Sunday, October 29, 2017

Comment on UN Women's E-Discussion: How Can Grant Making Better Support Women’s Civil Society?

The October 2017 Empower Women E-Discussion focuses on the question "How Can Grant Making Better Support Women's Civil Society"?  My intervention focuses on maquiladora workers' campaign for employer-sponsored child care in Central America.

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One area in which grant makers can make a big difference in tackling all three issues (Leaving No One Behind, Capacity Development, and Learning from What Doesn't Work) is by supporting workplace-sponsored child care in low and middle income countries.  

A case in point is the current campaign by maquiladora (export processing zone) workers in Central America.  Local women's advocacy groups and trade unions are advocating that their employers and international brands follow laws in Honduras, El Salvador and Guatemala to establish employer-sponsored child care.  

On October 12, 2017, the International Finance Corporation (IFC) issued a report Tackling Childcare The Business Case for Employer-Supported Childcare.  This excellent report reinforces the campaign by providing data demonstrating how workplace-sponsored child care can be good for business.  The report discusses 10 original in-depth case studies that show how employers in blue, pink and white collar companies have made workplace-sponsored child care work in low-, middle- and high-income countries.  This is a report that women's and children's advocates - including Corporate Social Responsibility advocates within companies - can take to skeptical CEOs, CFOs and Boards of Directors to persuade them to fund and implement workplace-sponsored child care.

As discussed in my piece in IntLawGrrls IFC report on business case for workplace childcare reinforces maquiladora workers’ campaign in Central America, workplace-sponsored child care plays an important role not only for companies and their employees, but for society in general.  The IFC, OECD and Inter-American Development Bank (IADB) have all pointed to the importance of early childhood education to the development of young minds - and to the lack of good early childhood education programs in many low- and middle-income countries.

This is an area where grant makers can make a difference.  While the IFC shows how workplace-sponsored child care benefits the bottom line of company coffers (reduction of absenteeism, for example, or attracting new business as a result of good practices), there are significant start-up and other costs involved in setting up workplace-sponsored child care programs.  Companies in low- and middle-income countries will have a difficult time coming up with these initial costs - especially in low margin industries where women predominate, like garment manufacturing and agriculture.  International brands can support workpace-sponsored child care with both funding and purchasing policies that favor suppliers with workplace-sponsored child care.  Other international companies can support workplace-sponsored child care programs through education grants and their Corporate Social Responsibility programs.  


International grant makers can play a unique role in funding both initial start-up costs for and programs supporting workplace-sponsored child care.  Examples include:
  • Funding needs assessments, surveys and focus groups of working parents to learn about what kind of programs they want and need (Disney funded a needs assessment in Central America through local women's groups and facilitated by Canada-based Maquiladora Solidarity Network
  • Funding dialogue between local workers, worker representatives, women's rights groups, employers, international brands and governments to ensure that child care programs are feasible and meet workers' and children's needs;
  • Developing programs that provide companies and trade unions with guidance on how to establish effective workplace-sponsored child care programs that meet workers' needs and children's educational needs;
  • Developing programs to provide workforce development training and certification programs for childcare providers at varying education levels;
  • Supporting secondary and university-level Early Childhood Education programs in low-income and middle-income countries;
  • Funding legal research on the development of national laws that create the best legal environment to support workplace-sponsored child care;
  • Funding initial start-up costs for workplace-sponsored child care programs.
Working women in Central America have challenged their employers and governments to follow national laws to implement employer-sponsored child care programs.  International grant makers can help working women, employers, governments and the global CSR community to meet that challenge.

Tuesday, October 24, 2017

IFC report on business case for workplace childcare reinforces maquiladora workers’ campaign in Central America

MSN 2016
MSN 2016

Simultaneously published on IntLawGrrls.

Lack of quality, affordable child care is a significant concern for working parents in every region in the world, regardless of country or socioeconomic status.  According to the 2017 OECD report The Pursuit of Gender Equality An Uphill Battle, single parents - usually working moms - in the U.S. and Ireland pay up to 45% of their disposable income for affordable childcare.  In countries like Honduras, El Salvador and Guatemala, the lack of quality, affordable child care is just one of several challenges to leveraging working people and entire countries out of poverty.  Other challenges include the lack of adequate social security provisions and inadequate or non-existent early childhood education programs.  Authors of the 2016 IADB study Cashing in on Education: Women, Childcare and Prosperity in Latin America and the Caribbean argue that the key to boosting Latin American countries out of poverty is female labor force participation - and that child care and early childhood education are key policy measures to move more women into paid work outside the home.  Social security contributions made by working women and their employers strengthen social security systems in poorer countries - and reducing pay gaps between women and men would strengthen social security systems even more.
 
Maquiladora workers, trade unions and women's rights activists in Honduras and El Salvador made workplace funded child care a key platform in their workplace advocacy campaign in 2014.  With the collaboration of Canada-based Maquiladora Solidarity Network, they have focused their advocacy efforts on international apparel brands, industry associations and governments to develop and implement viable childcare solutions.

As outlined in MSN's  guide to legal requirements and international conventions Childcare in Central America, labor laws in Honduras, El Salvador and Guatemala require employers to provide child care facilities for their employees.  In 2014, the Government of Honduras, Honduran trade unions and the Honduran Manufacturers Association entered into a tripartite agreement to work on establishing some form of employer-provided child care program for textile manufacturing workers.  Employers have been slow to fund child care centers due to cost and capacity factors as well as lack of clarity in Honduran law - stalling the process.

