment. In 2001, ETI members were engaged in four pilot projects, testing different models of code verification.20

Apparel Industry Partnership (AIP)/Fair Labor Association (FLA)

In 1996, the Clinton administration, with Labor Secretary Robert Reich in a prominent lead role, called together apparel firms, unions and human rights, religious and consumer groups to form the Apparel Industry Partnership (AIP) with the goal of creating a viable code of conduct for the industry. In November 1998, the AIP announced agreement on a multi-company code of conduct, monitoring and certification system. The Fair Labor Association (FLA) accredits external monitors and certifies companies that meet its standards. However, labor and religious organizations withdrew from the FLA, charging that the standards were too low and the monitoring process was not sufficiently transparent. Some human rights organizations remained involved in the FLA, hoping to advance a worker rights agenda.21

Clean Clothes Campaign (CCC)/Fair Wear Foundation (FWF)

The Clean Clothes Campaign (CCC) was successful in bringing together Dutch NGOs, labor centrals and associations of apparel retailers and manufacturers in a five-year process of negotiations for an industry-wide code of conduct with provisions for independent monitoring and certification.

Unions, NGOs, retailers and manufacturers are represented on the Fair Wear Charter Foundation, which hires external monitors, evaluates their reports and certifies apparel companies and their supplier factories. Agreement has been reached on a voluntary code that includes strong provisions on freedom of association, hours of work and a living wage.22

Social Accountability 8000 (SA8000)

Social Accountability 8000 (SA8000) is an initiative of the U.S.-based Social Accountability International (SAI, formerly CEPAA, the Council on Economic Priorities Accreditation Agency), which calls SA8000 “a comprehensive global verification standard for auditing

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and certifying corporate responsibility.” SA8000’s objective is to bring consistency to labor rights standards in various codes and in procedures for “social auditing.” SA8000 standards are based on ILO and UN conventions and on the Universal Declaration of Human Rights.

SAI trains and accredits social auditing firms and individual auditors, who are then hired by companies to certify their compliance and/or their suppliers’ compliance with SA8000 standards. SAI-trained social auditors are already certifying supplier factories in China and other countries where worker rights abuses are common.23

SA8000 standards and SAI operations are controversial in the worker rights community. For example, although SAI claims to base its standards on ILO standards, it has certified factories in China, where the most basic right of freedom of association is blatantly violated in both law and practice. SAI claims to verify “parallel means of representation” in countries where freedom of association is restricted. It recently de-certified more than 20 factories in China after Hong Kong-based NGOs reported conditions that violated basic worker rights.

United Students Against Sweatshops (USAS)

United Students Against Sweatshops (USAS) is an international student movement of campuses and individual students that seeks to eliminate sweatshop conditions and secure worker rights for workers who produce goods purchased by universities. The movement began in the mid-1990s as a groundswell of students on several campuses, including the University of North Carolina-Chapel Hill, the University of Michigan, the University of California-Irvine and the University of Wisconsin-Madison. Students were searching for a tangible way in which they could help stop the global increase in sweatshop conditions. The “Sweat-Free Campus Campaign” rose from their initial activism. Their idea was that U.S. universities and colleges should not be complicit in the sweatshop system and should not profit from the exploitation of workers who make clothes bearing their university logo.

The movement gained momentum in 1997, when interns at the Union of Needletrades, Industrial and Textile Employees (UNITE) designed the first organizing manual for the campaign and spread the idea to campus labor activists around the country. In July 1998, student activists from more than 30 schools met in New York for an anti-sweatshop conference, where they formed USAS. The purpose of USAS was to facilitate coordination and communication between individual campus campaigns and to coordinate student participation and action around the intercollegiate debate over codes of conduct and monitoring systems.

As students responded to the call for social accountability from college and university administrations, sit-ins and other protests swept across college campuses across the United States, and universities began to listen. In just one year, USAS spread to more than 100 campuses over the United States and Canada and raised awareness about the

214 Strategies for Promoting Corporate Accountability issue to unprecedented levels. In 1999, in response to growing student pressure, the Collegiate Licensing Company, an intermediary between universities and manufacturers, proposed a code of conduct for the 150 colleges and universities it represented. However, the code lacked provisions for full public disclosure, a living wage and women’s rights, and student activists rejected it. Students at Duke University staged a sit-in and won a commitment from Duke to require full public disclosure of its licensees. Students at Georgetown University and the University of Wisconsin joined the new wave of sit-ins and won a commitment for disclosure, for a study on a living wage and for a clause on women’s rights.

Over a relatively short period of time, USAS became a powerful grassroots movement that succeeded in winning the commitment of many universities to ensure that clothing bearing their logo was not made under sweatshop conditions. In July 1999, more than 200 students met for the second Sweat-Free Campus Conference. At this conference, students set up a governing body for USAS and decided to maintain their focus on full public disclosure. They also decided to work toward the creation of an alternative to the FLA, which had lost credibility among many labor activists because of its failure to establish an independent monitoring system. As a result, the Worker Rights Consortium (WRC), which is discussed below, was established.

USAS members at more than 200 campuses require that:

the clothing bearing their schools’ logos be made under decent working conditions;

universities adopt codes of conduct that protect worker rights;

universities provide full public disclosure of company information; and

universities utilize independent verification systems to ensure that their apparel is not made under sweatshop conditions.

At the USAS national conference held in August 2000, the Alliance Building Committee was formed. Its purpose is to form alliances with others to fight racism, sexism, homopho- bia, class consciousness and other forms of oppression. An International Solidarity Committee was also formed to establish long-term international relationships with workers and their efforts to organize.24

Worker Rights Consortium (WRC)

The WRC is a non-profit organization created by college and university administrations, students and worker rights experts. It was established to help enforce the codes of conduct that colleges and universities have adopted to ensure that goods bearing their name are made in factories where worker rights are respected. The WRC’s overall mission is to win greater respect for worker rights and real improvements in working conditions.

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The WRC works with worker rights experts in the United States and around the world to investigate factory conditions, reporting its findings to member organizations and the general public. When violations are discovered, the WRC works with colleges and universities, U.S.-based retail companies and the affected local workers and organizations to correct the problem and improve working conditions. The WRC also works with local NGOs to educate workers at collegiate apparel factories about their rights. Its goal is to establish a communications process for workers to further facilitate the reporting of working conditions.

More than 100 colleges and universities are affiliated with the WRC, which is governed by a 15-member board. Each affiliate must adopt a manufacturing code of conduct and work toward incorporating the code into its contracts with licensees. Affiliated universities must also provide the WRC with a list of names and locations of all factories involved in the production of goods that bear the university logo. To qualify for WRC affiliation, company codes of conduct must provide basic protection for workers on the following issues: freedom of association, workplace safety and health, women’s rights, child labor, forced labor, hours of work and overtime compensation, wages, harassment and abuse in the workplace and nondiscrimination and compliance with local law.

The governing board is composed of five representatives of university administrations elected by the University Caucus, five USAS representatives, and five representatives of the WRC Advisory Council. Members are elected by each group for fixed terms. Linda Chavez- Thompson, executive vice-president of the AFL-CIO, is a board member.

The elected members of the Advisory Council are U.S. and international experts on worker rights issues and representatives of domestic and internationalworker rights NGOs. The council includes representatives from the AFL-CIO and Asian, Nicaraguan and South African trade unions.

The WRC seeks to build constructive relationships with licensees as it monitors their activities. However, the consortium has no industry representatives on its governing board because it believes that organizations that remain independent from the apparel industry can play an important role in the worker rights monitoring process.25

The WRC initiates factory investigations in response to worker complaints or on the basis of reliable local NGO reports of problems. The WRC may also initiate an investigation when it needs more information on a plant that is a significant source of apparel production. WRC reports of factory investigations are made public.

WRC’s investigation and reporting of allegations of worker rights violations in the Kukdong (now Mexmode) apparel factory in Atlixco, Mexico, has provided the clearest case so far of a code mechanism’s decisive role in providing workers’ freedom of association. The Kukdong factory produces apparel for Nike under licensing arrangements

216 Strategies for Promoting Corporate Accountability between Nike and several WRC-affiliated universities. Kukdong also produces apparel for Reebok.

In January 2001, following the dismissal of five workers in retaliation for union activity, several Kukdong workers filed complaints with the WRC. Hundreds of workers who had participated in a work stoppage to protest the dismissals and other violations of worker rights had also been fired. Other worker rights violations reported against Kukdong included the employment of child workers, physical assault and verbal abuse of workers, denial of legal benefits (including maternity and sick leave), minimum wage violations, serious safety and health violations, the use of violence by riot police to break up the work stoppage and the imposition of a collective bargaining agreement without the workers’ consent. The WRC’s initial investigation found these allegations credible, and its preliminary report called for the reinstatement of the illegally fired workers.

Following the publication of this report, Nike and Reebok representatives intervened at Kukdong, urging the reinstatement of workers and other remedial actions. Kukdong management subsequently took major steps toward reinstating the fired workers and made improvements in other problem areas identified in the report. Further, Kukdong provided more of the conditions that would facilitate the holding of a free and fair election to allow workers to choose between the inactive incumbent union and an independent union.

WRC’s follow-up report, issued on June 20, 2001, noted that the company needed to take further action. Worker rights violations had not been fully addressed because of obstacles created by the incumbent union, and other issues also hindered progress. For example, Kukdong had refused to reinstate one of the fired union leaders and many other fired workers who had sought reinstatement. Some workers had been reinstated but also had been subjected to penalties, preconditions or discriminatory treatment. Factory managers still abused workers verbally and continued to withhold benefits required under Mexican law. The report noted that Kukdong also needed to take further remedial steps to provide adequate conditions in which a free and fair election could take place.

However, WRC applauded the progress that had been made and the role that colleges and universities had played in the achievement of that progress. Two-thirds of the workers who had participated in the stoppage and two of the union leaders who had been fired had been reinstated. Kukdong raised some wages, although not all eligible workers were brought to the legally mandated professional minimum wage. Physical abuse of workers was discontinued as a means of discipline. Health and safety conditions improved. Kukdong no longer employed underage workers. Ultimately, as a result of WRC’s intervention, factory workers succeeded in forming the first independent union in the Mexican apparel maquila sector.

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Worldwide Responsible Apparel Production (WRAP)

The Worldwide Responsible Apparel Production (WRAP) is a factory certification program launched in January 2000 by the American Apparel Manufacturers Association (AAMA). Its appeal for U.S. apparel manufacturers is its lower standards (in relation to those of other initiatives listed here) and the fact that responsibility for seeking and paying for certification and achieving compliance lies entirely with local factory owners rather than with North American companies that contract out the manufacture of their products. Among worker rights advocates, this code is not seen as a serious effort.26

Ethical Trading Action Group (ETAG)

From May 1999 to March 2000, Canada’s Ethical Trading Action Group (ETAG) was involved in negotiations with the Retail Council of Canada (RCC) and the apparel and shoe manufacturers’ associations for a Canadian-based code of labor practice. However, ETAG activists reported that negotiations broke down over the unwillingness of the industry associations, especially the Retail Council, to accept ILO core labor standards, in particular, the right of workers to organize and bargain collectively, as the basis for a Canadian code.27

Developing Country (Southern) Code Initiatives

Most stakeholder code initiatives took shape in the United States and Europe. However, there are also examples of initiatives by southern groups to pressure manufacturers’ associations and sometimes ministries of labor to accept and endorse voluntary codes of conduct for firms operating on a contract basis for North American or European retailers.

One example of southern code initiatives is the Code of Ethics developed by the Central American Network of Women in Solidarity with Maquila Workers. The code emphasizes issues specific to women maquila workers, including discrimination, social security benefits, physical, psychological and sexual abuses, excessive overtime and the rights of pregnant workers.

Unions have criticized the code because it does not include freedom of association and the right to organize and bargain collectively. However, in the one instance to date in which a maquila owners’ association and a labor ministry have endorsed the code, the network has insisted that freedom of association be included.

A second example of an industry-wide code of conduct in which southern groups have played a leadership role is the Charter on the Safe Production of Toys. In this case, the model industry-wide code of conduct, which focuses on health and safety issues, was developed by the Hong Kong-based Coalition for the Safe Production of Toys after two major fires occurred in toy factories owned by Hong Kong interests.

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Several toy industry associations, including the British, European and international toy associations and the Hong Kong Toys Council, have responded to the charter and the international campaign around it by developing their own codes of conduct. The industry codes tend to focus on forced and child labor and adherence to local health and safety legislation, but they generally fail to recognize toy workers’ right to organize and bargain collectively or the need for independent verification and enforcement mechanisms.

In 1996, the Korean Economic Organization Council (OIC) adopted a code of conduct for Korean overseas investment companies. The council is composed of the National Businessmen Association, the Korea Commercial and Industrial Office, the Korea Trade Association, the Center for the Medium/Small-Sized Enterprises Cooperative and the Korea Employers’ Federation.

The council’s statement recognizes that a number of Korean companies abroad had faced industrial relations conflicts “due to their lack of understanding about the social conditions of the host countries.” Its principles respect “worker rights guaranteed by the domestic legislation of the host country” and note that the OIC “should observe the local labor laws and the norms of industrial relations” and “contribute to the economic and social development of the host country.” The impact of this code remains to be seen.28

Government Initiatives

A review of U.S. government initiatives illustrates the interplay of private and public initiatives on codes of conduct. During President Bill Clinton’s first term, he announced a commitment to work with the business community to develop a voluntary code of business principles relating to corporate conduct abroad. The purpose of the code was for U.S. business to advance the openness of societies and respect for individual rights, the promotion of free markets and prosperity, environmental protection and the setting of high standards for business practices generally. In consultation with business and labor leaders and NGOs, the following model principles were developed in 1994:

Recognizing the positive role of U.S. business in upholding and promoting adherence to universal standards of human rights, the administration encourages all businesses to adopt and implement voluntary codes of conduct for doing business around the world that cover at least the following areas: 1. Provision of a safe and healthy workplace;

2. Fair employment practices, including avoidance of child and forced labor and avoidance of discrimination based on race, gender, national origin or religious beliefs; and respect for the right of association and the right to organize and bargain collectively;

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3. Responsible environmental protection and environmental practices; 4. Compliance with U.S. and local laws promoting good business practices, including laws prohibiting illicit payments and ensuring fair competition; 5. Maintenance, through leadership of all levels, of a corporate culture that respects free expression consistent with legitimate business concerns and does not condone political coercion in the workplace; that encourages good corporate citizenship and makes a positive contribution to the communities in which the company operates; and where ethical conduct is recognized, valued and exemplified by all employees.

In adopting voluntary codes of conduct that reflect these principles, U.S. companies should serve as models, encouraging similar behavior by their partners, suppliers and subcontractors. Adoption of codes of conduct reflecting these principles is voluntary. Companies are encouraged to develop their own codes of conduct appropriate to their particular circumstances. Many companies already apply statements or codes that incorporate these principles. Companies should find appropriate means to inform their shareholders and the public of actions undertaken in connection with these principles. Nothing in the principles is intended to require a company to act in violation of a host country or U.S. law. This statement of principles is not intended for legislation.

While it attracted media attention at the time, nothing substantive came of the Clinton administration’s statement of principles. Observers have no expectation that the Bush administration will generate any new initiatives in this area.

Global Reporting Initiative (GRI)

In 1989, the Coalition for Environmentally Responsible Economies (CERES) was established in an effort to promote transparency in corporate social behavior. The coalition united 15 U.S. environmental groups with “socially responsible” investors and public pension funds. This voluntary partnership subscribed to a code of conduct known as the CERES Principles, pledging support for environmental sustainability.29

In 1997, in partnership with the UN Environment Programme, CERES convened the Global Reporting Initiative (GRI),30 an effort to promote global adherence to the CERES principles or similar declarations through the creation of global guidelines for reporting on the economic, environmental and social performance of corporations and eventually for any business, governmental organization or NGO.

GRI is committed to strengthening corporate accountability in the 21st century. Its aim is to develop an internationally accepted framework for sustainability reporting for businesses and other organizations.

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GRI incorporated the participation of business, accountancy, investment, environmental, human rights and labor organizations from around the world in designing its “Sustainability Reporting Guidelines.” These guidelines, first released in March 1999 and suceeded in September 2002, include the following three major areas: economic (wages and benefits, job creation, labor productivity, research, development and training); environmental (impacts of processes, products, human health and services on air, water, land and biodiversity); and social (workplace health and safety, employee retention, worker rights and wages and working conditions).

While the guidelines promote a common reporting language, they are far from a universal standard for monitoring performance.31 They emphasize a voluntary corporate approach to social responsibility.

The first board of directors, drawn from a diverse, international group of stakeholders, was appointed on Jan. 24, 2002. Labor is represented on the new board by Barbara Shailor, AFL-CIO international affairs director, and Anita Normark, general secretary of the International Federation of Building and Wood Workers (IFBWW).

Mandatory Sustainability Reporting for French Companies

In 2001, the French Parliament passed a law updating its legal framework for companies. The new law includes an amendment that requires large French corporations to report on the social and environmental impact of their activities. The reports on social impact cover human resources, community and civil society standards and labor standards. Reports on labor standards will have to show how French companies’ international subsidiaries respect ILO core labor standards and how the companies are promoting these standards with their international subcontractors. The law does not provide for any sanctions or penalties for non-compliance. The sustainability reports were included in corporate annual reports beginning in 2003.

Impact of Corporate Codes of Conduct and Trade Union/NGO Cooperation

The adoption of corporate codes of conduct represents a positive step, but without independent enforcement mechanisms (review, dispute and monitoring systems) the codes are destined for inconsistent effectiveness. Companies may elect not to apply them. Other inconsistencies may make it difficult to evaluate a company’s track record. For example, among the existing codes, the labor principles addressed are not standardized but vary from code to code. Some companies set their own standard, others may refer to national laws of the host country, others may refer to international standards (ILO Conventions), while still others may use a combination of all of these. In addition, the degree of transparency, the extent to which suppliers and workers are made aware of the existence of the codes, varies widely. Most codes do not include detailed provisions for monitoring, and most have not established reliable monitoring systems. Enforcement practices also vary widely.

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The following examples illustrate the uneven results that can come from a lack of harmonized codes and the failure to enforce them. Both Levi Strauss and Gap codes of conduct include language on freedom of association. Both companies have a record of attempting to ensure compliance, although Levi Strauss has a stronger reputation for protecting worker rights. On the other hand, Gap contractors have been found in violation of worker rights (in Honduras, for example), but the company, after some publicity, did take strong action against the violators.

However, other companies provide examples of how ineffective codes can be when they do not address primary principles. Phillips-Van Heusen’s (PVH) code, for example, details guidelines for its vendors on health and safety, child labor and the environment—but not on freedom of association. It is not surprising, then, that the company has a history of violating worker rights; for example, in Guatemala, workers in a Van Heusen plant were harassed when they tried to form a union. Intervention by trade union and human rights advocates eventually led to recognition of a union at PVH’s Guatemala plant, but the company, citing overcapacity, later closed the facility, sparking a new round of protest.

Sara Lee Knit Products is another example of a company with an “incomplete” code; it is also one of the most blatantly anti-democratic codes. The code includes principles concerning the environment, wages, hours, safety and employee communications. However, under the heading “Labor Unions,” Sara Lee actually states that it “believes in a union-free environment” and encourages management to actively discourage union representation where the law allows! In 1990, workers at Sara Lee in the Dominican Republic attempted to form a union, but their efforts failed. This last example clearly illustrates that even outside enforcement concerns, corporate codes of conduct cannot provide effective protection for worker rights if the principles do not embody internationally recognized standards.

Advocates for corporate codes of conduct on worker rights and labor standards argue that they can harness the power of informed consumers to halt worker rights abuses in the marketplace. Many supporters see such codes as a civil society alternative for halting worker rights violations, in contrast to government regulation or trade union organizing and collective bargaining.

Advocates also argue that governments cannot possibly inspect every workplace and catch every lawbreaker. In addition, trade unions face a worldwide crisis of organizing and bargaining. Codes of conduct offer a new option through private sector self-regulation using civil society vigilance.

But the substance behind the rhetoric on corporate codes of conduct is open to question. Can self-regulation by multinational companies or private policing, even by the best-inten- tioned NGOs, really protect worker rights and raise labor standards in a sustained way? Are consumer awareness and potential reaction enough to punish worker rights abusers or

222 Strategies for Promoting Corporate Accountability reward those who respect worker rights? Or will corporate codes of conduct actually undermine effective labor law enforcement by governmental authorities and undermine workers’ representation by trade unions of their own choosing?

Trade unions and NGOs share a common desire to halt abusive behavior by multinational companies toward workers along with a broader goal of checking corporate power in the global economy. Their alliance is strongest when unions and NGOs target the most virulent forms of exploitation, such as child labor, gender discrimination, unsafe conditions and the firing, jailing and killing of union organizers in factories in developing countries. A global supply chain of subsidiaries, contractors, subcontractors and sub- subcontractors has taken shape in export processing zones around the world. Employers in these enclaves exploit cheap, abundant, usually female labor, in what is often called a global assembly line.