IFC Tackling Childcare p. 21
IFC 2017, p. 21 
Reinforcement for Central American maquiladora workers' campaign for employer-provided child care has come from an unexpected source.  The IFC's new report  Tackling Childcare The Business Case for Employer-Supported Childcare uses case studies to show that not only is sponsoring child care programs the right thing to do, it is the right thing to do to succeed in business.  As expected, the case studies examined include white collar employers in the IT, financial services, and healthcare industries in wealthy countries like the United States, Japan and Germany.  More to the point to maquiladora workers in Central America, the case studies include blue collar employers in garment manufacturing, agriculture and heavy manufacturing industries in low- and middle-income countries like Jordan, South Africa, Turkey and Brazil.  In fact, the IFC report emphasizes the heightened need for high quality employer-sponsored child care in low income countries, where lack of access to quality early education and care programs can have a long-lasting negative impact on the growing minds of children - and where the economic security of families is threatened when parents must choose between working to provide for their families or staying at home to care for their children.

The report shows that investing in child care improves employee performance by reducing absenteeism, enhancing worker productivity, and increasing employee commitment and motivation.  The positive impression and improved  company reputation resulting from providing quality child care can help companies recruit and retain good employees.  In countries like Honduras, El Salvador and Guatemala where employer-sponsored childcare is a legal requirement, companies can attract more international business by showing their compliance with local laws.  Thus, making an investment in child care programs can be an income generator for companies.

From a practical standpoint, many companies and employers do not know where to start even if they want to implement a child care program.  CSR advocates within companies need the data and information to persuade CEOs, CFOs and Boards of Directors that the investment is needed.  Establishing and maintaining a workplace child care program isn't cheap.  At the launch of Tackling Childcare, Farhan Ifram, the CEO of Jordanian garment manufacturer MAS Kreeda, observed that the initial investment in his company's child care center was close to $100,000.

This is where the IFC's report will be truly useful.  Not only does the report contain evidence that can be used to persuade skeptical company boards and officials that sponsoring child care is good for the bottom line - it contains advice on what steps companies must take to develop child care programs that are both high quality and meet the needs of employees.  A key element  to developing a good child care program is working with employees and their representatives to ensure the program meets their needs personally and culturally.  The report pays attention to the needs of child care workers for training, certification and decent pay and working conditions.  Accommodations must be made in situations where workers currently pay family members and neighbors for child care to ensure there are not unintended negative impacts on extended family and neighborhood economies.

Finding the funding to establish high quality child care centers is a significant challenge, but one that can be overcome.  In the Central American case, international brands can be a source of support for suppliers that take the plunge to establish child care programs - both financially (for example, through one-time start-up grants) and through increased business.  International brands do not have to provide all the financing and support, however.  Tackling Childcare points to a reframing of broader existing CSR culture.  In 2013, Fortune 500 companies spent $15.2 billion on CSR initiatives.  Of that, $2.6 billion was spent on education - in both CSR contributions and grants.  If even one tenth of that amount were spent on grants for employer-sponsored child care program start-ups, workers at over 3,000 garment factories would benefit directly - with untold benefits for the education and health of working parents and children.  Working women, their trade unions and women's rights advocates in Central America have taken the lead in the campaign for employer-sponsored child care in their countries.  It is time for their employers, international brands, and the international community to accept the challenge - and be models for the rest of the world.

Saturday, September 9, 2017

Maquiladora Solidarity Network publishes must-read briefing paper on labor reforms to Mexico's Consitution

In July 2017, the Maquiladora Solidarity Network published a must-read briefing paper on recent labor reforms to Mexico's Constitution.  Approved by the Mexican Congress in October and November 2016 and by a majority of Mexican state legislatures in January 2017, these reforms resulted from conditionalities imposed on Mexico as part of the Trans-Pacific Partnership negotiation process and decades of advocacy and pressure by Mexican and international labor and human rights activists.  They went into effect in February 2017.

The purpose of the constitutional labor reforms is to remove legal obstacles to workers' right to organize democratically to negotiate collective bargaining agreements, eliminate the corrupt employer practice of negotiating protection contracts with unrepresentative unions, and to completely revamp Mexico's labor justice system so that it is independent, fair and transparent.

MSN clearly and cogently outlines the new reforms, discusses the 2016 reforms in the context of Mexico's 2012 labor law reform project, and provides an insightful analysis of what comes next in the legislative process and the coming challenges and risks in implementing the reforms.  One major challenge that remains is the dissolution of tri-partite labor and conciliation boards in order to replace them with impartial federal and local labor courts - and what to do with existing labor board functionaries who may either lose their jobs or transfer undesirable institutional cultural practices to the new labor court system.  One key risk is the possibility that labor justice reforms will stall without full implementation in the face of legislative opposition from employer groups and insufficient pressure from the U.S. Trade Representative in the current NAFTA renegotiation process.

MSN recommends that international brands, employers, trade unions, worker support groups, human rights organizations and the international community continue to support Mexico's labor reform process and encourage the Mexican government to approve implementing legislation that is true to the underlying spirit and intent of the Constitutional Reform.  MSN's July 2017 briefing paper provides the perfect foundation for this work.

Shout outs in Workplace Law and Workers' Comp Law blogs

A Little Bit of Lime (well, IntLawGrrls) got shout outs in the Workplace Law and Workers' Comp Law blogs this week for a piece on making the human rights case for keeping the right to compensation for workplace injuries in the NAFTA.  Hopefully this will draw more attention to the need to ensure that immigrant workers receive proper compensation when they are injured on the job instead of being detained, jailed, deported or worse.

Sunday, September 3, 2017

Making the human rights case for including compensation for workplace injuries in free trade agreements

My recent piece on IntLawGrrls on making the human rights case for including compensation for workplace injuries in free trade agreements is reproduced here.

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According to lore, laws requiring compensation for workplace injuries came about as a Grand Bargain between workers and employers.  In exchange for limited liability, employers would ensure that workers receive medical care and wage benefits for workplace injuries without having to prove that the employer was at fault.  This bargain has become frayed and tattered over the last few decades as employers and insurers find ways to shirk their responsibility toward injured workers.  This is especially the case when it comes to immigrant workers, as evidenced by two hair raising reports published by Pro Publica and The New York Times in recent weeks.

For many undocumented workers in the U.S., suffering a workplace injury can lead to detention, deportation and worse, as reported by Michael Grabell and Howard Berkes in their August 16, 2017 Pro Publica article, They Got Hurt at Work. Then They Got Deported.  Although public policy and extensive case law in the U.S. guarantee workers' compensation coverage for undocumented immigrants, insurers have found a way to avoid paying claims by reporting injured workers to federal immigration authorities. Grabell and Berkes tell the story of father of three who spent a year and a half in jail and immigrant detention before being deported after suffering a severe back injury due to a fall at work.  After the worker's doctor recommended expensive back surgery, his employer's insurer reported him to U.S. Immigration and Customs Enforcement (ICE) for using a false social security number.  Other workers find themselves ambushed by ICE agents after giving depositions at their lawyer's office or attending hearings.  One mother of three who had been in the U.S. since she was a teenager spent years in jail and immigration detention after suffering a workplace injury, only to learn upon finally being released that the father of her children sexually abused their 10-year-old daughter.

Having legal documentation is no guarantee that immigrant workers receive proper compensation for workplace injuries.  In his August 13, 2017 New York Times article Foreign Farmworkers in Canada Fear Deportation if They Complain, Dan Levin reported the story of a father of four from Jamaica who worked in Ontario for 9 seasons under a Canadian temporary agricultural labor program until he was sent home in 2008 after hurting his back while picking peaches.  Although he was permanently disabled, compensation for his injury ended in 2011 because he would be physically able to work as a cashier in Ontario - despite being ineligible for a Canadian work visa and unable to obtain a visa to appear in a hearing appealing the decision.  Migrant workers with temporary labor visas in the U.S. often find themselves uninvited to return to work in the U.S. after they suffer workplace injuries or complain about workplace conditions, encountering extensive cross-border administrative and legal complications when they try to obtain compensation rightly owed them under the law.

In addition to rupturing a century-old Grand Bargain between employers and workers, utilization of federal immigration procedures to avoid full payment of workers' compensation claims is a violation of the human rights of immigrant workers.  In November 2016, the Inter-American Commission on Human Rights publicly released a report defining the right to compensation for workplace injuries as being within the scope of human rights protection.  In its report on the merits in the case of Leopoldo Zumaya and Francisco Berumen Lizalde, two undocumented  workers who were deported after making workers' compensation claims, the IACHR found the U.S. to be in violation of its human rights obligations under the 1948 American Declaration of the Rights and Duties of Man.

In particular, the IACHR found that the U.S. violated the undocumented immigrants' rights under Article II (right to equality before the law) and Article XVI (right to social security).  In the case of Mr. Lizalde (who, unlike Mr. Zumaya, received no compensation before being deported), the Commission found that the U.S. had violated Article XVII (right to recognition of juridical personality) and Article XVIII (right to a fair trial).  In its legal analysis, the IACHR concluded that the right to equal protection applies to nationals and non-nationals alike regardless of their legal status and authorization to work.  The Commission also observed that workers' compensation programs fall within the definition of "proper conditions" of work under Article 45(b) of the OAS Charter, defined as those that "ensure life, health, and a decent standard of living for the worker and his family..."  These rights apply when the State allows private persons (such as insurers and employers) to act with impunity toward the human rights of others.  Though not integral to its analysis, the IACHR mentioned that countries have an obligation to protect the physical integrity of people within their jurisdiction.

One surprising source of rights cited by the IACHR was the 1994 North American Agreement on Labor Cooperation (NAALC), the supplemental labor accord to the North American Free Trade Agreement (NAFTA).  Under the NAALC, the U.S., Canada and Mexico agreed to promote 11 labor principles, including workplace safety; compensation for workplace injuries and illnesses; and protection of migrant workers.

NAFTA is the only U.S. free trade agreement that includes workers' compensation in its definition of labor law - though Canada continues to include workers' compensation in its FTA labor provisions.  In addition to requiring effective enforcement of labor laws, the NAALC contains cooperative mechanisms that could be used by member states to address the complications that arise in the case of cross-border workers' compensation and other labor cases involving immigrant workers.  Employers and insurers that shirk their obligation to injured workers transfer the cost not only to the injured worker herself, but to the health care system of her country of origin.

Currently, the U.S. NAFTA re-negotiation goals do not mention incorporation of workers' compensation or protection of migrant workers - but they should.  Labor provisions in FTAs contain mechanisms that can enhance member states' ability to protect human rights.   While imperfect, the NAALC and labor provisions in other FTAs provide a forum for public petitions and inter-governmental dialogue on important cross-border labor issues.  They have the as yet under-utilized potential to address the kinds of failures in justice administration immigrants encounter. NAFTA re-negotiators should remember that there is nothing more fundamental to a worker and our shared global economy than the integrity of her body and mind - and act accordingly to ensure that workers' compensation is included among the labor rights protected in any re-negotiated agreement.