Many of these factories produce goods for household-name companies whose image, often conveyed by a logo, a slogan or a famous spokesperson, is the company’s strongest marketing tool. But the image can also be an Achilles’ heel if consumers are made aware of abusive practices in factories that produce the goods they purchase. Trade unions and NGOs have collaborated in consumer awareness campaigns targeting Nike, Gap, Wal-Mart, Disney, Liz Claiborne and other well-known firms. At their best, such campaigns have reflected six-sided alliances that include the sharing of strategies and tasks by unions, NGOs and newly industrialized countries in both northern and southern countries. The three-country concept that focuses on the production site and retail market and corporate manufacturer bases is increasingly recognized as an important equation.

But shared goals, strategies and tasks do not erase differences. The new movement for corporate codes of conduct has also generated tensions between unions and NGOs that must be squarely faced. Like the alliances, tensions run horizontally and vertically among unions and NGOs in the north and in the south. As Alan Leather, deputy general secretary of Public Services International (PSI), a GUF of public sector workers, recently noted:32

[R]elations between the two sectors have frequently been marked by ignorance and suspicion and sometimes by rivalry or outright hostility. This is hardly surprising. The phenomenal expansion in the number of NGOs operating around the world and their growing international influence, have taken place within a political and economic context in which trade unions have experienced overall declines in membership and political influence. In addition, although they may be grappling with similar issues and share many perspectives, unions and NGOs work in very different ways. Unions act on the basis of mandate from their membership, as a result of which they risk becoming over-bureaucra- tized and slow to react. By contrast, because they seldom have a clear

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constituency to which they are accountable, NGOs have greater flexibility and can take decisions, quickly, but often without adequate consultation or effective coordination with other civil society organizations.

Indeed, with stable organizations and dues-paying members, unions have a ready answer to the question “Whom do you represent?” The situation for NGOs is far more complex. No single organization speaks authoritatively for the NGO community. NGOs are trou- bled by the question “Who elected you?” In the end, the legitimacy of NGOs rests on the quality of their work and their effectiveness as advocates. Many have achieved legitimacy in the eyes of governments and society precisely because of the quality of their research, reporting and advocacy.

But having gained such stature, some NGOs question leadership claims by labor and see themselves as the focus of a new emphasis on “civil society” in international discourse that gives them greater status than trade union movements. Some even question labor’s claim to broad representation, since in most countries trade union movements have only a minority of workers in their ranks. Union formation is notably lacking among the poorest workers, including informal sector workers, women workers and workers in export-oriented factories, where the effects of globalization are most pernicious and where NGOs are most active.

For their part, many trade unionists are often suspicious of “do-gooders” in NGOs who presume to tell the labor movement what it ought to do without ever having passed through the crucible of an organizing campaign, hard-nosed collective bargaining or a strike to understand what workers are up against. Trade unions question the tendency of NGOs to deal with poverty-related problems through “informal sector” mechanisms like micro-enterprises or other income-generating projects, because these fail to fully address worker rights.33

In contrast, many NGOs find hope in corporate declarations that they want to do the right thing morally and their assertion that it’s good business, too. The Lawyers Committee for Human Rights is involved in AIP/FLA, along with Nike, Reebok, Levi’s, Liz Claiborne and other firms.34 The International Textile, Garment and Leather Workers Federation (ITGLWF) joins the National Child Labor Committee and Amnesty International representatives alongside officials from Toys ‘R’ Us and Avon Products in the SA8000 program. European trade union, NGO and corporate spokespersons comprise Europe’s ETI and CCC. Students have initiated the WRC, linking trade unionists, firms and universities in a code of conduct requiring disclosure of factories that make goods bearing the university’s name (although WRC specifically rules out corporate representation on its board). As reviewed above, a myriad of social “labeling” and product-specific codes for soccer balls, toys, coffee, carpets and so on have also taken shape, usually with trade union, NGO and enterprise involvement.

In any case, most unions still see strong laws effectively enforced, along with self-organization and collective bargaining, as the best ways to advance workers’ interests. For them,

224 Strategies for Promoting Corporate Accountability corporate codes of conduct should be seen not as an alternative but as a supplement to labor law enforcement and collective bargaining.

Many trade unionists suspect that behind corporate and NGO enthusiasm for codes of conduct and related monitoring plans is an agenda aimed at replacing altogether the bargaining and representational role of trade unions and their effectiveness in the political arena. Some see the real goal of corporate backers of codes of conduct as the destruction of strong, class-based workers’ organizations that can organize and bargain and back up their demands with the power to strike. In their place would be scattered, small, resource- starved NGO monitors whose only clout would lie in ad hoc public relations campaigns that would soon be ignored by consumers. Further, some critics believe that the ultimate corporate goal is to replace not only legitimate collective bargaining, but also labor law, with non-enforceable standards.

Workers, unions and NGOs in developing countries have additional criticisms. Many see the movement for codes of conduct as a peculiarly northern phenomenon. Some northern advocates have been embarrassed by reports that codes of conduct long in the making at home took years to be translated into the languages of workers in developing countries covered by the codes. Even after they were translated, codes were rarely disseminated to workers. Some U.S. NGOs claiming widespread, in-depth “consultation” with developing country NGOs in shaping codes of conduct and monitoring systems were embarrassed by the local NGOs’ responses, when asked, that such consultation amounted to no more than a letter, a phone call or a single e-mail exchange.

Many northern advocates adamantly oppose a monitoring role for international accounting firms or other corporate-oriented social auditors. Others oppose monitoring even by northern-based NGOs or unions, insisting that only indigenous, locally based NGOs and unions should monitor codes of conduct. But some of the early monitoring experience using this model only reinforced tensions between unions and NGOs. It turns out that problems of experience, knowledge, legitimacy, capacity, resources, stability, hidden agendas, sectarianism and other issues that mark NGOs in developed countries afflict NGOs in developing countries, too.

In cases well known among activists—those of the Mandarin and Kimi factories in El Salvador, for example—monitoring activity by local NGOs engendered suspicions among trade union leaders in the factories that the NGOs were supplanting the unions’ role as worker representatives. In other instances, certain NGO monitors were seen to be aligned with a political faction in a country’s ideological spectrum that was opposed to that of the factory’s trade union, generating union charges that the NGO was undermining the union’s role.

In another case, a leader of a local church-based NGO charged with monitoring a corporate code investigated workers’ complaints about wage violations and unfair treatment by supervisors at a Central American apparel factory with no trade union. On paper, this activ-

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ity reflects the monitoring model most often promoted by NGO advocates in the north— a local human rights advocate who speaks the language and is trusted by workers, as opposed to a northern-based NGO or a corporate accounting firm. Northern NGO advocates eagerly awaited the chance to launch a new campaign of exposure and denunciation based on findings by a “model” monitoring mechanism.

But the religious leader had no experience in collective bargaining or in workplace issues. This NGO monitor emerged from a meeting with management agreeing that workers would have to increase productivity and work more diligently before wages could be improved and before supervisors could ease their discipline. Management misled him with arguments that trade unionists are used to hearing and refuting, but that were new and plausible to him. “He was good on God, but weak on wages,” said a rueful representative of a union group that was funding the monitoring effort.

Even within the NGO community there are divisions about the adequacy of codes of conduct, divisions that have in the past sometimes resembled a circular firing squad. Thus, for example, NGOs involved in the FLA split over that mechanism’s monitoring system and its approach to “living wage” and country eligibility requirements. Denouncing the FLA and the NGOs that remained in it became a standard practice for other NGOs, even when many of them were involved in alternate schemes, such as SA8000 or ETI, that were not fundamentally different and that themselves had come under attack from yet other NGOs as sellouts to corporate power.

At the end of this chain of inconsistencies have been NGOs that stake out an absolute no- compromise position. They see their role as keeping the heat on corporations through public exposure and denunciation rather than negotiation for ameliorative codes of conduct, since any negotiation requires some measure of compromise with the corporate adversary. In many ways these disputes about what is a reasonable compromise and what is a sellout reflect similar disputes about labor clauses in trade agreements: whether to compromise on “side agreements” or other instruments that may not contain every goal, or to denounce any compromise as a sellout if it fails to achieve every goal.

Critics and advocates of various models of corporate codes of conduct and their monitoring mechanisms have spent a lot of energy dissecting texts, criticizing language and accus- ing one another of selling out. But these exercises have mostly been theoretical, worthy of medieval scholastic debates. None of the codes or monitoring systems have been fully implemented. At this stage, allowing for a variety of experiments and approaches to see what works and what fails, without falling into mutual denunciations and recriminations, is a more fruitful approach for a labor-NGO coalition than a “gotcha” approach to some perceived weakness in language or monitoring procedures.

The real problem has been that any mechanism that stops short of enforceable standards has not been successful. The departure of the International Labor Rights Fund (ILRF)

226 Strategies for Promoting Corporate Accountability from the FLA in early 2002 has left few real advocates for labor rights, and its recent inability to even decide whether to admit the New Era trial—which would be its first real case— is very telling on its credibility.

The tensions and differences examined here have complicated, but have not prevented, efforts by unions and NGOs to collaborate in the pursuit of social justice in the global economy. In recent years, unions and many NGOs have become circumspect about publicly criticizing most code regimes, except the most obviously illegitimate, such as WRAP, and have been selective about endorsing particular schemes. Partnerships that have included UNITE or AFL-CIO involvement have tended to be conservative in either scope or objective, increasing the chances both for successful collaboration and for legitimate results. For example, WRC limits the scope of monitoring by focusing on collegiate apparel only. The GRI limits its objectives to standardizing reporting and does not offer certification or monitoring.

PSI’s Alan Leather recently noted the importance of creating and maintaining viable partnerships between the union and NGO communities:35

While it is to be expected that NGOs and trade unions should pursue diverse strategies, and adopt different means of achieving them, it is critical that they each avoid doing so at the expense of the other. More urgently than ever before, there is a need to engage in constructive dialogue, and to work together towards a common cause. As the gulf between rich and poor broadens, as employment and access to basic social services become increasingly insecure for the vast majority of working people and their families, and as the need for a concerted voice to challenge the ethos of the market is felt ever more intensely, trade unions and NGOs cannot afford to go it alone.

Certainly the two communities still have more in common with each other than either has with corporations, governments or international organizations that see free trade and free- flowing capital as the solution to low labor standards. Mutual recognition of their overrid- ing common interests is critical to achieving their goals as they confront these powerful actors in the global economy with demands for social justice. At the same time, having their eyes open about tensions and differences in their own ranks will allow them to better navigate the opportunities and challenges that lie ahead.

Compromises are not sellouts if they are negotiated with workers and legally binding on employers, such as they are in framework agreements. As unions and NGOs search for more effective ways of working together, a common recognition of the indispensable nature of collective bargaining and enforcement mechanisms, long the cornerstone of ILO standards, will help them devise more successful systems of advocacy, generating benefits that reach and empower workers to secure their rights.

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Other Strategies

Strategic Campaigns

The strategic campaign36 is one of the most effective tools U.S. trade unions use to defend their rights against violations by multinational employers. It has evolved over the past 15 years as companies have increasingly moved production to low-wage regions and permanently replaced strikers. Strategic campaigns, sometimes called corporate campaigns, have offered unions the opportunity to minimize these risks by providing creative alternatives to replace or magnify the impact of the traditional strike.

Strategic campaigns are aimed at organizing new members, settling favorable collective agreements, passing legislation that supports worker rights or reversing violations of union rights. A winning campaign is marked by strong commitment, thorough preparation and vigorous organizing. It is distinguished by its reach beyond the typical labor- management dispute to represent a struggle for social and economic justice. As such, it always involves the media, customers and the public. Cesar Chavez, who led the United Farm Workers Union (UFW) and conducted one of the first-ever strategic campaigns, once said, “The fight is never about grapes and lettuce. It’s always about people.”37

Part of the genius of strategic campaigns is that they prevent companies from isolating unions from the rest of society; rather, companies are held accountable to all of society. Since strategic campaigns address issues important to the public, unions create alliances with other members of civil society to broadcast the message and increase pressure on the offending employer. Campaign partners may include union members, the media, social action groups, religious organizations, other unions, politicians and even sympathetic members of the business community. Some campaigns have an international dimension.

Strategic campaigns are designed after extensive research. Although the plans are comprehensive, they are flexible enough to be changed when new information indicates that change is desirable. All available information on an employer, including its vul- nerabilities, is analyzed to serve as the basis for designing a unique strategy that fits the specific situation. Good strategies target those who have the power to make decisions in the union’s favor. Successful campaigns are also marked by a high degree of union member participation, often through worker committees on membership, research, media, union outreach, community outreach and legislative (political) issues. Campaigns are planned and coordinated by a steering committee composed of union leaders and committee chairs.

Effective strategies generally begin with low-risk, low-intensity activities, such as letter- writing campaigns, and escalate in intensity as the campaign proceeds. Perhaps later on, strategies employing strikes, sit-ins or demonstrations may occur. Tactics may include petitioning, teach-ins, handbilling, surveys, the use of armbands, posters or

228 Strategies for Promoting Corporate Accountability badges, workplace actions, rallies, demonstrations, marches, strikes and special media events. Campaign activities are conducted where they are most visible.

Perhaps the most classic campaign was conducted before the term “strategic campaign” was even coined. Cesar Chavez, leading the UFW grape boycott of the 1960s, took up “La Causa” to defend California farmworkers against the injustices and abuses that per- vaded the sector. The campaign trained thousands of organizers, pulled leaders out of the fields, targeted particular vineyards, built coalitions with religious and academic communities, made allies of supermarket shoppers across the United States and challenged the country’s morality.38 Today’s strategic campaigns have their roots in that historic effort.

Subsequent noteworthy campaigns included the 1979-1982 campaign conducted by the Amalgamated Clothing and Textile Workers (ACTWU) against the textile corporation J. P. Stevens. ACTWU also participated in a 1984 cross-border campaign to assist workers at a Coca-Cola plant in Guatemala. By focusing international attention on the violent repression of workers, including the murder of union leaders, and generating a credible boycott threat against the company, the campaign prompted Coca-Cola to intervene, leading to new franchise ownership of the Guatemala plant and the union’s survival.

A more recent example of a successful strategic cross-border effort is the Volkswagen campaign conducted in 1996 by the International Brotherhood of Teamsters, whose 1.5 million members are concentrated in the food, transportation and distribution sectors. Three hundred forty members of Teamsters Local 326 in the port of Wilmington, Delaware, had worked for Volkswagen for 30 years. These union members prepared the cars arriving at the port for market, repaired the damaged autos, and then loaded them onto trucks for delivery to VW dealers. The union had agreed in 1994 to transfer its workers to a subcontractor and to work under more flexible work rules under VW’s new outsourcing plan, as long as the subcontractor respected the national collective agreement. The Teamsters also persuaded Delaware’s governor and legislature to lower port costs for VW and to modernize the port.

But on Aug. 27, 1996, when VW workers showed up for work, they discovered that they had been locked out. VW had opened two new processing centers—one in Boston and one in Georgia—overnight. Both centers were run by non-union subcontractors who paid untrained workers half the wages that the Teamster members had received. Since VW was technically not still the union members’ employer, its action was legal, albeit deplorable. Consequently, VW was not required to discuss the plant closing with the union or to give the legally required 60 days’ notice.

The union, the governor of Delaware and the public were angry over this breach of trust. Delaware taxpayers had spent millions of dollars to improve the port for VW. But nothing could be done through the court system. At that point, the union local con-

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tacted the Teamsters Office of Strategic Campaigns to solicit help. The Teamsters began by contacting the Volkswagen union and works council in Germany, verifying that VW would not be allowed to treat German workers the same way in which it had dealt with the workers in Delaware.

After completing their corporate research, the Teamsters developed a strategy. The campaign was built around the philosophy that VW should treat American workers and communities with the same respect with which they treated their German workers and communities. First, union members handbilled the largest-volume VW dealer in the United States for one weekend. The handbills contained consumer alerts on recent VW models, which turned away most potential buyers.

The second tactic involved the participation of dozens of union members, who distributed handbills on VW’s anti-worker action to thousands of visitors attending “German Weeks,” an event held in Washington, D.C. The German Embassy and “German Weeks” management were appalled, and even more so when newspapers across Germany carried the story of VW’s harsh tactics in the United States. Within hours of the handbilling, VW agreed to negotiate a settlement on the condition that the union would stop handbilling the VW dealer in Virginia. The Teamsters agreed, but at a subsequent meeting with the company, VW management refused to discuss reopening the port.

With the help of 20 Teamsters local unions from across the country, Local 326 increased its weekend handbilling activities from one dealer to include the top 20 VW dealers in the United States. VW sales went down to almost nothing. The leafleting continued for the next six weeks. The Teamsters also drafted an open letter called “An Appeal for Justice.” The letter was sent from Delaware’s political leaders along with leaders of religious, civil rights and women’s groups to Gerhard Schröder, then the governor of Lower Saxony and one of the most influential members of VW’s board of directors. (Schröder was rumored to be taking over leadership of the Social Democratic Party with plans to challenge Chancellor Helmut Kohl in the 1998 elections. The Teamsters rea- soned that he would probably prefer to avoid international scandals about American workers. He was elected Chancellor in 2000 and reelected in 2002.)

The Teamsters also sought congressional support for their case. As a result, U.S. Rep. Patrick Kennedy and U.S. Sen. Joe Biden sent official inquiries to VW, requesting views on legislation that would classify any car with more than 2 percent damage upon entry to the United States as a “reconstructed” car. Meanwhile, German unions continued to question and pressure VW about the situation. The pressure mounted with a massive demonstration conducted at VW’s North American headquarters in Detroit.

In December, VW asked Delaware’s Secretary of State to mediate the dispute. Under growing pressure from all sides, VW agreed to reopen the port, signing an agreement on Dec. 24, 1996. The agreement guaranteed that all VWs and Audis sold in a 12-state

230 Strategies for Promoting Corporate Accountability area would be shipped through the Delaware port. The agreement also provided that the Teamsters would be restored to their old jobs and would still be protected under the national collective agreement. In addition, workers received $5 million in back pay for being dismissed without proper notice.

The Teamsters case and others have demonstrated that unions can begin to address the abuses of global corporations through the use of strategic campaigns. Because such campaigns are not limited to legal challenges, they can be conducted under a wide variety of circumstances in diverse settings. This evolving strategy is one of the practical applications of growing union efforts to form a global response to global corporate abuse.

Role of Global Union Federations (GUFs)

GUFs provide the most direct input into the international decision making that affects trade union members. Both GUFs and employers are organized by sector. Each GUF is governed by its own democratic structure and, ultimately, by its own affiliates. Every sector’s individual characteristics affect the policies and methods employed by its corresponding GUF. The distribution of unions into different GUFs reflects both industrial history and the preference of national unions. A report prepared for the 2001 ICFTU Millennium Review looks at how GUFs use and/or view various international mechanisms aimed at improving respect for worker rights.39 The following summary of that report helps provide a glimpse of the significance of the GUF role in the struggle to achieve global respect for worker rights.

International Campaigns

All of the GUFs engage in international campaigns. Some GUFs are primarily involved with affiliate-driven industrial relations disputes and organizing-related campaigns designed to exert leverage or to change an employer’s position. Others execute more thematic campaigns based on political or industrial issues of concern to member unions. A few GUFs participate in both kinds of campaigns.

Dispute-related campaigns are at times complicated by the different views and practices of national affiliates about what can and cannot be achieved through international action. GUFs note that other difficulties may include exaggerated data, insufficient attempts at negotiations and dialogue prior to mobilization, premature efforts to exert maximum pressure on the employer, lack of sensitivity to other cultures and the abandonment of other issues and alliances once the primary issue is resolved. Despite these problems, however, GUF corporate campaigns have achieved a very high success rate.

Looking toward the future, GUFs hope to establish a process that allows candid discussions about the strategies, techniques and methodology used to mobilize solidarity

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and to achieve more balance among the different approaches taken by labor movements in different regions. GUFs also note the importance of taking into account the fundamental circumstances that shape what is appropriate in a given country (e.g., historical, cultural and legal differences), because these affect what does and does not move employers.

Company Councils

In sectors where major multinational companies play a significant role, most GUFs either have established or are planning to establish global company councils or similar bodies. Prior to setting up formal councils, some GUFs have begun to establish networks of union representatives within specific companies. GUFs perceive such councils as an effective way for representatives at the work site level to communicate, share information and discuss problems with other workers around the world. In addition, the councils can provide a strong incentive for organizing workers in locations where unions are weak. Further, the linking of councils in related companies can be useful for coordinating industry-wide campaigns.

The primary obstacle to establishing company councils has been the lack of sufficient resources. Many GUFs cannot keep up with the costs of professional interpretation, travel for delegates from poorer countries, staffing needs and other administrative expenses. To be effective, councils often need full-time servicing.

GUFs may look to one or two major affiliates—usually those in the country where the company is headquartered—to play a key role in the administration of the councils. Staffing shortages are easier to handle in countries that traditionally release employees for trade union work. Some GUFs have considered asking the company itself to make a financial contribution; however, the risks of linking a council too closely with an employer are well known.