Sunday, August 13, 2017

Aspinwall's refreshing proposal for strengthened NAFTA labor and environmental institutions deserves serious consideration

Mark Aspinwall, author of the must-read 2013 book Side Effects: Mexican governance under NAFTA’s labor and environmental agreements, argues in his August 10, 2017 Forbes piece Learning From The Experience Of NAFTA Labor And Environmental Governance that NAFTA negotiators should create a neutral inter-governmental body to address labor issues under NAFTA similar to the currently existing North American Commission for Environmental Cooperation.

There are three key elements to Aspinwall's proposal, emphasizing the independence of any multi-lateral agency established.  One, the inter-governmental agency should have mechanisms to receive complaints from affected civil society groups in any member state.  Two, the inter-governmental agency should have authority to conduct independent fact-finding investigations and issue reports under specific rules.  Third - and most importantly, since this element is present in the current NAFTA environmental side agreement but not the labor side agreement - civil society should have a permanent role in the functioning of the inter-governmental agency.  Aspinwall highlights that civil society should be involved not only in forming priorities and work plans but in participating in compliance oversight of the new inter-governmental agency.

Aspinwall's proposal is compelling and his arguments should be given serious consideration.  He rightly points out that the government-to-government dispute mechanism established under the current NAFTA labor side agreement (and, it should be pointed out, every free trade agreement negotiated by the U.S. since) is problematic because of politics and the inevitable conflicts of interest that result from international and national political priorities.  On the one hand, a government may not want to pursue a particular issue because of its relationship with the other member state.  Similarly, a government may simply not have the interest or political will to pursue labor rights issues.

As Aspinwall points out, there was relatively strong interest under the Clinton administration from 1995 to 2000 to press Mexico on trade union and working women's rights.  This interest and related political will waned during the Bush II administration from 2001 to 2008 - causing a severe drop-off in the amount of interest on the part of Mexican trade unions and civil society in using the NAFTA labor side agreement (NAALC) as an advocacy tool.  Despite the increased political will of the Obama administration to act creatively and sometimes forcefully in response to complaints filed under labor chapters of free trade agreements, Mexican trade unions and civil society had already moved away from the NAALC.  Cross-border labor and civil society movements did not fade with the NAALC.  They simply moved to other venues where they felt their efforts were more likely to have an effect - including the OECD Guidelines for Multi-National Enterprises, the ILO Committee on Freedom of Association, multi-stakeholder initiatives, independent labor and human rights commissions, and the negotiating arena of the Trans-Pacific Partnership.  Much of the hard work of pressuring the Government of Mexico to implement meaningful labor justice reform occurred during the TPP negotiations.

Aspinwall's argument for an independent labor commission under NAFTA is refreshing because it may almost seem like a quaint, idealistic idea to those who have worked in NAFTA labor arena.  The sad fact is that the politics he so correctly highlights in his analysis of government-to-government dispute settlement can also infect and weaken inter-governmental institutions - as was the case with the now closed North American Commission for Labor Cooperation.  Convincing North American labor policy makers, trade unions, civil society, and employer groups that a new Commission for Labor Cooperation is a good idea - even an independent and publicly accountable Commission - will be a hard slog and will require overcoming deep layers of skepticism.

The example of the North American CEC's Joint Public Advisory Committee shows that the effort of bringing disparate groups together for genuine dialogue and community building can be worth it.  The idea of independent fact-finding and reports in response to labor issues raised under free trade agreements is particularly compelling given recent developments in the trade and labor arena in 2017.  Two developments that put U.S. trade and labor policy implementation into jeopardy are the recent U.S. loss to Guatemala in arbitration of Guatemala's labor violations under the CAFTA-DR and the recent change in presidential administrations.  While the current administration makes a public show of emphasizing enforcement of free trade labor provisions, its budget proposals make this all but impossible financially.

The problem is determining what entity will serve as the honest broker and neutral convener of the kind of genuine North American labor dialogue and institution building that Aspinwall proposes. The current administration seems like an unlikely convener.  As observed by Aspinwall, the current administration's NAFTA negotiation objectives for the environment will actually weaken the CEC by creating rules to guarantee domestic enforcement without independent review.  As I have pointed out elsewhere, the negotiation goals for labor are almost purely cosmetic and actually narrow the number of labor laws subject to sanctions.  Maybe the Wilson Center and the Mexican Center for Economic Research and Study can get the dialogue going.

Sunday, July 23, 2017

U.S. negotiation objectives for New NAFTA: Labor no longer separate, but still unequal

This piece was simultaneously posted on the HuffPost.

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Publicly, American workers are the focus of the much-touted renegotiation of NAFTA announced by USTR in May. The first round of negotiations begins on August 16, 2017. USTR’s NAFTA negotiation objectives, released on July 17th, place the American worker front and center, observing that trade deficits and factory closures created by NAFTA have left American workers economically stranded. Such bold rhetoric might lead observers to believe that the administration’s negotiation objectives for labor provisions in NAFTA will be equally bold. Sadly, this is not the case.

NAFTA’s 1994 labor side agreement – the North American Agreement on Labor Cooperation or NAALC – has been criticized for (1) inadequate dispute resolution mechanisms; (2) not including the core labor standards of Freedom of Association, Right to Collective Bargaining and Right to Strike in NAALC’s full panoply of dispute resolution mechanisms; (3) setting a benchmark for enforcement of existing national laws rather than international labor standards; and (4) failing to result in meaningful change in workers’ lives in North America.

Criticism of the NAALC and imperfect implementation and application by policy makers have obfuscated the agreement’s strengths. NAALC is the only international labor agreement that is fully binding and readily enforceable on the United States. Over 25% of NAALC petitions filed since 1995 have been filed with Mexico about ineffectual enforcement of labor laws in the United States. NAALC’s definition of labor law covers 11 labor principles and is arguably broader than the definition in subsequent U.S. FTAs. In addition to covering minimum wage standards, occupational safety and health and the core labor standards outlined in the 1998 ILO Declaration on Fundamental Rights at Work, NAALC covers compensation for workplace injuries and equal labor protection for migrant workers. Surprisingly, NAALC’s gender protections are stronger than those in CAFTA-DR, which does not extend its dispute resolution provisions to the elimination of workplace discrimination and guarantee of equal pay for women and men in Central America. Finally, NAALC’s public communication process allowing members of civil society to file petitions alleging a member state has failed to effectively enforce labor laws has been duplicated in every subsequent U.S. FTA since.

Labor advocates have criticized NAALC on the “Separate and Unequal” standard, arguing that workers are not afforded the same mechanisms and remedies afforded to businesses and other member states under NAFTA’s business-to-state and state-to-state international arbitration procedures. Instead, NAALC provides for a public petition process (leading to a public report and government discussions); the possibility of the establishment of an Evaluative Committee of Experts (ECE) to issue a neutral report analyzing subjects raised in petitions; and finally, the potential for international arbitration and limited trade sanctions.

Following the pattern of every U.S. FTA negotiated since the 2000 U.S.-Jordan FTA, USTR’s current proposal is that labor provisions will be benchmarked to international labor standards, brought into the core NAFTA text, and subject to the same government-to-government arbitration mechanisms as other NAFTA disputes. This may seem like an advancement intellectually. In practice, realization of the fantasy of using international trade arbitration to address issues raised under FTA labor provisions has left much to be desired. On June 26, 2017, it was announced that the U.S. lost to Guatemala in the very first international trade arbitration resulting from a petition arguing that Guatemala failed to comply with its labor obligations under CAFTA-DR. First filed in April 2008, the Guatemala CAFTA-DR labor petition took over 9 years to wend its way to this ignominious conclusion.

NAALC also suffers from the Separate and Unequal standard when it comes to treatment of different labor principles under its dispute resolution mechanisms. Not all 11 labor principles are subject to the fully panoply of dispute resolution under the NAALC. A NAALC arbitral panel can only be requested in the case of petitions relating to occupational safety and health, child labor or minimum wage standards.

This shortcoming is not addressed in USTR’s 2017 proposal. In its NAFTA renegotiation objectives, USTR vows to “[e]stablish rules that will ensure that NAFTA countries do not fail to effectively enforce their labor laws implementing internationally recognized core labor standards and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health laws.” USTR’s proposal actually narrows the scope of dispute resolution under New NAFTA by not including child labor as one of the listed subjects eligible for international arbitration.

In fact, USTR’s NAFTA re-renegotiation objectives set a tougher standard for proving a violation of labor obligations in international arbitration than that set in the NAALC. Under NAALC, a case may be subject to arbitration if a member state’s failure to effectively enforce labor laws is “trade-related.” The proposed standard in the renegotiation objectives is failure to effectively enforce “through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the parties.” This is similar to the standard set in CAFTA-DR – which turned out to be insurmountable for USTR in the CAFTA-DR Guatemala labor arbitration case - not to mention for trade unions, civil society groups and workers of limited means.

It is not just that USTR’s labor-related NAFTA renegotiation goals fail to address NAALC’s most obvious flaws, eliminate some of NAALC’s positive attributes and duplicate past labor-related trade negotiation objectives. New NAFTA will never address serious labor market policy failures by the U.S. and its North American neighbors to address job loss and economic decline that result not only from free trade but technological and economic change. New NAFTA is just Old NAFTA in new clothes.

Like it or not, the current administration must recognize that Zero Sum We Win-You Lose strategies will not heal what ails the American workforce. Negotiation of a New NAFTA that better serves America’s workers requires a truly bold approach, not regurgitation of the same old approaches. It should improve NAFTA’s labor standards and dispute resolution mechanisms and incorporate measures that empower Mexico, Canada and the U.S. to engage in serious regional employment policy development and human and physical infrastructure investment. It means that the U.S. must cooperate with Canada and Mexico to find ways to improve educational and labor market outcomes on both sides of both borders. It also means looking to bold ideas like those expressed in Stephen Zamora’s 2008 article A Proposed North American Regional Development Fund: The Next Phase of American Integration under NAFTA.

Some concrete proposals to improve the negotiation objectives for the New NAFTA include:

  • Exploration of the idea of incorporating the Evaluative Committee of Experts process in the dispute resolution mechanism as an intermediate step on the way to arbitration in order to provide arbitrators with a common factual and labor standards basis for analyzing the facts in arbitral proceedings;
  • Incorporation of the 2016 Trilateral M.O.U. Promoting Women’s Entrepreneurship and the Growth of Women-Owned Enterprises in North America into NAFTA’s text and expansion of the M.O.U. to promote women’s empowerment in the workplace and society as outlined in the 2012 US-Mexico M.O.U. on Women’s Economic Empowerment;
  • Removal of the insurmountable standard of proving a country has failed to effectively enforce labor law “through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the parties” from the New NAFTA negotiation proposal;
  • Expansion of NAFTA’s dispute resolution and arbitral provisions to cover all labor standards covered by the definition of labor law, including: collective labor rights; the elimination of workplace discrimination and guarantee of equal pay for equal work for women and men; elimination of forced labor; and elimination of child labor;
  • Explicit retention of compensation for workplace injuries in the list of labor laws covered by NAFTA;
  • Strengthening of cooperative mechanisms in NAFTA to allow for the development of a North American Employment Policy and Jobs Strategy similar to the European Employment Strategy – including the participation of large and small employers, trade unions, women’s rights groups and other members of civil society;
  • Retention of the labor principle requiring equal treatment for migrant workers; and
  • Development of a North American Investment Fund to help employers and workers adapt to economic and labor market changes caused by free trade as well as technological and economic change.
Other proposals to consider that are currently outside the U.S. trade policy development framework include:

  • Requirement that the U.S. conduct a Human Rights Impact Assessment (HRIA) and Women’s Rights Impact Assessment (WRIA) of New NAFTA before it is implemented, in addition to the labor and environmental studies already required by Congress; and
  • Incorporation of human rights and rule of law provisions in the New NAFTA.