Framework Agreements

Another innovative mechanism used by GUFs is a framework agreement, negotiated between a GUF and an employer, that includes commitments to specific standards of behavior. Companies involved in these agreements tend to have a reasonably good relationship with unions in their home countries. In at least one major multinational, Vivendi, a joint GUF effort is underway to establish an agreement, forum, council or combination. Framework agreements in existence as of May 2003 are listed on the next page.40

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Global Union Company Country Branch Federation Year

Danone Switzerland Food processing IUF 1988 Accor France Hotels IUF 1995 IKEA Sweden Furniture IFBWW 1998 Statoil Norway Oil industry ICEM 1998 Faber-Castell Germany Office material IFBWW 1999 Freudenberg Germany Chemical industry ICEM 2000 Hochtief Germany Construction IFBWW 2000 Carrefour France Retail industry UNI 2001 Chiquita USA Agriculture IUF 2001 OTE Telecom Greece Telecommunication UNI 2001 Skanska Sweden Construction IFBWW 2001 Telefonica Spain Telecommunication UNI 2001 Merloni Italy Metal industry IMF 2002 Endesa Spain Power industry ICEM 2002 Ballast Nedam Netherlands Construction IFBWW 2002 Fonterra New Zealand Dairy industry IUF 2002 Volkswagen Germany Auto industry IMF 2002 Norske Skog Norway Paper industry ICEM 2002 Anglo American South Africa Mining ICEM 2002 DaimlerChrysler Germany Auto industry IMF 2002 Leoni Germany Telecommunications IMF 2003

The GUFs pursuing these agreements see the following advantages:

GUFs and their affiliates have influence over the way in which such agreements are enforced;

the agreements allow affiliates to integrate international work into everyday union activities, often as a practical recruitment tool;

the agreements can change the climate within the companies and union relations at the national level;

the agreements can help promote internationalism and solidarity among workers in the sector;

the agreements allow GUFs to get more directly involved in active negotiations with corporate management; and

GUF relationships with top management of a global company can be of direct practical assistance to affiliates for resolving national and local disputes.

Despite these advantages, however, not all GUFs see the framework agreement as advantageous. Some observers warn that at times GUFs and home country unions may under-

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cut union efforts in other countries where the multinational is operating. For example, a GUF may collaborate with home country unions without consulting or involving unions in other countries, resulting in agreements that may not address the needs of the unions and workers they are actually supposed to help. The IUF/Chiquita agreement, which was negotiated with the participation of COLSIBA, the Latin American regional federation of banana workers, is a notable exception to this caveat.

In any case, in order for these agreements to be successful, care must be taken to ensure that they do not restrict the ability of GUFs or their affiliates to publicly and aggressively challenge company practices. In addition, national unions must be fully informed, particularly on monitoring and follow-up. Overall, however, GUFs believe that the advantages outweigh the disadvantages. Also, the GUFs that either already have framework agreements or want to obtain them consider them a high priority.

Several current framework agreements hold suppliers to ILO standards. Union solidarity in this environment is extremely important, as the relationship of retailers, suppliers of raw materials and transport raises numerous organizing possibilities. GUFs and the ICFTU have conducted joint campaigns on the use of child labor in the sporting goods industry, the production of surgical instruments, cutting flowers and more. Joint work between GUFs in this area is considered effective, and most GUFs wish to intensify this kind of cooperation.

To improve the effectiveness of this approach, GUFs are now recommending the establishment of general standards between the ICFTU, national trade unions, the GUFs and their affiliates. They also recommend that framework agreements include language dealing with suppliers. In addition, GUFs note the need for a strategy to find links in the chain where leverage can be built—an approach that would require greater practical cooperation between all GUFs responsible for a company and the other links in its production/distribution chain. Finally, GUFs indicate that a research unit directed by and designed to serve all of the GUFs could help track various sources of corporate power, but sufficient and stable resources would be required for this endeavor.

European and Global Works Councils

In some sectors, the global (or world) company council has been structured to be the principal mechanism for union coordination within a company. This process has become more complex with the development of large numbers of European Works Councils (EWCs) under the terms of EU Council Directive 94/45/BC, but global company councils have benefited in several ways. EWCs can be used very effectively as a core for the establishment of global networks, and preparatory meetings with worker representatives are helpful for exchanging information. Including non-EU representatives in EWC structures can also provide an easy and cost-effective way of bringing unions in a company together.

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However, while EWCs were strongly supported by the European Trade Union Confederation (ETUC) and its industry structures (some but not all of which are integrated into the relevant GUF), most GUFs see a need for caution in this area. First, EWCs can be used to foster a Eurocentric approach, which does not build global solidarity. Second, EWCs are legally created bodies that are not necessarily union based. Some companies have reacted to the EWC system not by opposing their creation, but by ensuring that they are dominated by members sympathetic to the employer. In these situations, EWCs can be used to bypass or weaken trade unions. And third, a number of European industry federations worry that EWCs could be used as an alternative to trade unions, rather than as a support mechanism.

GUFs and the ILO

GUFs see ILO standards and processes as an important part of their work. Most regard the ILO Declaration on Fundamental Principles and Rights at Work as particularly important, and several see the need to incorporate the Declaration into other documents and agreements at the international level.

Most GUFs do not use the Tripartite Declaration on Principles Concerning Multinational Enterprises and Social Policy 41 because they view it as being weak. Having cases accepted for review under this declaration is extremely difficult. All GUFs would welcome stronger language, but until the declaration begins to have a direct impact on governments or employers, it will remain of very limited use.

The GUFs also see ILO sectoral activities as being of limited use, noting the lack of effective sectoral employers’ organizations as one of the biggest obstacles. They charge that sectoral work is constantly obstructed by the International Organization of Employers (IOE), which has no real function except to service the ILO Employers’ group and regularly sends unqualified people to sectoral meetings. The GUFs hope that a future modified process will focus more on results and try to bring major multinationals directly into the process.

GUFs have recommended the following measures aimed at helping the ILO to become a more effective instrument for change:

actively seek and engage specific employers and sectoral associations of employers not only to participate in sectoral meetings but also as a means of pressuring the IOE to become less obstructive;

promote the Declaration on Fundamental Principles and Rights at Work by including and expanding references to the Declaration in framework and other agreements and publicizing the campaign by using the Declaration poster at work sites and at public locations;

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maintain pressure to ensure that the current focus on the Declaration does not overshadow and eventually weaken important instruments not included in the core ILO Conventions; and

conduct joint practical training with national trade union confederations and the ICFTU on the defense and advancement of trade union rights, procedures and jurisprudence of the ILO Committee on Freedom of Association.

Global Anti-Sweatshop Coalition

On Aug. 7, 2001, a coalition of international labor, religious and civil rights leaders launched a global anti-sweatshop campaign. The campaign is led by UNITE and endorsed by the National Labor Committee, the AFL-CIO, USAS, ITGLWF, the National Federation of Free Trade Workers and workers from Canada, the Dominican Republic, Guatemala, Honduras, Hong Kong, Mexico, Nicaragua, Thailand and the United States. The campaign’s basic objective is to pressure the 30 most powerful global retailers that dominate the business to reform their sourcing practices and stop supporting sweatshop conditions. “Despite years of public pressure against sweatshops, today’s global retailers are greedier than ever and more workers around the world are toiling in sweatshops to make their goods,” UNITE President Bruce Raynor stated.42

Raynor, who is leading the global campaign, also noted that “retailers led by the Wal-Marts of the world determine the price and the contractors have no choice. It’s their decision whether a product will be made in a sweatshop.”43 UNITE estimates that 80 percent of the workers producing clothing for U.S. retailers “are working under conditions that systematically violate local and international law.”44

The campaign calls for retailers to provide a living wage and safe working conditions and to respect workers’ right to form unions. UNITE also wants retailers to direct more of their domestic work to union shops. The aim is to change the rules of the business rather than try to certify the good behavior of a few good companies, an initiative currently in vogue with a number of multi-stakeholder groups.

The campaign started with publicity and demonstrations aimed at about ten companies, drawing on the participation of UNITE members, students and church supporters from a new Progressive Religious Partnership. The campaign targeted the back-to-school and holiday sea- sons in 2001. The coalition has also issued a multimedia news magazine— www.BehindTheLabel.org—to publicize the stories of sweatshop workers from around the world.

UN Global Compact

Following consultations with the International Chamber of Commerce and others, UN Secretary General Kofi Annan announced the UN Global Compact. Annan has asked companies to support nine universal principles in the area of human rights (based on the

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Universal Declaration of Human Rights and the UN Covenants), worker rights (based on the ILO Declaration on Fundamental Principles and Rights at Work) and the environment (based on the Rio principles).

A recent ICFTU report noted that global labor unions are divided with regard to the potential value of the compact, although they all agree that the companies that have signed the Global Compact should be held accountable to the principles it contains. Proponents noted the following advantages:45

it provides another basis to argue for global standards;

it gets companies to come on board for global agreements;

it could and should be used to make companies feel under increased scrutiny; and

it creates a climate for dialogue.

Opponents, however, note the following weaknesses:46

there are no procedures for implementation or enforcement;

companies can use it as good public relations without actually complying with the standards (it can be seen as UN “blue washing”);

companies can use it as an excuse not to enter into agreements, claiming that they have already committed by signing the compact; and

NGOs have been very critical of labor’s inclusion in the compact.

Shareholder Initiatives

Proponents of human and worker rights are also exploring another way of encouraging global corporate accountability in the apparel industry: the shareholder resolution. Efforts are being made to encourage shareholders to pass resolutions to hold companies more accountable for how their corporate codes of conduct are implemented around the world.

Shareholders of Wal-Mart, for example, which faced negative publicity in 1996 when Kathie Lee Gifford came under fire for sponsoring a Wal-Mart line of clothing made in Central American sweatshops, were forced to vote on such a resolution in June 1997. The shareholders voted against the resolution, but the debate pressured management for closer oversight of supplier conduct.

Other companies that have faced shareholder heat include Limited Brands, May Department Stores, Dillard Department Stores, the Phillips-Van Heusen Corporation and Walt Disney. In February 1997, Disney shareholders voted down a resolution to curtail

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wage violations and unsafe working conditions, to report on workplace conditions at all sites and to set up an independent monitoring system.48

In 2000, trade unions from the United States, the United Kingdom and Australia, along with the International Federation of Chemical, Energy, Mine and General Workers Union (ICEM), joined forces in promoting two proposals to encourage Rio Tinto, a mining company based in the United Kingdom and Australia, to improve its corporate responsibility. The first proposal, aimed at securing an independent voice on the board, called for the appointment of an independent, non-executive deputy chair. The second proposal called for the adoption, implementation, enforcement and monitoring of a “credible workplace code of labor practice” tied to core international labor standards. In May 2000, 20.3 percent of shareholders supported the proposal for an independent director, while 17.3 percent voted in favor of the worker rights initiative. This was a higher margin than similar initiatives had received at any company until that time. Although the labor coalition did not win the vote, the company agreed to pay greater attention to human rights, including worker rights.

In 2001, labor and pension groups focused their attention on Burma, where widespread and sustained abuses of worker rights have been well documented. The LongView Fund sponsored resolutions at oil services companies McDermott International and Halliburton. The resolutions called for the companies to prepare written reports on the scope of their operations in Burma and the steps they had taken to ensure that neither the companies nor their subsidiaries were involved in or appeared “to benefit from the use of forced labor or other human rights abuses in Burma.” 49 The resolution won 15.8 percent of the vote at McDermott and 10.5 percent at Halliburton.

Other potential opportunities for increasing shareholder awareness and activism may be found among worker-owned multinationals. Public employee pension funds are the largest institutional investors in the world, but this ownership is not actively exercised at present.

The use of shareholder resolutions as a tool for achieving worker rights is still a nascent concept. It has not yet succeeded in winning a majority vote for measures designed to increase respect for worker rights. However, the controversy over these resolutions, the publicity generated by their introduction and the need for top company managers to face shareholders and explain their actions have already increased pressure on companies to treat workers fairly.

Moreover, although support for resolutions on social issues is historically quite low, the increasing activism on behalf of worker rights issues has won the highest vote of its kind. The more than one-third of votes garnered in May 2002 for a resolution to oblige Unocal (a leading independent natural gas and crude oil exploration and production company) to adopt ILO core labor standards is unprecedented. It is aslo noteworthy that Insti- tutional Shareholder Services, Inc. (ISS), the leading independent proxy advisory firm in

238 Strategies for Promoting Corporate Accountability the United States, recommended that Unocal shareholders vote in favor of the resolution. As the use of shareholder resolutions grows, the labor movement will continue to lead the effort to increase investor awareness and to build partnerships aimed at expanding support for greater corporate social responsibility.

Emerging Market Investment Guidelines

Over the past several years, realization has been growing among pension fund trustees that the suppression of worker rights is linked to political and economic instability and that these factors must be taken into account in evaluating investments. There is a dawning recognition that strong democratic institutions, including a system that respects worker rights, can improve a country’s ability to endure economic upheavals—partly because strong, independent trade unions can help check the kind of arbitrary decision making that contributed to the Asian financial crisis in the late 1990s.50 Accordingly, pension fund investments are safer in countries where democratic principles, including labor standards, are enforced.51 Consequently, pension trustees have become increasingly interested in applying nontraditional criteria to investment decisions.

The California Public Employees’ Retirement System (CalPERS), the largest pension fund in the United States, was the early leader in looking at nontraditional investment criteria. In 2000, CalPERS joined the AFL-CIO in an investors boycott when the Chinese government and Goldman Sachs took Chinese state-owned oil firm PetroChina public.52 The fund prohibited investments in publicly traded companies in both China and India.

Union trustees and the California State Treasurer’s Office then led the drive to make worker rights a criterion for sound investments. In a significant development, CalPERS announced in November 2000 that it would become the nation’s first pension fund to consider human rights and labor standards when investing in developing countries. CalPERS described the move as a response to the 1998 global financial crisis, when pension funds lost billions of dollars after investing in countries that suppressed democracy and prohibited independent unions.

The new emerging market investment policy includes three new investment risk factors to take into account in making foreign investment decisions. The new factors, which are listed below, are weighted at 50 percent. The other 50 percent are composed of the five previous financial market risk factors.

1. Political stability (17 percent of score):

civil liberties

independent judiciary and legal protection

political risk

239 Chapter 7

2. Transparency (16 percent of score):

freedom of the press

accounting standards

monetary and fiscal transparency

stock exchange listing requirements

3. Productive labor practices (17 percent of score):

ratification of core ILO standards

quality of enabling legislation

institutional capacity to enforce legislation

effectiveness of implementation of legislation

In February 2002, CalPERS implemented its policy for the first time. The fund pulled $450 million in investments out of countries where worker rights are systematically violated, dropping China, India, Indonesia, Malaysia, the Philippines and Thailand from its portfolio.53

The New York City Employees’ Retirement System (NYCERS) adopted a policy in June 2001 that included investment criteria on respect for international labor standards, political stability and the rule of law. The NYCERS policy also included health and safety and environmental protection.54 Pension funds in the Netherlands and Sweden have also adopted nontraditional guidelines.

In addition, four GUFs are examining the use of workers’ capital, pension funds or capital market tools to move employers. Some study how to secure ethical investment guidelines and accountability mechanisms for investors, while others try to quietly contact key institutional investors before launching a public campaign.55 Many GUFs see corporate governance, particularly as it relates to workers’ capital issues, as an important factor in exposing companies to public criticism and scrutiny of company practices around the world.56

These new investment policies recognize the link between the strength of democratic institutions and the long-term health of the investment climate. Their aim is not to withhold or withdraw investment, but rather to implement policies to improve the performance of companies operating in countries where democracy and respect for labor standards are weak. Accordingly, such policies should stimulate a greater flow of investment as investors develop ways of decreasing risk.57

240 Strategies for Promoting Corporate Accountability

The use of investment criteria that assess a country’s political stability and respect for labor standards is an admirable and innovative move. However, some skeptics are questioning how feasible it will be to apply these criteria consistently. Only a month after CalPERS’ dra- matic action, on the heels of the Enron scandal, observers began to question why these guidelines do not also apply to investments in private equity markets. CalPERS had extensive business partnerships with and investments in Enron, a relationship that the Service Employees International Union (SEIU) had strongly opposed.58 CalPERS currently has $475 million in investments in the Carlyle Group, which is under increasing media scrutiny. Carlyle already has investments in China, which is on CalPERS’ public market blacklist. The chances for future contradictions to appear between public and private equity investments in unstable or undemocratic countries are high.

Nevertheless, CalPERS has broken important ground, silencing decades of skeptics who claimed that such assessments could not be done. The application of worker rights criteria to pension investments constitutes another promising tool for increasing respect for worker rights in the future.

AFL-CIO Investment Product Review (IPR)

The AFL-CIO Investment Product Review (IPR)59 evaluates investment vehicles that market themselves as “worker-friendly.” The IPR provides criteria to use in assessing how worker-friendly these products really are, including:

how investment managers vote their proxies;

how they monitor respect for core international labor standards in the companies where they invest;

how investments affect the plan participants; and

how investment managers interact with those companies when problems arise.

The IPR deals separately with private equity, public equity and international investments. It does not attempt to evaluate financial performance.

Social Labeling

Rugmark

One new strategy worker rights advocates have developed is special product labeling. This practice, which requires the cooperation of both manufacturers and importers, attaches labels to products informing consumers that the product they are purchasing meets certain socially desirable criteria. Rugmark International, for example, identifies hand-knotted carpets made without child labor. The Rugmark initiative began in 1994 in response to consumer pressure in Europe; since that time, more than 3 million car-

241 Chapter 7

pets have been shipped with the Rugmark label. In fact, major European importers have already committed themselves to exclusively importing Rugmark carpets from countries where the label is available.

To participate, carpet producers must make a legal contract to:

produce carpets without child labor;

pay the legal minimum wage;

allow access to looms for unannounced inspections.

Nearly 700 Indian and Nepalese rug producers have been certified for participation. Production sites regularly undergo inspection. Each labeled carpet is individually num- bered, enabling its origin to be traced as a protection against counterfeits.60

Foulball

The Foulball campaign, carried out under the auspices of the ILRF, seeks to replace child labor with adult labor in the production of soccer balls and other sports equipment. The campaign has used media, legislators, local city councils, store surveys and other methods to focus the American public’s attention on this issue. As a result, many soccer teams, players and parents have taken action. In addition, the international trade union movement has succeeded in persuading FIFA, the international governing body of soccer, to agree that its seal of approval on a ball would also guarantee that the ball had been made only by an adult. FIFA is working with union and citizens groups to establish a child labor inspection or verification system wherever balls are made.61

Local Government Sanctions and Corporate Response

Local U.S. government jurisdictions also began to apply sanctions on multinationals that do business with governments considered to be egregious human rights violators. For example, following Nobel Prize winning Burmese opposition leader Aung San Suu Kyi’s appeal to block investment in her country, the state of Massachusetts and the city of San Francisco, California, declared that multinational companies that did business in Burma were ineligible for state and city contracts.

Apple Computer, Inc., withdrew from Burma in October 1996 in order to be able to continue supplying Massachusetts with educational computers. Pepsi-Co, Inc., announced in January 1997 that it would pull out of Burma “in recognition of tough- ened U.S. policy toward the country and in deference to the wishes of many shareholders and customers.”62

242 Strategies for Promoting Corporate Accountability

Other legislation is under consideration by other states and cities. However, the business community, led by the National Foreign Trade Council, has launched a legal and public relations campaign to reverse the trend. In June 2000, in a major setback for worker rights advocates, the Supreme Court struck down Massachusetts’ Burma sanctions statute as an unlawful intrusion by state government into foreign policy areas reserved to the federal government by the constitution.63

ENDNOTES

1 See “Multinational Corporations and United States Foreign Policy,” Hearings before the Subcommittee on Multinational Corporations. Senate Committee on Foreign Relations,” 94th Cong., 1st Session, 381-86 (1975).

2 United Nations Economic and Social Council. Second regular session of 1990. Item 7(d) of the provisional agenda. UN document E/1990/94 at 7 (1990) cited in “Corporate Responsibility and Human Rights,” ABA Annual Meeting document (Minneapolis: Minnesota Advocates for Human Rights, August 8, 1993).

3 See “Employment and Industrial Relations” clause, OECD Guidelines for Multinational Enterprises (1976; revised 2000).

4 See Duncan C. Campbell and Richard L. Rowan, Multinational Enterprises and the OECD Industrial Relations Guidelines (1983); John Robinson, Multinationals and Political Control (1983).

5 Schantz, Penny, International Trade Union Strategies in Dealing with Companies and Other Employers: A Report for the ICFTU Millennium Review Prepared on Behalf of the International Trade Secretariats, International Confederation of Free Trade Unions, September 2001, p. 10.

6 Warner, Susan, “Carrefour Agrees to Work Out a Union Pact with Workers,” Philadelphia Inquirer, March 27, 1991, p. E01.

7 See ILO, World Labour Report (Press Kit version, 1997), p. 8.

8 For a discussion of cases arising under the ILO Declaration, see B. Glade and E. Potter, “Targeting the Labor Practices of Multinational Companies,” U.S. Council for International Business, Focus on Issues (1989).