These proposals do not even capture the kind of bold rethinking that needs to be done with respect to renegotiation of NAFTA. Clearly, the administration and we as a country and region are not “there” yet.

Wednesday, July 5, 2017

Is it 1917 or 2017? Wobblies lose campaign for sick leave at U.S. sandwich chain

This July 3, 2017 article in the Minneapolis Star Tribune captured my attention because of the incongruous tale of the Wobblies - the Industrial Workers of the World, first established in 1905 - losing a campaign to unionize a local Jimmy Johns sandwich restaurant and obtain sick leave for its employees.  Wait, what?  Is it 1917 or 2017?  The Wobblies are still actively organizing workers?  According to the Wobblies' web site, no, they did not disappear in 1917.  After a resurgence about 40 years ago, they seem to have a number of active campaigns throughout the United States - an indicator that we may be in another gilded age.

Of course there's that other thing that hasn't changed in the U.S. in the last century.  Most Americans don't have the legal right to or access to paid sick leave.  According to a July 2016 report released by the U.S. Bureau of Labor Statistics, among the poorest 25% at the lower end of the labor market only 41% have access to paid sick leave.  Access to sick leave increases as wages increase.  Among workers in the top 25% of the labor market, 87% have access to paid sick leave.

The federal appellate court decision reported on in the Star Tribune article criticized workers for being "disloyal" because they posted images on Facebook showing that customers don't know if a sandwich was made by a healthy worker or a sick worker bringing germs to work because she can't afford to stay home because she doesn't have paid sick leave.

Wobblies in Minneapolis are not the only ones making the argument that paid sick leave is necessary for the health and well being not only of workers but of the public as well.  In a 2010 report issued by the World Health Organization (WHO), The case for paid sick leave, Xenia Scheil-Adlung & Lydia Sandner wrote, "In fact, the absence of paid sick days forces ill workers to decide between caring for their health or losing jobs and income, choosing between deteriorating health and risking to impoverish themselves and often their families."  They also point out that a number of workers throughout the world without paid sick leave worked even after they contracted the H1N1 virus, causing over 7 million other Americans to contract the virus.  The U.S. Centers for Disease Control (CDC) also came out in a 2012 article arguing that paid sick leave is needed to protect public health and safety. Think of that next time you head to the local burger chain around the corner for an illicit unhealthy midnight snack.  

According to Scheil-Adlung and Sandner, 145 countries around the world - a group among which the U.S. will not be found - have laws ensuring between 7 and 30 days of paid sick leave to workers each year.  Granted, high rates of employment outside the formal economy in some countries mean that the legal requirement does not extend to as many people as it should.  It cannot be denied, however, that paid sick leave is an area where the U.S. has fallen behind 75% of the rest of the world.  When low income countries like Cambodia and Bolivia have laws guaranteeing paid sick leave, one does wonder what is wrong with the biggest economy in the world.

It wasn't until 2012 that Connecticut became the first U.S. state to require employers to provide paid sick leave to their employees.  Now, according to guidance on complying with paid sick leave laws from the Society for Human Resources Management (SHRM), seven states (Arizona, California, Connecticut, Massachusetts, Oregon, Vermont and Washington) and the District of Columbia require employers to provide paid sick leave to their employees.  SHRM also reports that the U.S. states of Maine, Maryland, Michigan (Michigan doesn't already have sick leave?), Pennsylvania and hey - Minnesota! - currently have paid sick leave legislation pending.

Affordability may be a genuine concern for some small employers.  This concern can be addressed by legislative tiers of sick leave coverage.  For example, under District of Columbia law, employers with 25-99 employees must provide 5 days of sick leave a year and those with 100 or more employees must provide 7 days of paid sick leave a year.  Very small employers with 24 or fewer employees must provide 3 days of sick leave a year.  Other examples cited in the WHO's study on paid sick leave include social security or public insurance programs to cover paid sick leave might be unpalatable at the federal level in the U.S. but might be considered by some U.S. states.  Even when affordability is a concern, some small employers still want to provide some measure of paid time off.  Not only can human resources organizations like SHRM provide guidance, but there are a number of resources available from entities like Quickbooks and Dun & Bradstreet that can help small employers tweak payroll budgets to ensure their employees have access to paid sick leave and other paid time off when they need it.

Wait, what - is it 1917 or 2017?  Did I just write a blog post arguing that U.S. law must extend access to paid sick leave to workers?  Hasn't that been a right in most other countries for almost the last century?  You'd think we don't have the legal right to paid vacation or holidays either.  Oh, yeah.  About that...

Sunday, June 18, 2017

Canada poised to supplant U.S. as leader in negotiating and enforcing labor provisions in free trade

Canada is poised to supplant the U.S. as the world leader in negotiating and enforcing labor provisions in free trade agreements.

In January of this year, the U.S. and Canada both issued reports in response to labor petitions filed by Colombian trade unions and their Canadian and U.S. allies under free trade agreements with Colombia.  The report issued by Employment and Social Development Canada (ESDC) was featured in the June 2017 issue of the ABA's International Employment Lawyer.