9 See Karen Paul, “The Inadequacy of Sullivan Reporting,” The South African Quagmire, ed. S.P. Sethi, Ballinger Publishing Co., Cambridge, Mass., 1987.

10 Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C. §§ 5001-5116 (1988).

11 See Helen E. Booth and Kenneth A. Bertsch, “The MacBride Principles and U.S. Companies in Northern Ireland,” Washington, D.C., Investor Responsibility Research Center (1989).

12 See Jorge Perez-Lopez, “Promoting International Respect for Worker Rights through Business Codes of Conduct,” Fordham International Law Journal, Vol. 17, No. 1 (1993): 1, 12-19, 32-35.

13 Global Sullivan Principles of Social Responsibility. June 2002. http://www.globalsullivanprinciples.org, p. 1.

14 Id., p.1.

243 Chapter 7

15 See Lance Compa, “International Labor Rights and the Sovereignty Question: NAFTA and Guatemala, Two Case Studies,” American University Journal of International Law and Politics, Vol. 9. 1 (Fall 1993).

16 See “Activists Reached a Variety of Agreements in Withdrawing All 10 Maquiladora Resolutions,” Investor Responsibility Research Center News for Investors (May 1992), p. 15.

17 See Daniel Pink, “The Valdez Principles: Is What’s Good for America Good for General Motors?” 8 Yale Review of Law and Social Policy 180, 189 (1990).

18 “Social Responsibility/Global Sourcing and Operating Guidelines.” Levi Strauss & Co. Available at www.levistrauss.com/responsibility/conduct/guidelines.htm.

19 See John McCormick and Marc Levinson, “The Supply Police,” Newsweek, Feb. 15, 1993, pp. 48-49.

20 For more information on the ETI, visit: www.ethicaltrade.org. 21 For more information on the FLA, visit: www.fairlabor.org.

22 For more information on the Dutch Fair Wear Charter, visit: http://www.cleanclothes.org.

23 For more information on SA8000, visit: www.sa-intl.org.

24 For more information on USAS, visit www.usasnet.org.

25 For more information on WRC, visit www.workersrights.org.

26 For more information on the WRAP program, visit: www.wrapapparel.org.

27 More information on ETAG is available at www.maquilasolidarity.org.

28 Codes of Conduct for [Korean] Overseas Investment Companies (OIC). May 15, 1996.

29 “Global Reporting Initiative,” Greenmoney.com, Winter 2001, p. 2.

30 “Global Reporting Initiative Announces First Board of Directors,” Press Release, Global Reporting Initiative, Jan. 24, 2002, pp. 1, 2.

31 “Global Reporting Initiative,” Greenmoney.com, Winter 2001, p. 1.

32 Leather, Alan, “Special Call for Papers: Special Issue on Trade Unions and NGOs,” NAD Network email for Development in Practice Journal, Jan. 26, 2002, p. 1. For more information, visit http://www.developmentinpractice.org/call_for_papers.htm.

33 Id., p.2.

34 It should be noted, however, that the International Labor Rights Fund (ILRF) withdrew from the FLA. This is illustrative of some of the difficulty encountered by groups with such diverse agendas when they attempt to work together on labor rights issues.

35 Leather, Alan, op. cit, p. 2.

36 The majority of material in this section is summarized from two publications. These are “Strategic Campaigns Planning Handout,” written by Andy Banks and Teresa Conrow for Public Services International (PSI) in 1994 and a case study written by Andy Banks for the Austrian OGB in 1999. The case study is titled “Trade Unions’ Strategic Campaigns in the United States.”

37 “Planning to Win: Taking a Comprehensive Approach to Labor’s Corporate Campaigns,” Labor Research Review #21, Volume XII, #2, Fall/Winter 1993, p. 1-23. 38 Ibid., p. 1-9.

39 Shantz, Penny, International Trade Union Strategies in Dealing with Companies and Other Employers. The material in this section that addresses the viewpoint of global union federations on different worker rights strategies was condensed from pp. 1-15.

244 Strategies for Promoting Corporate Accountability

40 Sorted by year of concluding/signing the agreement. © Robert Steiert (IMF)/Marion Hellmann (IFBWW), 2002. Some GUFs call the agreements “Framework Agreements,“ not Codes of Conduct, because the first agreement fixed only a few principles that often were extended by additional agreements. For instance, in the case of Danone, the first agreement of 1988 has been developed in six subsequent agreements. See Glossary for definition of GUFs.

41 Tripartite Declaration on Principles Concerning Multinational Enterprises and Social Policy. International Labor Organization, available at www.ilo.org/public/english/employment/multi.

42 Work in Progress, AFL-CIO, Aug. 13, 2001, pp. 1, 2.

43 Moberg, David, “Never Let Them See You Sweat,” In These Times, Oct. 15, 2001, p. 16.

44 Id., p. 17.

45 Schantz, Penny, International Trade Union Strategies in Dealing with Companies and Other Employers, p. 10.

46 Id., p. 10.

47 Human.Rights@Work, ILO Bureau for Workers’ Activities (ACTRAV), International Labor Organization, No. 2/02, March 1, 2002, p. 1. 48 Green, Paula L., “Change of Venue for Sweatshop Row,” Journal of Commerce, Feb. 26, 1997, pp. 1,5.

49 Solomon, Joel, Cross-Border Active Ownership by U.S. Pension Funds, Working Paper #5, AFL-CIO Center for Working Capital, November 2001, p. 10.

50 Solomon, Joel, The Positive Impact of Democratic Institutions and Principles on Emerging Market Investments, Working Paper #1, AFL-CIO Center for Working Capital, July 2001, p. 6.

51 Id., p. 6.

52 Shorrock, Tim, “CalPERS and Carlyle,” The Nation, April 1, 2002.

53 Elizabeth Wine, “Calpers Withdraws from Investments in Asia: Latest Move Stems from Pension Fund’s Concern Over Social Responsibility,” Financial Times (London), Feb. 22, 2002, p. 2.

54 Solomon, Joel, Cross-Border Active Ownership by U.S. Pension Funds, p. 8.

55 Schantz, Penny, International Trade Union Strategies in Dealing with Companies and Other Employers, p. 5.

56 Id., p. 11.

57 Solomon, Joel, The Positive Impact of Democratic Institutions and Principles on Emerging Market Investments, p. 2.

58 Shorrock, Tim, “CalPERS and Carlyle.”

59 The information in this section is summarized from Joel Solomon’s “Cross-Border Active Ownership by U.S. Pension Funds,” pp. 6, 7. Information on the Investment Product Review is available at http://www.aflcio.org/aboutaflcio/about/convention/2001/ecreport/globaleconomy.cfm

60 See www.rugmark.org/help_fact_sheet.htm.

61 “Foulball: A ’No Child Labor in Sporting Goods’ Campaign,” Child Labor Monitor, Vol. VI, No. 2, December 1996, p. 3.

62 “Burma Campaign Business Fighting Trend toward Sanctions,” Washington Post, March 4, 1997, pp. C1, C5.

63 See Crosby vs. National Foreign Trade Council, 530 U.S. 363 (2000). For article, see Jan Crawford Greenburg, “Court to States: Hands Off Foreign Policy,” Chicago Tribune, June 20, 2000, p. 20.

245

Chapter 8

Pursuing Worker Rights in the New Millennium Existing known worker rights tools and mechanisms need to be refined, defended and strengthened, particularly in the light of the ever changing nature of the global corporation.

—ICFTU Milennium Review Report, 2001 Pursuing Worker Rights in the New Millennium

Some positive changes in worker rights practices around the world are attributable to the application (or the threat of application) of worker rights provisions in trade laws. At the very least, these have gotten the attention of governments at the highest level. While the United Nations, the International Labor Organization (ILO), the International Confederation of Free Trade Unions (ICFTU) and others have been significant players for many years, new trade laws such as the Generalized System of Preferences (GSP) have made foreign officials suddenly aware of worker rights problems in a way that non-enforceable international conventions and pleadings by international trade unions, human rights advocates and other socially concerned groups were never able to do before. This result is due not only to the potential threat of the loss of benefits, but also to the fact that no nation enjoys being publicly questioned about the repression of its workers, the exploitation of its children or its failure to provide safe and healthy workplaces.

In fact, GSP pressure has now produced new labor codes acceptable to the trade unions in the Latin American countries of Panama, Paraguay, Costa Rica and the Dominican Republic. A 1996 report by the Organization for Economic Cooperation and Development (OECD) noted that the conditioning of eligibility for GSP benefits on the respect of core standards “induced a positive change in the behaviour of some countries.”1 This, said the OECD, was what prompted the European Union to add a similar set of conditions to its GSP.

Nevertheless, unions and human rights groups are disappointed with the amount of progress made. The U.S. government is among those that have received criticism from a variety of sources for many of its worker rights determinations relating to GSP or Overseas Private Investment Corporation (OPIC) benefits. Some critics accuse the government of punishing its political enemies and letting its friends off the hook. Others believe that certain decisions reflect the U.S. national economic interest without openly saying so. The president’s right of waiver under GSP, they assert, is exercised for him before he can even consider using it. Still others believe that countries with serious worker rights problems can easily placate the United States with a “token” step (under GSP/OPIC) that is easily retracted or ignored once a country is no longer under review.

Many new, experimental methods of linking worker rights and trade are emerging. While international economists are still struggling to determine whether labor standards should be linked with economic development, human and worker rights groups are promoting the passage of laws and trade pacts that link trade privileges to respect for worker rights. Unfortunately, these efforts have been strongly resisted by many in the international trade arena. Proponents of free trade, who fear that countries that impose such standards must be prepared to respond to equivalent actions by other trading partners, argue that developed countries with extensive labor welfare standards could employ worker rights in international trade agreements as a convenient tool to protect themselves against U.S. exports.

249 Chapter 8

This fear of restricted trade has prevented the inclusion of enforceable worker rights provisions in bilateral and regional trade agreements and has even prevented the inclusion of labor as a partner with governments and employers in the World Trade Organization (WTO). The WTO has thus far rejected calls to form a working group to study the feasibility of including worker rights in WTO agreements. Developing countries that sorely need capital, anxious governments of developed countries that fear the erosion of capital and seek new export markets and greed-driven employers are supporting the elimination of any national law, worker right, environmental protection or democratic process that the WTO perceives as a barrier to free trade, pushing the world into an ever-hurried “race to the bottom.”

The adverse impact on democracy, worker standards of living and safe and healthy working conditions generated by global integration without democratic worker protections is not, as developing countries sometimes think, a protectionist concern of spoiled developed nations that don’t want to erode their wealth. It is true that the industrialized nations are affected by the exodus of skilled jobs from their countries to countries where worker rights are not well protected. Economists believed that France’s 11.5 percent unemployment rate (and Europe’s overall 10 percent unemployment rate) in 1995 reflected the pressure of competition from Asia and Eastern Europe.2 Bowing to this pressure, France moved to a 35-hour workweek in 1998.

Unfortunately, developing countries are also adversely affected. In fact, they are already part of the same rapid race to the bottom, as their governments are increasingly tempted to succumb to pressure to weaken already inadequate worker protections in order to attract foreign investment. Note the following examples:

In 1997, Richard Bernal, Jamaica’s ambassador to the United States, told the Journal of Commerce that the inability of some Eastern Caribbean countries to produce bananas at Central and Latin American price levels was due to several factors, including stronger worker rights in his country.3

In the mid-1980s, most of Reebok’s athletic shoes were manufactured in South Korea and Taiwan. But as more foreign investment was directed toward these countries, wages increased. As a result, Reebok began to move out of these countries to cheaper markets such as China, Indonesia and Thailand. By 2001, less than 5 percent of Reebok’s shoes were produced in South Korea. In 1994, Reebok closed down its assembly lines in Taiwan. Athletic shoe manufacturers are not the only companies engaging in this behavior. In December 1994, AT&T announced plans to relocate some cordless phone production from Singapore to Malaysia, Thailand and China.4

In 1991, Chinese businesses investigating sites in Panama for production facilities pushed the government for certain benefits. The Economist reported: “To attract them, Panama has adjusted its tax and labour laws. Factories in export processing zones [EPZs] get full tax exemptions on profits for 10-20 years, plus exemption from the country’s tough labour

250 Pursuing Worker Rights in the New Millennium code, giving them the right to dismiss workers and restrict strikes.”5 This adjustment occurred in 1990, when Panama modified Law 13, which amended the labor code, and Law 16, which applied solely to enterprises in Panama’s EPZs. These changes allowed companies to postpone negotiating collective bargaining agreements for up to four years. Many companies invoked these laws and refused to negotiate with their employees.

Even those already at the bottom can go lower, it seems. The Wall Street Journal reports that in China, one of the worst human and worker rights offenders but also one of the very cheapest labor markets, officials in coastal cities are beginning to lose their ability to attract investors as even lower-cost areas further inland become more accessible or simply economically advantageous. For example, the Tsann Kuen Enterprise Company, an electrical appliance manufacturer, originally moved from Taiwan to Xiamen in China to take advantage of lower costs. But according to the Journal, rising wages began to “erode its initial success.” Other attractions, such as a lower average inland wage and land values half as high, secure the oncoming decline of coastal business; China has actually generated economic decline within its own borders!6

This last example shows clearly how the “bottom” appears, in the end, to be bottomless. The sacrifice of democratic rights in favor of short-term economic gains will eventually erode wealth in all nations. The maintenance of existing rights and the improvement of rights where few exist will depend on united local, national and international coalitions of unions, environmental groups and consumer organizations. A number of national unions have begun to band together across regional boundaries to develop a global response to multinationals that violate worker rights in some countries in an effort to obtain more consistent respect for worker rights in all countries where a company is operational.

In a report prepared in 2001 for the ICFTU Millennium Review, Global Union Federations call for increased education and training on the global economy, on individual industries and on how the labor movement can achieve its goals through the actions of trade union members in relation to their employers. They also call for the updating of existing measures for increasing worker rights:7

Existing known tools and mechanisms need to be refined, defended and strengthened as appropriate on an ongoing basis, particularly in the light of the ever changing nature of the global corporation. Traditional means of industrial action like strikes and boycotts need to be supplemented by other measures and industrial action needs to be designed in a more customer/user friendly way. Also legislation which prevents or hinders international solidarity action either needs to be amended or removed.

Real progress will be attained only with steady monitoring and the development of powerful and consistent enforcement mechanisms. All organizations that support worker

251 Chapter 8

rights must work in their spheres to educate local populations on their rights and what is required to protect them and must use the democratic process to see that these rights remain protected in the new era of economic integration. As has been true in the past, the leadership of the democratic trade union movement will be vital to securing genuine justice for all.

ENDNOTES

1 Organization for Economic Cooperation and Development, Trade, Employment and Labor Standards, OECD Washington Center, 1996.

2 Terrance Roth and Martin du Bois, “Trade Unions in Europe Adopt New Approach,” Wall Street Journal, Friday, Nov. 3, 1995, p. A9H.

3 Hemlock, Doreen, ”Buffeted by Free Trade,” Journal of Commerce, Jan. 15, 1997.

4 “Global Hopscotch,” U.S. News & World Report, June 5, 1995, pp. 43-44.

5 The Economist, June 15, 1991, p. 44.

6 Shanthi Kalathil, ”In China, Investors Flock Inland from Costly Coast,” Wall Street Journal, Oct. 25, 1995, p. A11.

7 Schantz, Penny, ”International Trade Union Strategies in Dealing with Companies and Other Employers: A Report for the ICFTU Millennium Review Prepared on Behalf of the International Trade Secretariats,” International Confederation of Free Trade Unions, 2001, pp. 14-15.

252 Appendix A

Worker Rights Violation Report Form

WORKER RIGHTS VIOLATION REPORT FORM

Date (today’s date): Country (where violation took place):

Name and title of informant:

Source of information (personal interview, newspaper or television report, information from a human rights organization, union bulletin, etc.):

TYPE OF VIOLATION

[ ] Freedom of Association [ ] Right to Organize and Bargain Collectively [ ] Prohibition of Forced Labor [ ] Minimum Age/Employment (Child Labor) [ ] Acceptable Conditions of Work (Minimum Wage, Occupational Safety & Health) [ ] Prohibition on Discrimination

This is a violation of: [ ]law [ ]practice.

Location of violation (must include name of city, department, cooperative, etc.):

Date of violation:

Victim’(s) name(s) (individuals, male or female, unions):

Union representing or advocating for victim:

Is the victim a member of the union? ____ yes ____ no

Perpetrators of the violation:

[ ]Individual [ ]Government [ ]Company [ ]Police/Army

[ ]Other ______COMPANY PROFILE

Company name:

Address:

Country: Located in a free trade zone? [ ]yes [ ]no

Phones/fax:

Products manufactured

Brands or product labels (if applicable)

Service provided

Total number of workers at facility/location where violation took place:

Company ownership: [ ]Domestic

[ ]Foreign Nationality

[ ]Joint Nationality

Related companies (if known) Name Location Country

Parent company:

Subsidiary companies:

Contractor companies:

Supplier companies:

Buyers/customers:

Other related companies:

The Facts (Give a detailed description of the incident. Include names, dates, locations. Describe what action has already been taken by the union): Corroboration (alternative sources of information):

Are there other substandard conditions or violations of national labor law and international labor standards?

Please indicate where the complaint has already been lodged:

[ ]Labor ministry [ ]Buyers [ ]Embassies

[ ]International organizations Please list:

Which representatives of international organizations have already been contacted?

Update/Progress:

Additional documentation?

Appendix B

ILO Convention Summaries

Convention No. 29 Forced Labor, 1930

Aim of the standard

Suppression of forced labor.

The fundamental commitment made by States ratifying the Convention is to suppress the use of forced or compulsory labor in all its forms in the shortest possible time.

Summary of the provisions

A general definition of forced or compulsory labor is given, but the Convention does not apply to five categories of work or compulsory service, subject to certain conditions and guarantees. The five categories are: compulsory military service, certain civic obligations, prison labor, work exacted in cases of emergency and minor communal services.

The illegal exaction of forced or compulsory labor shall be punishable as a penal offence.

261 Appendix B

Convention No. 87 Freedom of Association and Protection of the Right to Organize, 1948

Aim of the standard

The right, freely exercised, of workers and employers, without distinction, to organize for furthering and defending their interests.

Summary of the provisions

Workers and employers, without distinction whatsoever,1 have the right to establish and to join organizations of their own choosing with a view to furthering and defending their respective interests.

Such organizations have the right to draw up their own constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programs. Public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise of this right. The organizations shall not be liable to be dissolved or suspended by administrative authority.

Organizations have the right to establish and join federations and confederations which shall enjoy the same rights and guarantees. The Convention also provides for the right to affiliate with international organizations.

The acquisition of legal personality by all these organizations shall not be subject to restrictive conditions.

In exercising the rights provided for in the Convention, employers and workers and their respective organizations shall respect the law of the land. The law of the land and the way in which it is applied, however, shall not impair the guarantees provided for in the Convention.

1 Regarding the armed forces and the police, however, national legislation shall determine the extent to which the guarantees provided for in the Convention shall apply.

262 ILO Convention Summaries

Convention No. 98 Right to Organize and Collective Bargaining, 1949

Aim of the standard

Protection of workers who are exercising the right to organize; non-interference between workers’ and employers’ organizations; promotion of voluntary collective bargaining.

Summary of the provisions

Workers shall enjoy adequate protection against acts of anti-union discrimination.

They shall be protected more particularly against refusal to employ them by reason of their trade union membership1 and against dismissal or any other prejudice by reason of union membership or participation in trade union activities.

Workers’ and employers’ organizations shall enjoy protection against acts of interference by each other. This protection is extended in particular against acts designed to promote the domination, the financing or the control of workers’ organizations by employers’ or employers’ organizations.

Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize as defined by the Convention.

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the development and utilization of voluntary collective bargaining to regulate terms and conditions of employment.2

1 Concerning union security clauses, which have the effect of rendering obligatory trade union membership or the payment of union contribution, the Committee on Industrial Relations, appointed by the International Labor Conference at its 32nd Session to draft this convention, stated in its report that Convention No. 98 could in no way be interpreted as authorizing or prohibiting union security arrangements, such questions being matters for regulating in accordance with national practice.

2 The extent to which guarantees provided for in the Convention apply to the armed forces and the police is determined by national laws or regulations. The Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be con- strued as prejudicing their rights or status in any way.

263 Appendix B

Convention No. 100 Equal Remuneration, 1951

Aim of the standard

Equal remuneration for men and women for work of equal value.

Summary of the provisions

States having ratified the Convention shall promote and, insofar as is consistent with the methods in operation for determining rates of remuneration, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.

The Convention shall apply to basic wages or salaries and to any additional emoluments whatsoever, payable directly or indirectly, in cash or in kind, by the employer to the worker and arising out of his or her employment. The Convention defines equal remuneration for work of equal value as remuneration established without discrimination based on sex.

This principle may be applied by means of national laws or regulations, legal machinery for wage determination, collective agreements or a combination of these various means. One of the means specified for assisting in giving effect to the Convention is the objective appraisal of jobs on the basis of the work to be performed.

The Convention provides that governments shall cooperate with employers’ and workers’ organizations for the purpose of giving effect to its provisions.

264 ILO Convention Summaries

Convention No. 105 Abolition of Forced Labor, 1957

Aim of the standard

Prohibition of the recourse to forced or compulsory labor in any form for certain purposes.

Summary of the provisions

Under the Convention, States undertake to suppress any form of forced or compulsory labor in five defined cases, namely:

(a)“as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system”; (b)“as a method of mobilizing and using labor for purposes of economic development” (c)“as a means of labor discipline”; (d)“as a punishment for having participated in strikes”; (e)“as a means of racial, social, national or religious discrimination.”

265 Appendix B

Convention No. 111 Discrimination (Employment and Occupation), 1958

Aim of the standard

To promote equality of opportunity and treatment in respect of employment and occupation.

Summary of the provisions

The Convention assigns to each State which ratifies it the fundamental aim of promoting equality of opportunity and treatment by declaring and pursuing a national policy aimed at eliminating all forms of discrimination in respect of employment and occupation.

Discrimination is defined as any distinction, exclusion or preference based on race, color, sex, religion, political opinion, national extraction or social origin (or any other motive determined by the State concerned) which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. The scope of the Convention covers access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.

Member States having ratified this Convention undertake to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with this policy, and to enact legislation and promote educational programs which favor its acceptance and implementation in co-operation with employers’ and workers’ organizations. This policy shall be pursued and observed in respect of employment under the direct control of a national authority; of vocational guidance and training; and placement services under the direction of such an authority.

266 ILO Convention Summaries

Convention No. 138 Minimum Age, 1973

Aim of the standard

The abolition of child labor. The minimum age for admission to employment or work shall be not less than the age of completion of compulsory schooling (normally not less than 15 years).

Summary of the provisions

The ratifying State undertakes to pursue a national policy designed to ensure the effective abolition of child labor and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.

The minimum age to be specified in conformity with the Convention shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years. Developing countries may initially specify a minimum age of 14 years.

The minimum age shall not be less than 18 years—or 16 years under certain conditions1 —for any type of employment or work which is likely to jeopardize the health, safety or morals of young persons.

The Convention provides that limited categories of employment or work may be excluded from its application where special and substantial problems of application arise.2

The Convention does not apply to work done in schools for general, vocational or technical education or in other training institutions.

1 Consultation with the organization of employees and workers concerned, full protection of health, safety and morals, adequate specific instruction or vocational training. 2 A member whose economy and administrative facilities are insufficiently developed may initially limit the scope of application of this Convention, which shall, however, be applicable as a minimum to the following: mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; plantations and other agricultural undertakings mainly producing for commercial purposes, but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers.

267 Appendix B

Convention No. 182 Worst Forms of Child Labor, 1999

Aim of the standard

The prohibition and elimination of the worst forms of child labor, taking into account the importance of free basic education and the need to remove children from all such work and to provide for their rehabilitation and social integration.

Summary of the provisions

Under the Convention, states undertake to prohibit and eliminate any of the following forms of labor for all persons under the age of 18:

(a) “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict.” (b) “the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic purposes.” (c) “the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties.” (d) “work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.”

An accompanying recommendation defines “hazardous work” as “work which exposes children to physical, psychological or sexual abuse; work underground, under water, at dangerous heights or in confined spaces; work with dangerous machinery or tools, or which include heavy loads; work in unhealthy environments which may expose children to hazardous substances, temperatures, noise or vibrations; and work under particularly difficult conditions such as long hours, during the night or where a child is confined to the premises of the employers.”

268 Appendix C

ILO Declaration on Fundamental Principles and Rights at Work

ILO Declaration

ILO Declaration on Fundamental Principles and Rights at Work, 1998

Aims of the declaration

The ILO’s Declaration on core labor standards (CLS) articulates essential elements of the ILO Constitution which are considered fundamental to economic and social development. The Declaration also contains a promotional Follow-up to encourage the efforts made by the member States to promote the Fundamental Principles and Rights reaffirmed in the Declaration. Unlike ILO Conventions, which when ratified give rise to specific legal obligations, the Declaration—which is not subject to ratification—reaffirms broad principles.

Summary of the declaration

To emphasize the distinction between obligations under ratified Conventions and the Declaration, the Declaration explicitly states that it is not a substitute for, nor will it dupli- cate, the existing supervisory mechanisms of the Organization. Rather, the ILO describes the Declaration as a “renewed, solemn political commitment by the ILO and its member states to respect, promote, and realize” the following:

(a) elimination of all forms of forced or compulsory labor; (b) effective abolition of child labor, with priority to the worst forms; (c) equal opportunity and non-discrimination in employment; and (d) freedom of association and the right to collective bargaining.

In order to help implement the goals of the Declaration, as listed above, the ILO’s follow- up contains two promotional reporting tools: the Annual Review and the Global Report.

(a) The Annual Review is composed of reports from governments describing the efforts made to respect the principles and rights relating to all unratified fundamental ILO Conventions, and comments from worker and employer organizations. These reports provide a baseline against which countries can measure their own progress. The Annual Review is introduced by a group of independent Expert-Advisers whose task is to draw attention to aspects for further discussion by the ILO Governing Body.

(b) The Global Report, submitted by the ILO Director-General to the International Labor Conference, offers a dynamic global picture of the situation with regard to one of the categories of principles and rights each year. In a four-year period, all four principles and rights will have been reviewed. It serves as a basis for determining future priorities so that the Organization through its technical cooperation activities can assist its members in implementing the Fundamental Principles and Rights.

271

Appendix D

How to File an ILO Complaint

I. Receivability of complaints

(a)Complaints must be in writing, signed and supported by proof of allegations relating to specific infringements of freedom of association. (b)Complaints must come from organizations of employers or workers or from governments. An organization may be: (1) a national organization directly interested in the matter; (2) an international organization of employers or workers which has consultative status with the ILO; (3) another international organization of employers or workers, where the allegations relate to matters directly affecting affiliated organizations.

II. Complaints as to the observance of ratified Conventions

Article 26

1. Any of the Members shall have the right to file a complaint with the International Labour Office if it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified in accordance with the foregoing articles.

2. The Governing Body may, if it thinks fit, before referring such a complaint to a Commission of Inquiry, as hereinafter provided for, communicate with the government in question in the manner described in Article 24.

3. If the Governing Body does not think it necessary to communicate the complaint to the government in question, or if, when it has made such communication, no statement in reply has been received within a reasonable time which the Governing Body considers to be satisfactory, the Governing Body may appoint a Commission of Inquiry to consider the complaint and to report thereon.

4. The Governing Body may adopt the same procedure either of its own motion or on receipt of a complaint from a delegate to the Conference.

5. When any matter arising out of Article 25 or 26 is being considered by the Governing Body, the government in question shall, if not already represented thereon, be entitled to send a representative to take part in the proceedings of the Governing Body while the matter is under consideration. Adequate notice of the date on which the matter will be considered shall be given to the government in question.

275 Appendix D

Article 27

The Members agree that, in the event of the reference of a complaint to the Commission of Inquiry under Article 26, they will each, whether directly concerned in the complaint or not, place at the disposal of the Commission all the information in their possession which bears upon the subject matter of the complaint.

Article 28

When the Commission of Inquiry has fully considered the complaint, it shall prepare a report embodying its findings on all questions of fact relevant to determining the issue between the parties and containing such recommendations as it may think proper as to the steps which should be taken to meet the complaint and the time within which they should be taken.

Article 29

1. The Director-General of the International Labour Office shall communicate the report of the Commission of Inquiry to the Governing Body and to each of the governments concerned in the complaint, and shall cause it to be published.

2. Each of these governments shall within three months inform the Director-General of the International Labour Office whether or not it accepts the recommendations contained in the report of the Commission; and if not, whether it proposed to refer the complaint to the International Court of Justice.

Article 30

In the event of any Member failing to take the action required by paragraphs 5(b), 6(b) or 7(b)(I) of Article 19 with regard to a Convention or Recommendation, any other Member shall be entitled to refer the matter to the Governing Body. In the event of the Governing Body finding that there has been such a failure, it shall report the matter to the Conference.

Article 31

The decision of the International Court of Justice in regard to a complaint or matter which has been referred to it in pursuance of Article 29 shall be final.

Article 32

The International Court of Justice may affirm, vary or reverse any of the findings or recommendations of the commission of Inquiry, if any.

276 How to File an ILO Complaint

Article 33

In the event of any Member failing to carry out within the time specified the recommendations, if any, contained in the report of the Commission of Inquiry, or in the decision of the International Court of Justice, as the case may be, the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith.

Article 34

The defaulting government may at any time inform the Governing Body that it has taken the steps necessary to comply with the recommendations of the Commission of Inquiry or with those in the decision of the International Court of Justice, as the case may be, and may request it to constitute a Commission of Inquiry to verify its contention. In this case provisions of Articles 27, 28, 29, 31 and 32 shall apply, and if the report of the Commission of Inquiry or the decision of the International Court of Justice is in favour of the defaulting government, the Governing Body shall forthwith recommend the dis- continuance of any action taken in pursuance of Article 33.

III. Commission of Inquiry procedure

Apart from the provisions of the ILO Constitution referred to in the following section, there are no regulations concerning procedures for Commissions of Inquiry. In all cases in which questions have been submitted to a Commission of Inquiry, the Governing Body has allowed the Commission itself to determine its procedure in accordance with the Constitution, subject only to a general directive of the Governing Body. Commissions of Inquiry respect typical procedural guarantees, including hearing witnesses and generally visiting the country concerned. This is a relatively long procedure.

IV. Complaints as to the infringement of freedom of association

Governing Body Committee on Freedom of Association

Composition and terms of reference

The Committee is a tripartite organ of the Governing Body, comprising nine of its members and nine substitutes, plus an independent Chair. It examines complaints of infringement of freedom of association and submits its conclusions and recommendations to the Governing Body. Complaints may be entertained regardless of whether the country concerned is bound by any of the Conventions in the field of freedom of association.

277 Appendix D

Organization of the Committee’s work

(a) The Committee meets three times a year.

(b) The Office may at any time ask a complainant to specify what infringements are complained of, where a complaint is not sufficiently detailed.

(c)The Office informs complainants that they should supply any supplementary information intended to substantiate their complaints within one month.

(d)The allegations are transmitted by the Office to the government concerned, and the substance of any government reply is transmitted to the complainant similarly for reply within a given period.

(e)The Committee decides whether to reach a conclusion or ask the government concerned for additional information.

(f) When it adopts conclusions, the Committee may recommend the Governing Body to communicate them to the government concerned, drawing attention to anomalies, and inviting measures to remedy them as well as the transmission of further information on such measures. It may also recommend referral to the Fact-Finding and Conciliation Commission.

(g)The Committee submits its report on all cases which it has decided warrant further examination to the Governing Body. After approval, it is published in the Official Bulletin.

(h)Where relevant freedom of association Conventions have been ratified by the State concerned, the Committee of Experts on the Application of Conventions and Recommendations will follow the matter up under the regular supervisory machinery. Otherwise, the Committee itself reviews the matter from time to time and may request the Office to ask governments to supply further information on action taken.

Fact-Finding and Conciliation Commission on Freedom of Association

Composition, terms of reference and procedure: The Commission is composed of nine independent persons appointed by the Governing Body, who normally work in panels of three. It examines complaints of infringements of freedom of association referred to it by the Governing Body, including on the request of a government against which allegations are made. The Commission’s procedure is comparable to that of a Commission of Inquiry, and its reports are published.

278 How to File an ILO Complaint

V. Failure to submit Conventions and Recommendations to the competent authorities

Constitutional provision: Article 30 of the Constitution provides:

In the event of any Member failing to take the action required by paragraphs 5(b), 6(b) or 7(b)(I) of Article 19 with regard to a Convention or Recommendation, any other Member shall be entitled to refer the matter to the Governing Body finding that there has been such a failure, it shall report the matter to the Conference.

279

Appendix E

Glossary of ILO Terms

From The U.S. Department of Labor, July 1990. Information also available at http://www.ilo.org/public/english/standards/norm/sources/glossry.htm

ARTICLE 7 This Article of the ILO Constitution concerns the composition of the Governing Body (GB). It provides for 28 titular (voting) Government seats, 14 titular worker seats, and 14 titular employer seats. Ten of the Government seats are non-elective, and are reserved for the States of Chief Industrial Importance. The “structure package” adopted by the June 1986 Conference (but not yet ratified by the required two-thirds of the members) would double the size of the GB, providing for 56 Government seats, 28 worker seats and 28 employee seats. The package would also abolish the non-elective seats for “States of Chief Industrial Importance” and substitute a requirement of representative geographical distribution. See also States of Chief Industrial Importance, Constitutional Amendments, (“Structure Package”).

ARTICLE 17 This Article of the Standing Orders of the International Labor Conference specifies how resolutions relating to matters not included in an item on the Conference Agenda will be handled. Article 17 provides that such a resolution must be submitted to the Director- General at least 15 days prior to the opening of the Conference, and then be transmitted to the Resolutions Committee. The as yet unratified “structure package” includes an amendment to this article designed to prevent the consideration of condemnatory resolutions which violate due process by establishing a 13-member tripartite committee to determine the receivability of such resolutions. See also Resolutions Committee. Constitutional Amendments (“Structure Package”).

ARTICLE 19 This Article of the ILO Constitution empowers the Governing Body to call for reports from countries that have not ratified Conventions, in order to keep standards under review and possibly stimulate additional ratifications. These reports are intended to cover not only national law and practice but also obstacles to implementation and ratification. See also Committee of Experts, General Survey.

ARTICLE 22 This Article of the ILO Constitution requires member States to report regularly on the measures that they have taken to give effect to Conventions they have ratified. These reports are based on a detailed questionnaire approved by the Governing Body for each Convention. Originally due annually, reports are now due every two years for important Conventions, such as those on human rights, and every four years for other standards. The reports are examined by the Committee of Experts. See also Committee of Experts.

283 Appendix E

ARTICLE 24 This Article of the ILO Constitution governs the procedure under which workers’ or employers’ organizations may make representations to the ILO to the effect that a given member State has failed to observe a Convention that it has ratified. See also Representation.

ARTICLE 26 This Article of the ILO Constitution governs the procedure by which a member State can file a formal complaint with the ILO that another member is not complying with a Convention that both have ratified. This procedure may also be initiated by the Governing Body or by a delegate to the International Labor Conference. See also Complaint.

ARTICLE 36 This Article of the ILO Constitution governs the procedure by which amendments to the Constitution are adopted by the Conference. The 1986 “structure package” would amend this article to eliminate the current requirement that 5 of the 10 States of Chief Industrial Importance must ratify constitutional amendments and increase from two-thirds to three- quarters the majority vote required for amendments to certain constitutional provisions. See also Constitutional Amendments (“Structure Package).

COMMISSION OF INQUIRY An independent body may be established by the Governing Body to conduct an impartial, quasi-judicial examination of a complaint filed under Article 26 of the ILO Constitution against a government alleging non-observance of a ratified Convention. A Commission’s report and recommendations are communicated to the Governing Body and each of the parties concerned. A government which does not accept the Commission’s recommendations is entitled to refer the complaint to the International Court of Justice in the Hague. See also Article 26, Complaint.

COMMITTEE OF EXPERTS (COE) The functions of this autonomous body of 20 independent legal experts (who are appointed by the Governing Body for renewable terms of three years) are to examine: (1) reports of governments (including former member States) on their application of Conventions they have ratified; (2) member States’ reports on national law and practice as regards selected unratified Conventions and Recommendations; (3) information supplied by member States regarding the submission of newly adopted Conventions and Recommendations to their competent authorities. Comments regarding the application of ratified Conventions may take two forms: serious cases of non--application are dealt with in “observations” published in the Committee’s Report; other points are sent out in unpublished “direct requests,” to which governments are asked to reply in their next reports. The COE’s examination of unratified Conventions and of Recommendations

284 Glossary of ILO Terms are incorporated into a General Survey. The COE Report is formally considered by the Committee on the Application of Conventions and Recommendations (CACR) during the Conference. See also Article 19, Article 22 Direct Requests, CACR, General Survey, Direct Contacts, Ratifications.

COMMITTEE ON FREEDOM OF ASSOCIATION (CFA) This nine-member tripartite Governing Body committee, plus an independent chairman, examines complaints of infringements of freedom of association submitted either by workers’ or employers’ organizations or by member States. Because freedom of association is a fundamental principle embodied in the ILO Constitution, such complaints may also be made against a member State that has not ratified the freedom of association Conventions. CFA examines the arguments of all parties involved; in particularly urgent or serious cases, its examination may include an on-site inquiry (direct contacts), carried out by a representative of the Director-General. The CFA draws the attention of the government concerned to the principles and standards which it finds to have been infringed and recommends steps to remedy the situation. In a case where the government has ratified the freedom of association Conventions in question, the matter may be referred to the Committee of Experts. See also Committee of Experts, Direct Contacts.

COMMITTEE ON THE APPLICATION OF CONVENTIONS AND RECOMMENDATIONS (CACR) This tripartite Conference committee examines the Report of the Committee of Experts, concentrating on problems of Member States’ compliance with ratified Conventions. The CACR’s findings are incorporated in its Report, which is submitted to the Conference Plenary for adoption. The CACR is the only forum in the UN system where national workers’ and employers’ organizations have the opportunity to question their own or other governments’ labor policies. The purpose of the CACR report is to indicate where countries stand in fulfilling their obligations with regard to ratified Conventions and thereby promote greater application of the Conventions. It highlights cases of continued failure to implement Conventions as well as cases of progress. See also Committee of Experts.

COMPLAINT Under Article 26 of the ILO Constitution, any member State may formally charge that another member State has not effectively observed a Convention that both have ratified. Similar proceedings may be initiated by the Governing Body, either on its own or on receipt of a complaint from a delegate to the Conference. See also Article 26, Commission of Inquiry.

CONSTITUTIONAL AMENDMENTS (“STRUCTURE PACKAGE”) A series of amendments to the 11.0 Constitution and Standing Orders adopted by the International Labor Conference in June 1986. These amendments will enter into force upon ratification by a two-thirds majority of the general membership of the ILO including

285 Appendix E

five of the 10 States of Chief Industrial Importance. To date, a total of 63 out of 150 ILO member States have ratified the structure package. Of those, three—India, Italy and Russia—are States of Chief Industrial Importance. See also Article 7, Article 17, Article 36, States of Chief Industrial Importance.

CONVENTION One type of international labor standard, a Convention becomes a binding international obligation when ratified by a member State. The ILO has created a unique system for monitoring the application of ratified Conventions.

DECENTRALIZATION This term refers to the ILO’s continuing efforts to transfer more of its resources (both money and staff) and responsibilities to the field. Decentralization involves not only ILO offices and projects in the field but a number of semi-autonomous regional centers as well. See also Regional Centers.

DECLARATION OF PHILADELPHIA The Declaration was adopted during the 1944 Conference in Philadelphia and subsequently incorporated into the ILO Constitution as a statement of the aims and purposes of the Organization. It became, by ratification of the amendment incorporating it into the ILO Constitution, part of the obligations of ILO membership. The declaration pro- claims the right of all human beings “to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.” It further states that “poverty anywhere constitutes a danger to prosperity everywhere.”

DIRECT CONTACTS Under this procedure, an ILO representative may visit a country to discuss with government officials and representatives of employers’ and workers’ organizations the points raised by the ILO supervisory bodies (i.e., the COE or the CFA) and the measures best suit- ed to achieve fuller compliance with ILO standards. Direct contacts may be initiated only with full consent of the Member State Concerned. See also Committee of Experts, Committee on Freedom of Association.

DIRECT REQUESTS This is one of the ways in which the Committee of Experts relays its comments on the application of ratified Conventions to governments. Direct requests are not published, unlike “observations”; instead, they are sent directly to the governments concerned. They are usually made when a minor discrepancy is involved or when the government has not made available sufficient information to enable COE to assess the way in which a ratified Convention is

286 Glossary of ILO Terms applied. Governments are asked to reply to the requests in their next report to the COE. See also Committee of Experts.

DOUBLE DISCUSSION The normal procedure for Conference negotiation of proposed new or revised ILO Conventions and/or recommendations, which takes place in two consecutive Conference sessions. See also Single Discussion, General Discussion, Protocol.

DUE PROCESS This principle provides that a government should not be condemned by an ILO body inde- pendently of established and impartial ILO procedures for handling complaints. In certain cases, e.g., Chile and Israel in 1974, condemnatory resolutions have been adopted by the International Labor Conference (ILC) in violation of due process. See also Politicization.

FACT-FINDING AND CONCILIATION COMMISSION (FFCC) An independent commission may be established by the Governing Body to examine complaints submitted by a member State or employers’ or workers’ organization concerning alleged infringements of trade union rights by a Member or non-Member state. No case may be submitted to the Commission without the consent of the government against which the complaint has been filed. In the case of a complaint against a non-Member state (e.g., the Congress of South African Trade Unions’ 1988 complaint against the Republic of South Africa), before the GB refers it to the FFCC, the complaint must first be transmitted to the United Nations (UN) Economic and Social Council (ECOSOC). Before ECOSOC examines the complaint, the UN Secretary-General requests the consent of the Government concerned to the case being referred to the FFCC. If the Government does not so agree, ECOSOC considers the situation with a view to taking appropriate steps to protect the rights relating to freedom of association which have been invoked in the case.