The Canadian and U.S. government reports both criticized Colombia's employment sub-contracting regime, labor justice enforcement machinery and ineffectual prosecution and punishment of murders of and violence against trade unionists.  Both Canada and the U.S. will engage in consultations with the Government of Colombia to address shortcomings in the substance and enforcement of labor laws and failure to effectively protect trade unionists from violence - with one tiny but important difference.

While the Canadian National Administrative Office (NAO - the office within Canada's labor ministry charged with administrating labor provisions of FTAs) recommended consultations between the Canadian and Colombian Labor Ministers, its U.S. counterpart recommended "contact point consultations" between U.S. and Colombian labor officials below the ministerial level.  U.S. officials will determine whether further action is needed if sufficient progress has not been made after a 9-month period.

In fairness, it should be noted that when the U.S. Department of Labor issued its report on January 11, the U.S. government was on the verge of inaugurating a new President in just 9 days.  Recommending contact point consultations may have been a way to ensure that work and discussions with the Government of Colombia could continue while a new Minister of Labor was being appointed and getting settled in the job - especially since the U.S. and Colombian governments have had a Labor Action Plan in place since 2011.  On the other hand, recommending contact point consultations rather than ministerial consultations may simply delay definitive U.S. action for another 9 months and weaken the leverage the U.S. might gain with the petition's potential for triggering trade dispute resolution mechanisms under the Colombia Trade Promotion Agreement (CTPA).

Meanwhile, Canadian Labor Minister Patty Hajdu and her Colombian counterpart Minister Griselda Janeth Restrepo have already begun ministerial consultations to develop a multi-year work plan to address issues raised by Colombian and Canadian trade unions. 

Bold Canadian action in response to the first petition filed under the labor provisions of a non-NAFTA Canadian free trade agreement is not the only indication that Canada is poised to supplant the U.S. as the world leader in negotiating and enforcing labor provisions in FTAs.  The Canadian government has taken a leading role in the negotiation of labor provisions in the Trans-Pacific Partnership (TPP) and in the financing of ILO research on incorporation of international labor standards in free trade agreements.  

Additionally, Canada's FTA labor provisions frequently include a broader set of labor rights than most U.S. FTAs  - especially when it comes to ILO Conventions 100 and 111 on equal pay for women and men for work of equal value and the elimination of workplace discrimination based on sex, race and other grounds. Most Canadian FTA labor provisions also include broader protections for occupational safety and health and compensation for workplace injuries - not to mention protection of migrant workers.

The benefits of free trade for workers may be hotly contested - especially by workers themselves - but labor provisions in free trade agreements can still be used as tools by worker rights advocates and trade unions to draw attention to labor rights violations with the aim of improving the substance and enforcement of labor laws.  Canada's report on shortcomings in Colombian labor laws and enforcement mechanisms shows that the Canadian NAO and labor provisions in Canadian FTAs are an untapped resource in the fight to improve global working conditions.

Thursday, October 27, 2016

UN Special Rapporteur issues report on workers’ human rights to freedom of association and peaceful assembly

My recent piece in IntLawGrrls, reproduced here, highlights the some of the main points in the recent UN Special Rapporteur report on the rights to freedom of peaceful assembly and association in the workplace.

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UN Special Rapporteur Maina Kiai presented his report on the rights to freedom of peaceful assembly and association in the workplace to the UN General Assembly on October 20, 2016.
The Special Rapporteur on the rights to freedom of assembly and association was created in October 2010 by UN Human Rights Council Resolution 15/21 and renewed in September 2013 (UN HRC 24/5) and September 2016 (UN HRC 32/32).  The current Special Rapporteur Maina Kiai has been serving since May 2011.
General Assembly Report A/71/385 examines the rights to assembly and association in the workplace with a special focus on the most marginalized - global supply chain workers, informal workers, migrant workers and domestic workers.
In remarks made on October 21, Maina Kiai recounted how years before, his human rights NGO in Kenya attempted to assist local workers but encountered friction from the local trade union.  It is thus no surprise that the Special Rapporteur calls for obliteration of "the antiquated and artificial distinction between labour rights and human rights generally.  Labour rights are human rights, and the ability to exercise those rights in the workplace is a prerequisite for workers to enjoy a broad range of other rights, whether economic, social, cultural, political or otherwise."
The report outlines the international legal framework establishing the principle that Worker Rights are Human Rights.  The rights to peaceful assembly and association are recognized in Article 20 of the Universal Declaration of Human Rights.  They are recognized as first generation human rights in Articles 21 and 22 of the International Covenant on Civil and Political Rights - with Article 22 specifically including "the right to form and join trade unions" within the right to freedom of assembly.
The International Covenant on Economic, Social and Cultural Rights recognizes the rights to assembly and association as second generation human rights.  Article 8 of ICESCR recognizes the rights for individuals to form and join trade unions and for trade unions to create and join national and international federations.  Article 7 of ICESR recognizes other work-related rights as human rights, including:
  • fair wages that guarantee a decent living for workers and their families;
  • equal pay for work of equal value
  • equitable working conditions for women and men;
  • safe and healthy workplaces;
  • equal opportunity in the workplace;
  • rest, leisure and reasonable limits on working hours; and
  • paid vacation and holidays.