FLEXIBILITY DEVICES Provisions frequently incorporated into the final texts of Conventions to make them acceptable to the majority of Conference delegates and appropriate for ratification by Countries with diverse economic, political and social systems. For example, Conventions may include language pertaining to limitations on scope, national discretion or promotional clauses.

GENERAL DISCUSSION A one-session discussion of a Conference technical agenda item designed to produce conclusions and recommendations with regard to the ILO’s role and future activities in a particular field. A general discussion does not result in the drawing up or adoption of

287 Appendix E

an ILO Convention or recommendation. However, it often results in a resolution which is then forwarded to the Conference Plenary for adoption. See also Double Discussion, Single Discussion.

GENERAL SURVEY This survey is carried out by the Committee of Experts on the basis of reports supplied by governments on the situation of national law and practice in respect of selected Conventions (both ratified and unratified) and Recommendations. The instruments to be reported on are selected by the Governing Body. Such surveys often help to clarify doubts concerning the scope or requirements of a Convention or Recommendation and sometimes pave the way for further ratifications. See also Article 19, Committee of Experts.

GENEVA GROUP The following Western UN member States: Australia, Belgium, Canada, France, Germany, Italy, Japan, Netherlands, Spain, Sweden, Switzerland, the United Kingdom and the United States. Co-chaired by the United States and the United Kingdom., this group deals with budget and fiscal issues in the UN system. Subgroups of the Geneva Group exist in the host cities of the UN specialized agencies, e.g., the Geneva Group/ILO in Geneva.

GOVERNING BODY The Governing Body (GB) is the executive council of the ILO. It directs the work of the International Labor Office and sets the agenda of the annual Conference. The GB has 56 members: 28 Governments, 14 Employers and 14 Workers. Of the Government members, ten hold permanent seats on the basis of their industrial importance. All other members are elected every three years by their respective groups during the Conference. (Note: The constitutional amendments adopted in 1986 would change the composition of the GB.) See also Article 7, States of Chief Industrial Importance, Constitutional Amendments (“Structure Package”).

GROUP OF 77 (G-77) A sometimes firm, sometimes loose association of Third World nations. Although G-77 membership has increased to 133 countries, the original name was retained because of its historical significance. See http://www.g77.org.

IMEC Industrial Market Economy Countries, roughly equivalent to OECD countries. They are: United States, Belgium, Federal Republic of Germany, France, Italy, Luxembourg, Netherlands, United Kingdom, Denmark, Ireland, Canada, Australia, New Zealand, Japan, Norway, Sweden, Finland, Switzerland, Austria, Iceland, Spain, Portugal, Turkey and Greece.

288 Glossary of ILO Terms

INDUSTRIAL COMMITTEES These committees are set up by the ILO to deal with the problems faced by some of the world’s leading industries. They are composed of representatives of governments, employers and workers in those industries. Each committee meets approximately every five to six years. The committees are: Inland Transport; Coal Mines; Iron and Steel; Metal Trades; Textiles; Petroleum; Building, Civil Engineering and Public Works; Chemical Industries; Plantations; Salaried Employees and Professional Workers; Hotel, Catering and Tourism; Wood Industries; Food and Drink Industries. The United States participates in all but the Plantations Committee.

INTERNATIONAL INSTITUTE FOR LABOR STUDIES Located in Geneva and established in 1960, the Institute specializes in higher education and research in the fields of social and labor policy. The Institute is semi-autonomous, receiving a direct subsidy from the ILO and reporting periodically to the ILO Governing Body. Ten members of the Institute’s Board are appointed by the ILO Governing Body, and the ILO Director General serves as the Chairman of the Institute Board. One American is currently serving on the Board: Professor Charles M. Rehmus, Dean of the New York State School of Industrial and Labor Relations, Cornell University.

INTERNATIONAL LABOR CODE This refers to the body of international labor standards, i.e., Conventions and Recommen- dations, adopted by the ILO Conference. See also International Labor Standards, Convention, Recommendation.

INTERNATIONAL LABOR CONFERENCE (ILC) The Conference, which meets annually in Geneva, is the legislative body of the ILO. It elects the Governing Body; adopts the ILO budget; sets international labor standards (i.e., adopts Conventions and recommendations) and reviews member States’ compliance with conventions they have ratified; and provides a global forum for the discussion of social and labor questions. Each ILO member sends two government delegates, one worker delegate and one employer delegate, as well as various technical advisors to the annual (June) sessions of the Conference in Geneva.

INTERNATIONAL LABOR OFFICE The Office, headquartered in Geneva, serves as the operating arm of the ILO, conducts studies on a broad range of labor and management subjects and directs the ILO’s sizable technical assistance program. It also serves as the “secretariat” for the Conference, Governing Body and other meetings of the ILO.

289 Appendix E

INTERNATIONAL LABOR STANDARDS Establishing and monitoring international labor standards is one of the most important functions of the ILO. Standards take the form of either Conventions or Recommendations and cover law and policy in a wide variety of subjects: labor-related human rights such as freedom of association, prohibition of forced labor and elimination of discrimination at work; vocational training and promotion of full employment; labor-management relations; conditions of work, including wages, hours and occupational safety and health; labor administration; and social security. Some of them relate to all workers, while others refer to specific groups such as young workers, migrants, women, agricultural workers or seafarers. See also Convention, Recommendation.

INTERNATIONAL OCCUPATIONAL SAFETY AND HEALTH HAZARD ALERT SYSTEM This system is designed to disseminate rapidly, through a worldwide network of competent bodies, scientific and technical information on newly discovered occupational safety or health hazards together with basic technical prevention data. The ILO serves as the central point of the network. The United States proposed the system in 1976 and since then has been actively involved in its development.

INTERNATIONAL SOCIAL SECURITY ASSOCIATION (ISSA) This international organization aims to protect, promote and develop social security throughout the world. ISSA’s offices are at ILO Headquarters in Geneva. While ISSA coop- erates closely with ILO and receives a direct subsidy from the ILO, it is an autonomous organization.

MANDATE OF ILO Improvement of the situation of workers worldwide through the setting and supervision of international labor standards, research and technical assistance. See also Politicization.

MEDIUM TERM PLAN (MTP) The MTP is a constitutionally mandated forward planning mechanism, covering a six- year period. It provides a general framework within which the ILO’s biennial Program and Budget is set. The last plan, covering the period 1990-95, marked the introduction of a budgetary review process, which called for a general discussion of program and budget parameters in the year before the submission of the biennial program and budget.

PAPER RATIFICATIONS This term describes the tendency of some governments to ratify ILO Conventions although they are unwilling or unable, from the start, to live up to their requirements.

290 Glossary of ILO Terms

PIACT Known by its French acronym, this is the ILO’s International Program for the Improvement of Working Conditions and the Working Environment. It is based on the conviction that, to be more human, work should respect the life and health of the workers, should leave them time for rest and recreation, and should enable them to serve society and to develop his potential. PIACT activities include technical cooperation, research, meetings, standard setting and information exchange in the fields of occupational safety and health and general working conditions.

POLITICIZATION Politicization occurs whenever extraneous political issues are introduced that go beyond the mandate of the ILO and seriously detract from the ILO’s substantive work, such as (1) injec- tion of polemics against foreign political, economic or social systems into discussions of substantive issues; (2) attempts to formally condemn member States, often bypassing established ILO due process procedures, e.g., through the submission of draft resolutions on extraneous political issues; (3) the use of ILO publications for propaganda purposes. See also Due Process, Resolutions Committee.

PRESIDENT’S COMMITTEE ON THE ILO A tripartite federal advisory committee which directs U.S. participation in the ILO. Chaired by the Secretary of Labor, the Committee includes the Secretaries of State and Commerce, the Assistant to the President for National Security Affairs, and the Presidents of the AFL-CIO and the U.S. Council for International Business.

PROGRAM AND BUDGET This document sets forth the ILO’s technical and administrative activities as well as expendi- tures for a two-year period. Activities are linked to the ILO’s six-year Medium Term Plan. The 1990-91 ILO budget was approximately $349.9 million (not including extra-budgetary technical cooperation activities in the order of $220 million). See also Technical Cooperation and Medium Term Plan.

PROTOCOL A limited revision of an existing Convention to adapt it to changed situations or to deal with practical difficulties of application which have emerged since the Convention was originally adopted. Through this procedure, certain non-controversial provisions may be updated in a single session of the Conference. This is in contrast to the usual double discussion procedure for revising a convention in its entirety, resulting in a new convention with a new number. Following its adoption, a protocol is open to ratification just like a convention.

291 Appendix E

QUORUM In an ILO meeting a vote is not valid if the total number of votes cast for and against is less than half the number of delegates attending the meeting and entitled to vote. Thus, a proposed resolution, for example, would be defeated if more than half the delegates were absent or abstained during the vote. The 1986 “structure package” was expected to change this formula to provide that abstentions be taken into account in calculating the quorum. See also Constitutional Amendments (“Structure Package”).

RATIFICATION Acceptance by a member State of the terms of a convention as a binding international obligation. A ratification remains binding upon a state until such time as it formally denounces it in accordance with ILO procedures. In the United States, ratification is achieved when, upon the advice and consent of the Senate, the President signs a convention. To date, the United States has ratified only nine ILO conventions. Two of those (144 and 147) were ratified in 1988 after a 35-year hiatus in U.S. ratification of ILO conventions. See also TAPILS, Convention 144.

RECOMMENDATION Recommendations serve as guidelines for national policy and often supplement Conventions. They are not subject to ratification and are therefore not binding upon member States. As of June 1988 the Conference had adopted 176 Recommendations. See also International Labor Code, International Labor Standards, Convention.

REPRESENTATION This procedure provided for in the ILO Constitution permits a workers’ or employers’ organization to formally charge that a member State has failed to effectively observe a Convention which it has ratified. Examination of the charges is carried out by a tripartite committee, composed of three Governing Body members, which reports to the Governing Body. See also Article 24.

RESOLUTIONS COMMITTEE This is a Conference committee which considers, as provided for in Article 17 of the Standing Orders of the Conference, proposed resolutions not related to an item on the Conference Agenda. It is often the scene of political debates over proposed resolutions that seek to condemn governments. See also Article 17, Due Process, Politicization.

SECRET BALLOT This method of voting was adopted in 1979 to permit Conference delegates (particularly worker and employer delegates) to vote their conscience without fear of recrimination. A vote by secret ballot may be requested by the Chairman of a group (i.e., Governments,

292 Glossary of ILO Terms

Employers or Workers) acting on behalf of his group or by a show of hands of not less than 90 delegates present at the sitting, in cases of highly political or controversial issues.

SINGLE DISCUSSION In cases of special urgency or where other special circumstances exist (e.g., very limited revision of the scope of a Convention or Recommendation) the Governing Body may, by a majority vote of three-fifths, decide to refer a question to the Conference for discussion during one session only. See also Double Discussion, General Discussion.

SOCIAL PARTNERS The term used in the ILO context to refer to workers and employers.

STATES OF CHIEF INDUSTRIAL IMPORTANCE Ten States hold non-elective permanent seats on the Governing Body: the United States, Russia, United Kingdom, Germany, France, India, Japan, Italy, Brazil and China. All other members of the Governing Body are elected every three years by the Conference. The non-elective seats for the States of Chief Industrial Importance would be abolished by the constitutional amendments adopted in 1986 (the “Structure Package”). See also Article 7, Constitutional Amendments (“Structure Package”).

TECHNICAL COOPERATION This broad ILO program of assistance to member States is primarily financed by the United Nations Development Program, multi-bilateral donors and international development financing institutions such as the World Bank and regional development banks. It is concentrated in the following major areas: (1) development of human resources, including vocation training and management development; (2) employment planning and promotion; (3) labor relations, trade union development and growth of social institutions; and (4) conditions of work and life.

TRIPARTISM The most unique feature and guiding principle of the ILO provides that each member State’s representation in the Organization is divided into three segments, with government, workers’ and employers’ representatives entitled to participate and vote separately and autonomously. Tripartism is reflected in the Conference, Governing Body, Industrial Committees, regional conferences and other meetings of the Organization, where the combined votes of workers and employers equal those of governments.

TRIPARTITE ADVISORY PANEL ON INTERNATIONAL LABOR STANDARDS (TAPILS) A subcommittee of the President’s Committee on the ILO, this panel of legal advisors from the Departments of Labor, State and Commerce, AFL-CIO and the U.S. Council for

293 Appendix E

International Business, is chaired by the Solicitor of Labor. The panel reviews U.S. law and practice with a view to determining the legal possibility of U.S. ratification of ILO Conventions. (The political decision to ratify rests with the President’s Committee.)

TURIN CENTER The ILO’s International Center for Advanced Technical and Vocational Training is located in Turin, Italy. Created by the ILO in 1965, the Center provides key personnel with training at a higher level than they can obtain in their home countries in vocational training and management development. The United States joined the Board of the Turin Center in 1984.

294 Appendix F

Glossary of Abbreviations and Acronyms

A AAMA American Apparel Manufacturers Association ACTRAV Bureau for Workers’ Activities (Bureau des Activités pour les Travailleurs) ACTWU Amalgamated Clothing and Textile Workers Union AETU All-Ethiopia Trade Union AFA Association of Flight Attendants AFL American Federation of Labor AFL-CIO American Federation of Labor and Congress of Industrial Organizations AGOA African Growth and Opportunity Act AIP/FLA Apparel Industry Partnership AIS Andean Integration System ANAD Asociación Nacional de Abogados Democráticos ANTEL Administración Nacional de Telecomunicaciones (El Salvador) APEC Asia-Pacific Economic Cooperation APLN Asia Pacific Labour Network ASEAN Association of South-East Asian Nations ASSA Attendants Association Mexico ATC Agreement on Textiles and Clothing ATPA Andean Trade Preferences Act

B BKDP Belarus Congress of Trade Unions BNP Independent Trade Union of Belarus BSEC Black Sea Economic Cooperation

CAB Conciliation and Arbitration Boards C CACR Committee on the Application of Conventions and Recommendations CalPERS California Public Employees’ Retirement System CAN Community of Andean Nations CARICOM Caribbean Community CAS Country Assistance Strategy CBERA Caribbean Basin Economic Recovery Act CBI Caribbean Basin Initiative CCALC Canada-Chile Free Trade Agreement on Labor Cooperation CCC Clean Clothes Campaign

297 Appendix F

CCE Enterprise Coordinating Council CCRALC Canada-Costa Rica Free Trade Agreement on Labor Cooperation CEB Council of Europe Development Bank CEE Central and Eastern Europe CEEAC Communaute Economique des Etats de l’Afrique Centrale CEEP European Centre for Public Enterprise CEI Central European Initiative CEPAA Council on Economic Priorities Accreditation Agency CEPR Center for Economic and Policy Research CERES Coalition for Environmentally Responsible Economies CFA Committee on Freedom of Association CIOSL Confederacion Internacional De Organizaciones Sindicales Libres CIS Commonwealth of Independent States CLC Canadian Labour Congress CLS Core Labor Standards CMC Common Market Council CMG Common Market Group COE Committee of Experts COECE Coordination of Foreign Trade Enterprise Organisms COLSIBA Latin American Coordinating Committee of Banana Workers’ Unions COMESA Common Market for Eastern and Southern Africa CONCAMIN Confederation of Chambers of Commerce COSATU Congress of South African Trade Unions CREIT Committee for Regional Economic Issues and Trade CSN National Union Federation CSWA Chinese Staff and Workers’ Association CTM Confederation of Workers of Mexico CTUCSC Coordination of Trade Union Centrals of the Southern Cone CWA Communications Workers of America

D DOL Department of Labor

E EAC East African Community EATUC East African Trade Union Congress

298 Glossary of Abbreviations and Acronyms

EATUCC East African Trade Unions Coordinating Council EBRD European Bank for Reconstruction and Development EC European Community ECE Evaluation Committee of Experts ECJ European Court of Justice ECOSOC Economic and Social Council ECOWAS Economic Community of West African States EFTA European Free Trade Area EIB European Investment Bank EPZ Export Processing Zone ESC Economic and Social Council ESCF Economic and Social Consultative Forum ETAG Ethical Trading Action Group ETI Ethical Trading Initiative ETUC European Trade Union Confederation EU European Union EWC European Works Councils

F FAT Frente Auténtico del Trabajo FDC Frente Democrático Campesino FEI Friends of the Earth International FIFA Fédération Internationale de Football Association FLA Fair Labor Association FLSA Fair Labor Standards Act FOSIDEC Fonds de Solidarité et d’Intervention pour le Développement FPU Federation of Trade Unions of Ukraine FTAA Free Trade Area Agreement of the Americas FTQ Quebec Workers’ Federation FWF Fair Wear Foundation

G GATT General Agreement on Trade and Tariffs GB Governing Body GDP Gross Domestic Product GE General Electric Company GRI Global Reporting Initiative GSP Generalized System of Preferences GUF Global Union Federation

299 Appendix F

H HRD Human Resources Development

I IBRD International Bank for Reconstruction and Development IBT International Brotherhood of Teamsters ICFTU International Confederation of Free Trade Unions ICFTU/APRO Asian and Pacific Regional Organization ICSID International Centre for Settlement of Investment Disputes IDA International Development Association IFBWW International Federation of Building and Wood Workers IFC International Finance Corporation IFI International Financial Institution IGC Intergovernmental Conference IGSS Instituto Guatemalteco de Seguridad Social ILC International Labor Conference ILO International Labor Organization ILRF International Labor Rights Fund IMF International Monetary Fund IMSS Mexican Institute of Social Security INS Immigration and Naturalization Service IOE International Organization of Employers IPR Investment Product Review ISSA International Social Security Association ITGLWF International Textile, Garment and Leather Workers’ Federation ITS International Trade Secretariat IUE International Union of Electronic, Electrical, Salaried, Machine & Furniture Workers IUF International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations

L LDCs least developed countries LPA Labor Policy Association

M MFA Multifiber Arrangement MIGA Multilateral Investment Guarantee Agency MOU Memorandum of Understanding MTP Medium Term Plan

300 Glossary of Abbreviations and Acronyms

N NAAEC North American Agreement on Environmental Cooperation NAALC North American Agreement on Labor Cooperation NACTU National Council of Trade Unions NAFTA North American Free Trade Agreement NAO National Administrative Office NATO North Atlantic Treaty Organization NGO Non-governmental organization NLRA National Labor Relations Act NLRB National Labor Relations Board NMASS National Mobilization Against Sweatshops NTUC Nepal Trade Union Congress NUPENG Nigerian Union of Petroleum and Energy Workers NYCERS New York City Employees’ Retirement System

OCAW Oil, Chemical, and Atomic Workers O OECD Organization for Economic Cooperation and Development OIC Korean Economic Organization Council OPEC Organization of the Petroleum Exporting Countries OPIC Overseas Private Investment Corporation ORIT Inter-American Regional Workers Organization ciations OSCE Organization for Security and Cooperation in Europe

PACE Paper, Allied-Industrial, Chemical and Energy Workers P International Union PRSC Poverty Reduction Support Credit PRSP Poverty Reduction Strategy Papers PSI Public Services International PVH Phillips-Van Heusen

R RCC Retail Council of Canada SA8000 Social Accountability 8000 S SADC Southern African Development Community SADCC Southern African Development Coordination Conference SAI Social Accountability International

301 Appendix F

SAP Structural Adjustment Programs SATUC South African Trade Union Congress SATUCC Southern African Trade Union Coordination Council SECI South East European Cooperative Initiative SEE Southeastern European SEECP South East Europe Cooperation Process SEIU Service Employees International Union SERLA State Labor Relations Act of 1991 SFTU Swaziland Federation of Trade Union SG11 Sub-Group 11 SGWG Sourcing Guidelines Working Group SPARTECA South Pacific Regional Trade and Economic Cooperation Agreement SPB Free Trade Union of Belarus SPOCTU South Pacific and Oceanic Council of Trade Unions STRM Sindicato de Telefonistas de la República Mexicana SUTSP Sindicato Unico de Trabajadores de la Secretaría de Pesca

TAA Trade Adjustment Assistance T TAFTA Trans-Atlantic Free Trade Area TAPILS Tripartite Advisory Panel on International Labor Standards TMB Textiles Monitoring Body TPA Trade Promotion Authority TPSC Trade Policy Staff Committee TUAC Trade Union Advisory Committee

UAW United Automobile, Aerospace & Agricultural Implement U Workers of America International Union UE United Electrical, Radio and Machine Workers of America UFCW United Food and Commercial Workers International Union UFW United Farm Workers of America UMWA United Mineworkers of America UN United Nations UNCHR United Nations Commission on Human Rights UNDP United Nations Development Programme

302 Glossary of Abbreviations and Acronyms

UNICE Union of Industries of the European Community UNITE Union of Needletrades, Industrial and Textile Employees UNT Union Nacional de Trabajadores US/LEAP United States Labor Education in the Americas Project USAID United States Agency for International Development USAS United Students Against Sweatshops USCIB United States Council for International Business USTMA The Trade Union Confederation of Arab Maghreb Workers USTR United States Trade Representative

V VER Voluntary Export Restraints

W WB World Bank WG10 Working Group 10 WRAP Worldwide Responsible Apparel Production WRC Worker Rights Consortium WTO World Trade Organization

303

Appendix G

Directory of ILO Offices

ILO Offices

AFRICA AND MID-EAST Tel (+251 1) 51.72.00 Fax (+251 1) 51 36 33 Algeria E-mail [email protected] Bureau de l’OIT à Alger 9, rue Emile Payen Kenya Algiers Advisory Support, Information Tel (+213 2) 69 12 12 Services and Training Fax (+213 2) 69 20 88 P. O. Box 60598 Nairobi Cameroon Tel (+254 2) 57 25 55 Bureau de l’OIT à Yaoundé Fax (+254 2) 56 62 34 Boîte postale No. 13 E-mail [email protected] Yaoundé Tel (+237) 20 50 44 Kuwait Fax (+237) 20 29 06 ILO Country Representative Office in E-mail [email protected] Kuwait Ibn Mesbath Street, P.O. Box 27966 Safat Congo, Democratic Republic Kuwait 13140 Bureau de l’OIT à Kinshasa Tel (+965) 243 87 67 B.P. 7248 Fax (+965) 240 09 31 Kinshasa I Tel (+243 12) 334 07 Lebanon Fax (+243 12) 375 95 24 ILO Regional Office for Arab States E-mail [email protected] Justinian Str., Aresco Center, 12th Floor Beirut Kahtari Côte d’Ivoire Tel (+961 1) 75 24 00 Bureau régional de l’OIT pour l’Afrique Fax (+961 1) 75 24 05 01 B.P. 3960 E-mail [email protected] Abidjan 01 Tel (+225 20) 31 89 00 Madagascar Fax (+225 20) 21 28 80 Bureau de l’OIT à Antananarivo E-mail [email protected] Boîte postale 683 Antananarivo 101 Egypt Tel (+261 20) 222.66.15 ILO Office in Cairo Fax (+261 20) 258 94 9 Dr. Taha Hussein Street E-mail [email protected] Cairo Zamalek 11561 Tel (+20 2) 341 01 23 Nigeria Fax (+20 2) 736 08 89 ILO Office in Lagos P.O. Box 2331 Ethiopia Lagos ILO Office in Addis Ababa Tel (+234 1) 269 39 16 PO Box 2788 Fax (+234 1) 269 07 17 Addis Ababa

307 Appendix G

Senegal AMERICAS Bureau de l’OIT à Dakar 22, rue El Amadou Assane Ndoye, B.P. 414 Argentina Dakar Oficina de la OIT en Buenos Aires Tel (+221) 823 17 89 Avenida Córdoba 950 Piso 13 y 14 Fax (+221) 821 09 56 Buenos Aires 1054 E-mail [email protected] Tel (+54 11) 4393 70 76 Fax (+54 11) 4393 70 62 South Africa E-mail [email protected] ILO Office in Pretoria PO Box 40254 Brazil Pretoria 0007 Escritorio da OIT no Brasil Tel (+27 12) 341 2170 SEN Lote 35 Fax (+27 12) 341 2159 Brasília DF 70800-400 E-mail [email protected] Fax (+55 61) 322 43 52 E-mail [email protected] Tanzania ILO Area Office in Dar es Salaam Chile 40 Ali Hassan Mwinyi Rd., P.O. Box 9212 Equipo Técnico Multidiciplinario, OIT Dar es Salaam Luis Carrera 1131, Vitacura Tel (+255 51) 266 60 24 Santiago Fax (+255 51) 266 60 02 Tel (+56 2) 201 27 27 E-mail [email protected] Fax (+56 2) 201 20 31 E-mail [email protected] Zambia ILO Office in Lusaka Costa Rica Superannuation House, Oficina de la OIT para América Central, Ben Bella Road, P.O. Box 32181 Panamá y República Dominicana Lusaka 10101 Ofiplaza del este, Edificio B-3o piso, Tel (+260 1) 22 80 71 Apartado Postal 1070 Fax (+260 1) 22 32 84 San Jose Sabanilla E-mail [email protected] Tel (+506) 253 7667 Fax (+506) 224 2678 Zimbabwe E-mail [email protected] ILO Southern Africa Multidisciplinary Advisory Team Mexico (ILO/SAMAT) Oficina de la OIT en la Ciudad de Mexico 11th Floor, Karigamombe Centre, Darwin No.31, Colonia Anzures 53 Samora Machel Avenue Mexico 11590 Harare Tel (+52.5) 50 32 24 Tel (+263 4) 781 761 Fax (+52) 50 88 92 Fax (+263 4) 759 372 E-mail [email protected] E-mail [email protected]

308 ILO Offices

Peru Fiji Oficina regional de la OIT para America ILO Office in Suva Latina y el Caribe FNPF Place, 8th Floor, P.O. Box 14500 P.O. Box 14-124 Suva Lima 14 Tel (+679) 31 38 66 Tel (+51 1) 221 25 65 Fax (+679) 30 02 48 Fax (+51 1) 421 52 92 E-mail [email protected] E-mail [email protected] India Trinidad & Tobago ILO Area Office in New Delhi ILO Caribbean Office in Port-of-Spain Theatre Court (3rd fl), India Habitat 11, St Clair Avenue, P.O. Box 1201 Centre Port-of-Spain Lodi Road Tel (+1 868) 628 14 53 New Delhi 110 003 Fax (+1 868) 628 24 33 Tel (+91 11) 460 21 01 E-mail [email protected] Fax (+91 11) 460 21 11 E-mail [email protected] United States ILO Branch Office in Washington, DC Indonesia 1828 L Street N.W., Suite 600 ILO Office in Jakarta Washington, DC 20036 UN Building, 5th Floor, 14, JI. M.H. Tel (+1 202) 653 76 52 Thamrin, P.O. Box 1075 Fax (+1 202) 653 76 87 Jakarta 10010 E-mail [email protected] Tel (+62 21) 314 13 08 Fax (+62 21) 310 07 66 Uruguay E-mail [email protected] CINTERFOR Av. Uruguay 1238, Casilla de Correo 1761 Japan Montevideo ILO Branch Office in Tokyo Tel (+598 2) 902 05 57 The United Nations Building, 8th floor Fax (+598 2) 902 13 05 Headquarters E-mail [email protected] Building 53-70, Jingumae 5-chome, Shibuya-ku Tokyo 150-0001 ASIA Tel (+81 3) 54 67 27 02 China Fax (+81 3) 54 67 27 00 ILO Office in Beijing 1-11-2 Tayuan Diplomatic Office Building, Nepal 14 Liang Ma He ILO Activities Office in Kathmandu Nan Lu, Chaoyang District Sanepa, Ring Road, P.O.Box 8971 Beijing 100600 Kathmandu Tel (+86 10) 6532 50 91 Tel (+977 1) 52 85 14 Fax (+86 10) 6532 14 20 Fax (+977 1) 53 13 32 E-mail [email protected] E-mail [email protected]

309 Appendix G

Pakistan Tel (+32 2) 736 59 42 ILO Office in Islamabad Fax (+32 2) 735 48 25 ILO Building, G.5/2 (Near State Bank of E-mail [email protected] Pakistan) P.O. Box1047 France Islamabad Bureau de correspondance du BIT à Paris Tel (+92 51) 27 64 56 1 rue Miollis Fax (+92 51) 227 91 81 Paris Cédex 15 75732 E-mail [email protected] Tel (+33 1) 45 68 32 50 Fax (+33 1) 45 67 20 04 Philippines E-mail [email protected] ILO Office in Manila MCPO Box 4959 Germany Metro Manila ILO Branch Office in Bonn Tel (+63 2) 815 23 54 Hohenzollernstrasse 21 Fax (+63 2) 812 61 43 Bonn 53173 E-mail [email protected] Tel (+49 228) 36 23 22 Fax (+49 228) 35 21 86 Sri Lanka E-mail [email protected] ILO Office in Colombo 202-204, Bouddhalka Mawatha, P.O. Box Great Britain 1505 ILO Branch Office in London Colombo 7 Millbank Tower, 21-24 Millbank Tel (+94 1) 50 05 39 London SW1P 4QP Fax (+94 1) 50 08 65 Tel (+44 171) 828 6401 E-mail [email protected] Fax (+44 207) 233 5925 E-mail [email protected] Thailand ILO Regional Office for Asia and the Hungary Pacific ILO Office in Budapest P.O. Box 2-349 Mozsar utca 14, Pf936 H-1386 Budapest Bangkok 10200 Budapest 1066 Tel (+66 2) 288 12 34 Tel (+36 1) 301 49 00 Fax (+66 2) 280 17 35 Fax (+36 1) 353 36 83 E-mail [email protected] E-mail [email protected]

Italy UROPE E ILO Branch Office in Rome Belgium Via Panisperna 28, Villa Aldobrandini Bureau de Liaison de l’OIT avec les Rome 00184 Communautés Tel (+39 6) 678 43 34 européennes et les pays du BENELUX Fax (+39 6) 679 21 97 40 Rue Aimé Smekens E-mail [email protected] Brussels 1030

310 ILO Offices

Kazakhstan Switzerland ILO Regional Adviser ILO Headquarters United Nations Office, c/o KIMEP, 4, 4, route des Morillons Abai Avenue Geneva 22 CH-1211 Almaty 480100 Tel +41.22.799.6111 Tel (+254 2) 57 25 55 Fax +41.22.798.8685 Fax (+254 2) 56 62 34 E-mail [email protected]

Poland Turkey ILO National Correspondent in Warsaw ILO Office in Ankara 1/3 Nowogrodzka Str., Room 616 P.K. 407, 06043 Ulus Warsaw 00-513 Ankara Tel (+48 22) 621.40.19 Tel (+90 312) 468 79 22 Fax (+48 22) 661 06 50 Fax (+90 312) 427 38 16 E-mail [email protected] E-mail [email protected]

Romania Office in Romania Str. Ministerului nr. 1-3, scara D, etaj 5, camera 574, sector Bucharest Tel 40 1 312.52.72 Fax 40 1 312.52.72

Russia ILO Branch Office in Moscow Petrovka 15, Apt. 23 Moscow 103 031 Tel (+7 095) 925 50 25 Fax (+7 095) 956 36 49 E-mail [email protected]

Spain Oficina de correspondencia de la OIT en Madrid c/o Alberto Aguilera, No. 15 bis 1 piso Madrid 28015 Tel (+34 91) 548 20 66 Fax (+34 91) 547 44 22 E-mail [email protected]

311

Appendix H

Directory of ICFTU Offices

ICFTU Offices

Austria ICFTU Dept. Finance and Administration ICFTU Permanent Representation 5 Boulevard du Roi Albert II, Bte 1 to the IAEA Brussels 1210 Rugierstrasse 12/30 32-02-224-0211 (tel) Vienna A - 1220 32-02-201-5815 (fax) 43-1-230-140 (tel) E-mail [email protected] 43-1-230-140 (fax) ICFTU Dept. Employment and ICFTU Permanent representative to UNIDO International Labour Standards Pokornygasse 31/19 5 Boulevard du Roi Albert II, Bte 1 Vienna A - 1190 Brussels 1210 43-1-369-1375 (tel) 32-02-224-0211 (tel) 32-02-201-5815 (fax) Belgium E-mail [email protected] ICFTU Dept. Multinationals, Organising and Recruitment ICFTU Dept. Equality 5 Boulevard du Roi Albert II, Bte 1 5 Boulevard du Roi Albert II, Bte 1 Brussels 1210 Brussels 1210 32-02-224-0211 (tel) 32-02-224-0211 (tel) 32-02-201-5815 (fax) 32-02-201-5815 (fax) E-mail [email protected] E-mail [email protected]

ICFTU Dept. Trade Union Rights Bosnia-Herzegovina 5 Boulevard du Roi Albert II, Bte 1 ICFTU Regional Office Sarajevo Brussels 1210 Ulica Valtera Perica 22 / III 32-02-224-0211 (tel) Sarajevo 71000 32-02-201-5815 (fax) 387-71-203-305 (tel) E-mail [email protected] 387-71-203-305 (fax) E-mail [email protected] ICFTU Dept. Press and Publications 5 Boulevard du Roi Albert II, Bte 1 Bulgaria Brussels 1210 ICFTU Bulgaria 32-02-224-0211 (tel) 21 Rue Damian Grouev 32-02-201-5815 (fax) Sofia E-mail [email protected] 359-2-526-756 (tel) 359-2-526-756 (fax) ICFTU Headquarters E-mail [email protected] 5 Boulevard du Roi Albert II, Bte 1 Brussels 1210 Hong Kong 32-02-224-0211 (tel) ICFTU/HKCTU Hong Kong Liaison Office 32-02-201-5815 (fax) 19/F Wing Wong Commercial Bldg., E-mail [email protected] 557-559 Nathan Road Kowloon

315 Appendix H

852-2770-8668 (tel) Singapore 068810 852-2770-7388 (fax) 65-222-6294 (tel) E-mail [email protected] 65-221-7380 (fax) E-mail [email protected] Italy ICFTU Permanent Representative Switzerland to the FAO ICFTU Geneva Office c/o UIL, Via Lucullo 6 Avenue Blanc 46 Rome I - 00187 Geneva CH-1202 390-6-47-531 (tel) 41-22-738-4202 (tel) 41-22-738-1082 (fax) Jordan E-mail [email protected] ICFTU Amman Office P.O. Box 925 875 United States Amman 11110 ICFTU/ITS Washington Office 962-6-560-3181 (tel) 1925 K St. NW, Suite 425 962-6-560-3185 (fax) Washington DC 20006 E-mail [email protected] 1-202-463-8573 (tel) 1-202-463-8564 (fax) Kenya E-mail [email protected] ICFTU African Regional Organisation (AFRO) ICFTU United Nations Office P.O. Box 67273, Ambank House 104 East 40th St., Room 404 (14th Floor) New York New York 10016 University Way 1-201-986-1820 (tel) Nairobi 1-201-972-9746 (fax) 25-42-221-357 (tel) E-mail [email protected] 254-2-215-072 (fax) E-mail [email protected] Venezuela ICFTU Inter American Regional Russia Organisation of Workers ICFTU Moscow Office Avda. Andrés Eloy Blanco, (Este 2) Ul. Zemlynov Val, 64/1 L.623 Edificio José Vargas, Piso 15 Moscow 109004 Los Caobos 7-095-915-7899 (tel) Caracas 7-095-915-7899 (fax) 58-2-578-3538-1092-2780 (tel) E-mail [email protected] 58-2-578-1702-3349 (fax) E-mail [email protected] Singapore ICFTU Asia and Pacific Regional Organisation (APRO) Trade Union House (3rd Floor), Shenton Way

316 Appendix I

Directory of Global Union Federation Offices

Global Union Federation Offices

Education International (EI) Europe

Education International Headquarters AFRICA AND MID-EAST Fred van Leeuwen General Secretary 5, bd du Roi Albert II (8th fl) Education International Brussels 1210 Belgium Thomas Bediako Chief Coordinator Phone 32 2 224-0611 B.P. 14058 Fax 32 2 224-0606 Lome Togo E-mail [email protected] Phone 228-212-841 Web site www.ei-ie.org Fax 228-212-848 E-mail [email protected] International Federation AMERICAS of Building and Woodworkers (IFBWW) International de la Educación Combertty Rodríguez García Chief Coordinator AFRICA AND MID-EAST PO Box 7174-1000 West Africa Education Office San Jose Costa Rica Abdou Ouedraogo, Coordinator Phone + 506-283.7378 01 Boite Postale 2314 Fax + 506-283.7378 Ouagadougou 01 Burkina Faso E-mail [email protected] Phone +226-30.32.53 Fax +226-30.32.53 North America and the Caribbean E-mail [email protected] Virginia Albert Coordinator Fond Assau Post Office IFBWW Middle East Project Office St. Lucia St. Lucia Mustapha Said, Coordinator Phone + 1-758-450-5840 Bourj Alkalaa Bldg, Bourj Alkalaa Street Fax + 1-758-450-5247 Beirut Manara 2036 8503 Lebanon E-mail albertv”candw.lc Phone +961-1-80 10 47 Fax +961-1-80 10 47 ASIA E-mail [email protected]

EI-Malaysia Africa Regional Office Aloysius Mathews Chief Coordinator Shakie Nhamo Museve 25, 2nd fl. Jalan Telawi Dua Bangsar Baru Acting Regional Representative Kuala Lumpur 59100 Malaysia 15 Mold Crescent, Avondale, P.O. Box A1300 Phone (603) 284-2140 Harare Zimbabwe Fax(603) 284-7395 Phone 263-479-6400 E-mail [email protected] Fax 263-473-5146 E-mail [email protected]

319 Appendix I

AMERICAS Asia and Pacific Regional Office G. Balan Nair, Regional Representative Latin America Regional Office N 7, 1st Fl, USJ 10/1G Pablo Arosemena, Regional Subang Jaya 47500 Malaysia Representative Phone (603) 738-3367 Via Fernandez de Cordoba, Vista Fax (603) 738-7721 Hermosa, local #25, Planta Alta, E-mail bgnair”pc.jaring.my Apartado 4518 Panama 5 Panama Philippine Affiliate Program Office Phone 507-229-2952/1868 Albert Emilio Yuson, Coordinator Fax 507-229-1896 6A-Fil Garcia Tower, 140 Kalayaan Avenue E-mail [email protected] Quezon City Philippines

ASIA EUROPE Pacific Sub-Regional Office IFBWW Balkans Project Officer Sarah Fitzpatrick Boyko Atanassov, Coordinator Sub-Regional Representative Uzundjovska str. no. 12 1st Fl., 500 Swanston Str., Carlton Sofia 100 Bulgaria Melbourne Victoria 3053 Australia Phone 61-3-93 49 24 88 IFBWW Headquarters Fax 61-3-93 49 25 80 Ulf Asp, General Secretary E-mail [email protected] 54, route des Acacias, P.O. Box 1412 Carouge GE CH-1227 Switzerland South Asia Sub-Regional & Projects Office B.K. Sood, Sub-Regional Coordinator International Federation of 8A/80 W.E.A Karol Bagh Chemical, Energy, Mine and New Delhi 110 055 India General Workers’ Unions Office Phone +91-11-576 03 13 Fax +91-11-575 59 31 (ICEM) E-mail [email protected] AMERICAS East Asia Sub-Regional Office ICEM Regional Office for Latin Takeo Ikawa America and the Caribbean Region Sub-Regional Representative Roque da Silva, Regional Secretary for c/o KENSETSU-RENGO Yuai-Kaikan 20-12, Latin America and the Caribbean 2-chome Shiba Minato-ku Rua Visconde de Inhauma 134, 7-andar, Tokyo 105 Japan sala 715 Phone +813-34 55 46 19 Centro Rio de janeiro CP 20094-900 Fax +813-34 53 05 82 Brazil Phone 011-55-21-518-5059 Fax 011-55-21-218-5059 E-mail [email protected]

320 Global Union Federation Offices

ICEM North American Regional Office International Federation Ken Zinn, North America Regional of Journalists (IFJ) Coordinator 888 16th Street, N.W. Suite 540 Washington, DC 20006 United States AFRICA AND MID-EAST Phone (202) 974-8080 Fax (202) 842-8084 Algeria Centre E-mail [email protected] Maison de la Presse Tahar Djaot 1, Web site http://www.icemna.org rue Bachir Attar Alger Algeria Phone 213-2-673 679 SIA A Fax 213-2-673 679 ICEM Regional Office for Asia/Pacific E-mail [email protected] Phee Jung-Sun, Regional Secretary for Asia/Pacific AMERICAS 4th Fl., Hansong Bldg. 207-1 Bangi-dong Latin America Regional Office Seoul Songpa-gu 138-050 Korea Gregorio Salazar, Latin American Officer Phone 011-82-22-234-1884 Casa Nacional de Periodistas Oficina 3, Fax 011-82-2-234-1886 piso 2, Ala “ B ” Avenida Andres E-mail [email protected] Bello, entre Las Palmas y La Salle Caracas Venezuela Phone 58-2-793 19 96 UROPE E Fax 58-2-793 28 83 ICEM Headquarters E-mail [email protected] Fred Higgs, General Secretary Avenue Emile de Beco 109 ASIA Brussels B-1050 Belgium Phone (32) 02.626.0200 Asia-Pacific Regional Office (Projects Fax (32) 02.648.4316 Activities) E-mail [email protected] Media & Entertainment Arts Alliance Web site http://www.icem.org 245 Chalmers Street Redfern 2016 Australia Regional Office for Eastern Europe, Phone 61-29-333-0999 Central Asia and Trans-Caucasus Fax 61-29-333-0933 Andre Mrost, Regional Secretary E-mail [email protected] Avtozavodskaya 6-9a Moscow 109280 Russia Tokyo Office Phone 7-095-290-4517 Yoshitane Okuda, Head of Office Fax 7-095-290-4517 Itoh Building 203 Kudan Minami 4-2-12 E-mail [email protected] Chiyoda-ku T102-0074 Japan Phone 81-3-3239 4055 Fax 81-3-3239 4055 E-mail [email protected]

321 Appendix I

EUROPE E-mail [email protected] Web site http://www.imfmetal.org European Regional Office Renate Schroeder, European Officer rue Royale, 266 ASIA Brussels B-1210 Belgium South Asia Phone (322) 219-2528 T. Dyvadheenam, Regional Representative Fax (322) 219-2976 Volga House, A Gautam Nagar, Yusuf E-mail [email protected] Sarai Commercial Complex New Delh1 110 049 India IFJ Headquarters Phone (91/11) 651 4283 Aidan White, Secretary General Fax (91/11) 685 2813 rue Royale, 266 E-mail [email protected] Brussels B-1210 Belgium Phone 32-2-223 2265 East Asia Fax 32-2-219 2976 Tsuneo Hata, Regional Representative E-mail [email protected] c/o Santoku Yaesu Bldg. 2-6-21 Yaesu, Chuo-ku Tokyo 104 Japan Phone (81/3) 3274 2288 International Metalworkers’ Fax (81/3) 3274 2476 Federation (IMF) E-mail [email protected]

AFRICA AND MID-EAST Southeast Asia P. Arunasalam, Regional Representative East and Southern Africa No. 10-3, Jalan PJS 8/4 Dataran Mentari, Ekkie Esau, Regional Representative Bandar Sunway 46150 Petaling Jaya 10th Floor, The Braamfontein Centre, Selangor Darul Ehsan Malaysia Jorissen Street Phone (603) 738 7904 Braamfontein, Johannesburg 2001 Fax (603) 738 7902 South Africa E-mail [email protected] Phone (27/11) 339 1812 Fax (27/11) 339 4761 E-mail [email protected] EUROPE IMF Headquarters AMERICAS Marcello Malentacchi, General Secretary 54 bis route des Acacias Latin America and the Caribbean Case postale 1516 Roberto Pereira, Regional Representative Geneva 1227 Switzerland Monseñor Félix Cabrera N° 14, Oficina 33 Phone (41 22) 308 50 50 Esquina Av. Providencia Fax (41 22) 308 50 55 Santiago Providencia Chile E-mail [email protected] Phone (562) 655-0474 Web site http://www.imfmetal.org Fax (562) 655-0470

322 Global Union Federation Offices

International Textile, ASIA Garment and Leather TWARO Workers’ Federation Akiko Gono, Secretary (ITGLWF) 6th Fl. Zensen Kaikam 4-8-16 Kudan Minami Chiyoda-ku 102 Japan AFRICA AND MID-EAST Phone (+81) 3 - 32 88 37 25 Fax (+81) 3 - 32 88 37 28 African Regional Consultative E-mail [email protected] Committee Jabu Ngcobo, General Secretary ITGLWF Codes of Conduct c/o SACTWU, PO Box 18235 Raja Gopal, Project Coordinator Dalbridge 4014 South Africa Goodyear Court 8, USJ14 Jalan Mulia Phone 27-31-201-0719 Petaling Jaya Selangor Darul Ehsan 47630 Fax 27-31-201-0323 Malaysia E-mail [email protected] Phone (+60) 3 - 738 87 62 E-mail [email protected] AMERICAS ITGLWF Project Management ITGLWF Policy Committee Laura Carter, Assistant General Secretary Annie Adviento, Project Coordinator 708 3rd Street Suite 509 Medalla Bldg, Gen. McArthur Nelson BC V1L 2R2 Canada Street cnr. EDSA Phone (+1) 250 - 354 20 16 Cubao Quezon City Philippines Fax (+1) 250 - 354 20 16 Phone (+63) 2 - 912 20 70 E-mail [email protected] Fax (+63) 2 - 911 13 26 E-mail [email protected] ITGLWF Maquila Organising Project Bruce Fieldman, Project Coordinator UROPE Apartado 2540 - 3000 E Heredia Costa Rica ERO Phone (+506) 262 31 82 Patrick Itschert, Secretary Fax (+506) 262 64 91 rue J. Stevens 8 E-mail [email protected] Brussels 1000 Belgium Phone (+32) 2 - 511 54 77 FITTVCC/ORI E-mail [email protected] Jose Ramirez, General Secretary Av. Miranda, entre Comercio y Piar ITGLWF Headquarters Edificio Centro Profesional “Los Andes” Neil Kearney, General Secretary Torre A, Piso 3, oficina 3D rue Joseph Stevens, 8 Cagua Estado Aragua Venezuela Brussels 1000 Belgium Phone (+58) 44 - 95 88 13 Phone (+32) 02 267 11 36 Fax (+58) 44 - 95 88 13 Fax (+32) 02 267 11 36 E-mail [email protected]

323 Appendix I

E-mail [email protected] Fax +226 43 66 10 Web site www.itglwf.org E-mail [email protected]

ITGLWF MNC’s Project ITF African Regional Office Doug Miller, Project Coordinator Ben Roxy Udogwu, African Transport House, John Dobson Street Regional Secretary Newcastle-upon-Tyne NE1 8TW PO Box 66540 Great Britain Westlands, Nairobi Kenya Phone (+44) 191 - 230 16 92 Phone 254-244-8018 Fax (+44) 191 - 232 35 04 Fax 254-244-8020 E-mail [email protected] E-mail [email protected]

ITGLWF Education AMERICAS Steve Grinter, Education Secretary Transport House, John Dobson Street ITF Inter-American Office Newcastle-upon-Tyne NE1 8TW Antonio Rodriguez Fritz, Inter- Great Britain American Regional Secretary Phone (+44) 191 - 232 35 04 Av. Rio Branco, 26-11 Andar Fax (+44) 191 - 232 35 04 Rio de Janeiro Centro CEP 2009-001 E-mail [email protected] Brazil Phone +55 (21) 233 2812 ITGLWF Health and Safety Fax +55 (21) 283 0314 Silvana Cappuccio, Health and Safety E-mail [email protected] Assistant Web site www.itf-americas.or c/o FILTEA/CGIL Via L. Serra 31 Rome 00153 Italy ITF Caribbean Sub-Regional Office Phone (+39) 06 58 33 26 78 Carril Duncan Fax (+39) 06 58 33 26 78 198 Camp Street, S Cummingsburg E-mail [email protected] Georgetown Guyana Phone +592 (2) 71197 Fax +592 (2) 50820 International Transport E-mail [email protected] Workers’ Federation (ITF) ASIA AFRICA AND MID-EAST ITF Asia Sub-Regional Office ITF African Francophone Office Mahendra Sharma, Assistant Regional Nazi Kabore, Francophone Coordinator Secretary 1450, Avenue Kwame Nkrumah, 10 BP 12D College Lane 13499 New Delhi 110001 India Ougadougou 10 Burkina Faso Phone 911-13354408 Phone +226 43 63 91 Fax 911-113354407 E-mail [email protected]

324 Global Union Federation Offices

ITF Asia/Pacific Regional Office International Union of Food, Shigeru Wada, Regional Secretary Agricultural, Hotel, Tamachi Kotsu Bldg, 3-2-22 Shibaura, Minato-ku Restaurant, Catering, Tokyo 108-0023 Japan Tobacco and Allied Workers’ Phone +81 (3) 3798 2770 Associations (IUF) Fax +81 (3) 3769 4471 E-mail [email protected] AFRICA AND MID-EAST IUF Regional Secretariat for Africa UROPE E Hella Alikuru, Regional Coordinator ETF (European Transport Workers’ Woodland House, 1st Floor, Moi Avenue, Federation) P.O. Box 11071 22 rue de Pascale Nairobi Kenya Brussels B-1040 Belgium Phone 254 2 312296/7 Phone +32 2 285 4660 Fax 254 2 312 298 Fax +32 2 280 0817 E-mail [email protected] E-mail [email protected]

ITF Headquarters AMERICAS David Cockroft, General Secretary IUF Regional Secretariat for Caribbean 49-60 Borough Road LeVere Richards, Regional Secretary London SE1 1DS Great Britain “Solidarity House,” Harmony Hall Phone +44 (020) 7403 2733 St. Michel, P.O. Box 172 Fax +44 (020) 7357 7871 Bridgetown, Barbados E-mail [email protected] Phone + 1 246 426 3492/5 Web site http://www.itf.org.uk Fax + 1 246 436 6496 E-mail [email protected] ITF Moscow Office Mikhail Lyakhov, Representative Secretaría Regional Latinoamericana c/o ITURR 21 Sadoco-Spasskaya UITA Moscow 107217 Russia Gerardo Iglesias, Regional Secretary Phone +7 095 262 29 95 c/o Wilson Ferreira Aldunate Fax +7 095 923 88 31 1229 - Oficina 201 E-mail [email protected] Montevideo C.P. 11100 Uruguay Web site www.itf.ru Phone 59 82 900 74 73 Fax 59 82 903 09 05 E-mail [email protected]

325 Appendix I

ASIA EUROPE IUF Regional Secretariat for European Federation of Food, Asia and the Pacific Agriculture and Tourism, EFFAT (IUF) Ma Wei Pin, Regional Secretary Harald Wiedenhofer, General Secretary 377-383 Sussex Street, RM 5, 8th Fl. Rue Fossé-aux-Loups, 38, Boîte no 3 Labour Council Bldg. Brussels B-1000 Belgium Sidney NSW 2000 Australia Phone + 32 2 218 77 30 Phone 612-92646409 Fax + 32 2 218 30 18 Fax 612-92618539 E-mail [email protected] E-mail [email protected] Web site http://asianfoodworker.net ICEM/IUF Education Project South-Eastern Europe IUF-Asia and Pacific, South Asia Mato Lalic, Coordinator Education Office trg. Kralja Kresimira IV br. 2/II Meena Patel, Education Coordinator Zagreb 10 000 Croatia 8/4 Tilak Apartments Phone + 385 1 465 50 24/26 Maharashtra Society, Mithakhali Fax + 385 1 465 50 24 Ahmedabad 380 006 India E-mail [email protected] Phone 91 79 644 40 47 Fax 91 79 644 40 47 Central Europe Coordination Office, E-mail [email protected] EFFAT Ildikó Krén, Coordinator IUF Project Co-ordination for Városligeti Fasor 44 Indonesia Budapest H-1068 Hungary Hemasari Dharmabumi, Coordinator Phone 36 20 330 5665 Jl. Ligar Elok no. 18 Fax 36 1 413 2118 Bandung West Java 40 191 Indonesia E-mail [email protected] Phone 62 22 2500122 Fax 62 816 131 6347 Baltic Coordination Unit E-mail [email protected] Danute Slionskien, Coordinator c/o Lithuanian Trade Union of Food IUF Japan Office Producers J. Jasinskio 9 Tomoji Misato, General Secretary Vilnius 2600 Lithuania Sanei Bldg. Annes 2F 17-11, 2-Chome, Phone 385 1 465 50 24/26 Kyobashi, Chuo-Ku Fax 385 1 465 50 24 Tokyo Nippon 104 Japan E-mail [email protected] Phone + 813 52 50 03 75/6 Fax + 813 52 50 03 74 Eastern Europe and Central Asia E-mail [email protected] Office (Moscow) Kirill Buketov, Coordinator Room 34-27, Leninsky Prospekt 42 Moscow 117119 Russia Phone + 7 095 938 86 17

326 Global Union Federation Offices

Fax + 7 095 938 81 89 AMERICAS E-mail [email protected] Web site www.trud.org/iuf/ PSI Sub-Regional Office for Brazil Jocelio Drummond, Coordinator IUF Headquarters Alameda Ja'u 796, Apto. 1007 Ron Oswald, General Secretary Sao Paulo 01420-001 Brazil Rampe du Pont-Rouge, 8 Phone 55.11.284.0840 Petit-Lancy/Geneva CH-1213 Switzerland Fax 55.11.284.0840 Phone + 41 22 793 22 33 E-mail [email protected] Fax + 41 22 793 22 38 E-mail [email protected] PSI Sub-Regional Office for Southern Cone Web site http://www.iuf.org Veronica Prado, Coordinator Las Nieves #3477 Dpto N. 95, Vitacura CL Santiago Chile Public Service International Phone 56.2.207.52.80 (PSI) Fax 56.2.245.00.85 E-mail [email protected] AFRICA AND MID-EAST PSI Sub-Regional Office for the PSI Sub-Regional Office for Andean Region Arab Countries Hector Galindo, Coordinator Ghassan Slaiby, Coordinator Carrera 66 #13B-64 Camambu Casa 15 Yachoui Center, 6th Floor, PO Box 32136 Cali, Valle Colombia LB Jal El Dib Lebanon Phone (572) 339-7954 Phone 961.4.717738 Fax (572) 325-3128 Fax 961.9.913567 E-mail [email protected] E-mail [email protected] PSI Sub-Regional Office for PSI Sub-Regional Office for Central America Southern Africa Oscar Rodriguez Leon, Co-ordinator Busang Moiloa, Sub-Regional Coordinator Apartado Postal 1867-2050, PO Box 32136 San Pedro de Montes de Oca ZA Braamfontein 2017 South Africa CR San Jose Costa Rica Phone 27.11.403.77.66 Phone 506-281.1749 Fax 27.11.403.24.79 Fax 506.281.1748 E-mail [email protected] E-mail [email protected] PSI Regional Office for Africa and Arab Countries PSI Inter-American Regional Office Teko Kpodar, PSI Regional Secretary Cameron Duncan, PSI Regional Secretary B.P. 8473 733 15th St., NW, Suite 324 TG Lome Togo Washington, DC 20005 United States Phone 228.218552 Phone 1.202.824.0880 Fax 228.212852 Fax 1.202.824.0881 E-mail [email protected] E-mail [email protected]

327 Appendix I

ASIA PSI Sub-Regional Office for Central Europe PSI Sub-Regional Office for South Asia Josef Krejbych, Sub-Regional Secretary Jay Bhan, Sub-Regional Coordinator W. Churchill Sq. 2 House No. 61, I Block, Sector 10 Praha 3 CZ 113 59 Czech Republic Faridabad Phone 420.2.24463559 Haryana 121006 India Fax 420.2.24463557 Phone 91.129.5260669 E-mail [email protected] Fax 91.129.5286198 E-mail [email protected] PSI Headquarters Hans Engelberts, General Secretary PSI Tokyo Office BP 9 Ferney-Voltaire Cedex F-01211 Katsuhiko Sato, Director France 3rd Floor, Jichiro Bldg.1, Rokubancho, Phone +33 (0)4 50 40 64 64 Chiyoda-ku Fax +33 (0)4 50 40 73 20 JP Tokyo Japan E-mail [email protected] Phone 81.3.32343270 Web site http://www.world-psi.org Fax 81 3 52755464 E-mail [email protected] PSI Sub-Regional Office for South-East Europe PSI Regional Office for Asia & Pacific Marina Irimie, Sub-Regional Secretary Albert H. Ponniah, Regional Secretary Str. Piata Amzei 10-22, Sc. B Et. 5, Ap. 26 25-2 Jalan Telawi Empat Bangsar Baru RO Bucuresti Sector 1 Romania Kuala Lumpur MY 59100 Malaysia Phone (401) 659-2559 Phone 603.22871788 Fax (401) 659-2559 Fax 60.3.22871780 E-mail [email protected] E-mail [email protected] PSI Sub-Regional Office for Russia PSI Sub-Regional Office for Oceania and Central Asia Vladimir Panchekhin, Sub-Regional Mike Ingpen, Sub-Regional Representative Secretary PO Box 3817 Lenin Avenue 42 NZ Wellington New Zealand Moscow RU 117119 Russia E-mail [email protected] Phone 7.095.9387580 Fax 7.095.9388122 EUROPE E-mail [email protected] Secretariat of the European Federation of PSI PSI Sub-Regional Office for North-East Europe Carola Fischbach-Pyttel, Director Vasyl Shylov, Sub-Regional Secretary rue Royale 45, 1st Floor Maidan Nezalezhnosti 2 Brussels BE 1000 Belgium Kiev 252012 Ukraine Phone 32.2.250.10.80 Phone 380.44.2281249 Fax 32.2.250.10.99 Fax 380.44.2281249 E-mail [email protected] E-mail [email protected]

328 Global Union Federation Offices

Union Network UNI Americas Regional Office San Jose International (UNI) Raul Requena, Joint Regional Secretary Sabana Norte del Edificio ICE 100 Norte y 50 Este, Apartado Postal 459 AFRICA AND MID-EAST Centro Colon, San Jose 1007 Costa Rica Phone 506-220-1791 UNI Abidjan Office Fax 506-220-1793 Sibailly Douhoure, Representative E-mail [email protected] Vieux Cocody, b-40, rue du Lycee Web site http://www.union-network.org/ Technique, Immeuble SCI AIGLE, UNIsite/Regions/Americas/Americas.html 01 B.P. 6811 ABIDJAN 01 Cote d'Ivoire UNI Americas Regional Office Phone 225 22 48 73 35 Rodolfo Benitez, Joint Regional Secretary Abidjan Desk Fax 225 22 48 73 65 Torre Frontenac Calle 50 E-mail [email protected] Panama City 832-0912 Panama Phone (507) 269-7164 UNI Africa Regional Office Fax 507-269-7089 Fackson Shamenda, Regional Secretary E-mail [email protected] PO Box 71760 Web site http://www.union-network.org/ Ndola Zambia UNIsite/Regions/Americas/Americas.html Phone (260) 261-2889 Fax (260) 2613054 UNI Washington Office E-mail [email protected] Jim Sauber, Representative Web site http://www.uni-africa.org.zm c/o NALC, 100 Indiana Avenue, N.W. Washington, DC 20001-2144 United States UNI Africa Harare Office Phone 202-393-46-95 Gregory Peta, Representative Washington Fax 202-737-0584 PO Box 6030 E-mail [email protected] Harare Zimbabwe Phone 263 4 78 06 18 Harare Desk Fax 263 4 75 14 04 ASIA AND PACIFIC E-mail [email protected] UNI Australia Web site http://www.uni-africa.org.zm Dan Dwyer 6 Jacob Close, P.O. Box 838 AMERICAS North Epping NSW 2121 Australia Desk Phone 61 2 98 69 16 69 UNI Buenos Aires Office E-mail [email protected] Fernando McMaster, Representative Buenos Aires UNI Apro Tokyo Office Hipolito Yrigoyen 1174 C.P.1086 Eichi Ito, Director Buenos Aires 1007 Argentina Zendentsu Kaikan 6F, 3 - 6 Phone 54 11 43 83 54 97 Kandasurugadai Desk Fax 54 11 43 83 19 56 Tokyo Chiyodaku 101-0062 Japan E-mail [email protected] Phone (+81) 332192159

329 Appendix I

Fax (+81) 332570839 UNI-Europa Graphical E-mail [email protected] Francois Ballestero, Secretary Rue de l'Hôpital, 31/Box 9 UNI Korea Liaison Council Brussels B-1000 Belgium Jay Choi, Project Director Phone (+322) 234 56 59 9F, Donga Bd. #88, Da-dong, Joong-gu Fax (+322) 235 08 62 Seoul Korea E-mail francois.ballestero@union-networ Phone 82-2-3789-1120 Fax 82-2-774-8409 UNI MEI/UNI Euro-MEI E-mail [email protected] Jim Wilson, Director Web site http://www.union-network.org/ Rue de l'Hôpital, 31/Box 9 UNIsite/Regions/Asia_Pacific/ Brussels B-1000 Belgium Asiapacific.html Phone (+322) 234 56 50 Fax (+322) 235 08 61 UNI Asia & Pacific Regional Office E-mail [email protected] Christopher Ng, Regional Secretary 170 Upper Bukit Timah Rd 14-03 Bukit UNI Bucarest Office Timah Shopping Centre Patrick Massart, Representative Singapore 588179 Singapore 3 Str. Stefan Cel Mare Phone ( 65) 467-7888 Bucarest Secteur 1 Romania Fax ( 65) 468-1410 Phone (401) 619 31 65 E-mail [email protected] Fax (401) 210 30 72 Web site http://www.apro.techno.net.au E-mail patrick.massart@union- network.org UNI Sri Lanka Office Basil de Silva, Regional Executive Secretary UNI Moscow Office 96/8 Colombo Road Olga Vinogradova, Representative Negombo Sri Lanka Room 22-53, Build. 2, 42, Leninsky Phone (+94) 3133075 Prospect Fax (+94) 3133066 Moscow 117 119 Russia E-mail [email protected] Phone 7 095 930 99 55 Fax 7 095 938 75 77 EUROPE E-mail olga.vinogradova@union-network UNI-Europa Regional Office UNI Headquarters Bernadette Tesch-Ségol, Regional Secretary Philip Jennings, General Secretary Rue de l'Hôpital, 31/Box 9 8-10 Avenue Reverdil Brussels B-1000 Belgium CH - 1260 Nyon 2 Switzerland Phone (41) 22 365 21 00 Phone (+322) 234 56 56 Fax (41) 22 365 21 21 Fax (+322) 235 08 70 E-mail [email protected] E-mail [email protected] Web site http://www.union-network.org Web site http://www.union-network.org/ UNIsite/Regions/Europa/Europa.html

330 Bibliography

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