The rights to freedom of association and collective bargaining are also enshrined in ILO Conventions 87 and 99.  They are foundational rights essential to the protection of core labor rights in the 1998 ILO Declaration on Fundamental Rights at Work, so States must respect them whether or not they have ratified these 2 conventions.  The Special Rapporteur observes that the Right to Strike has been established in international law for decades and has in fact become customary international law.
States must respect, protect and fulfill the rights to freedom of assembly and association.  States must ensure full enjoyment of these rights for both women and men under Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women.  Many women around the world are excluded from protection under national labor rights regimes because they work in the informal economy.  An estimated 60.7% of the world's workers toil in the informal economy, where employment relationships are not legally regulated.
Others excluded by law from protection in many countries include migrant, domestic and agricultural workers.  Report A/71/385 declares unequivocally that States that discriminate against or exclude certain groups from protective legislation violate their obligations to respect and protect the rights to peaceful assembly and association.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families recognizes human rights standards protecting migrant workers.  For both authorized and unauthorized migrant workers, exclusion from legal protection and lack of assembly and association rights are compounded by harsh immigration laws and unscrupulous labor recruitment organizations.  The report points to guest worker programs in Bahrain, Kuwait, Oman, Saudi Arabia, Qatar, the United States, the U.K. and Zimbabwe that legally and structurally deny migrant workers' rights to assembly and association.  Workers in these programs who attempt to exercise their rights risk being blacklisted, deported, evicted, denied future visas, threatened with violence and physically assaulted.
Violence - including gender- and racial or ethnic-based violence - is frequently used by States and others to deter the exercise of rights to freedom of peaceful assembly and association.  In 2015, trade unionists were murdered in 11 countries - Chile, Colombia, Egypt, El Salvador, Guatemala, Honduras, Iran, Mexico, Peru, South Africa and Turkey.
The Special Rapporteur issued recommendations not only to States, but to Businesses, the ILO, the United Nations and multilateral financial institutions like the World Bank and IMF as well as to trade unions and civil society.
Key among those recommendations to States are:
  • ratification of relevant international and human rights instruments;
  • taking measures to ensure that workers in vulnerable situations have the ability to fully and effectively exercise their rights to freedom of assembly and association;
  • prohibiting companies that fail to respect those rights from bidding on public contracts; and
  • protecting and promoting the assembly and association rights of migrants.

Businesses should:
  • commit to the principle that labor rights are human rights;
  • respect the rights of workers to form and join trade unions and engage in collective action;
  • engage in collective bargaining;
  • refrain from anti-union practices and policies; and
  • implement the Guiding Principles on Business and Human Rights.
The ILO should:
  • set standards to extend rights to freedom of association and collective bargaining to informal workers; and
  • focus on governance gaps for workers in global supply chains.

The UN and MFIs should:
  • consult with trade unions and worker organizations to ensure that assembly and association rights are promoted and protected in their policies and programs.

Civil society and trade unions should:
  • create alliances to monitor the effective implementation of the Rapporteur's recommendations;
  • commit to the principle that labor rights are human rights; and
  • continue to advocate for equal opportunity to present their views to governments and businesses.

Finally, trade unions should:
  • specifically target outreach and advocacy toward the historically disenfranchised, including domestic, migrant and informal workers.

Thursday, September 29, 2016

Colombia: Violence against trade unionists impacts OECD bid, trade relations with U.S.

My two recent pieces on labor issues in Colombia  highlight how important effective protection of freedom of association and the right to collective bargaining are to a country's participation in the global community.

The first piece in The International Employment Lawyer USA - Department of Labor Accepts First Labor Petition Under US-Colombia Trade Promotion Agreement (Fall 2016) discusses the recent labor petition filed by Colombian trade unions and the AFL-CIO under the U.S.-Colombia free trade agreement.  At issue is whether or not the Government of Colombia has fully complied with labor-related commitments in the FTA and a 2011 Labor Rights Action Plan outlining a number of pre-conditions to be met by Colombia before the FTA went into effect.  If Colombia cannot effectively protect trade unionists from murder and violence, it risks losing U.S. trade benefits.

The second piece in IntLawGrrls Violence against trade unionists, application of labor laws at issue in Colombia’s bid for OECD membership (September 2016) discusses labor and social protection issues related to Colombia's bid to become a member of the Organization for Economic Cooperation and Development (OECD).  The OECD's 2016 report on labor and social protection in Colombia highlights the same issues raised by Colombian and U.S. trade unions - including failure to protect trade unionists from violence - as areas of improvement to be addressed before Colombia can joint the club of elite governments in the OECD.  If Colombia cannot find a way to improve Rule of Law and protect trade unionists from murder and threats of violence, it may fail in its bid to join the OECD.

Now that Colombia has signed a Peace Agreement with the FARC, it will be interesting to see whether efforts on an international level and within Colombia will lead to meaningful change for Colombian workers.

Tuesday, September 27, 2016

OECD: Some progress made in Pacific Alliance, but more must be done to lift women out of poverty

Chile, Colombia, Mexico and Peru should be doing better for women.  Now is the time to act.

- Gabriela Ramos, OECD Chief of Staff, Sherpa to the G20
and Special Counsellor to the OECD Secretary-General


Since 2013, the Organization for Economic Cooperation and Development (OECD) has pursued a robust  research and policy agenda to support the reduction and elimination of gender equality in member states.  This agenda is based on the OECD's 2013 OECD Gender Recommendation and 2015 OECD Recommendation on Gender Equality in Public Life.

As part of this agenda - and at the request of countries in the Pacific Alliance - on August 26, 2016 the OECD released the report Gender Equality in the Pacific Alliance : Promoting Women's Economic Empowerment which compares gender-related economic outcomes in Chile, Colombia, Mexico and Peru.  The Pacific Alliance is a regional integration project established in 2011 by the four Latin American countries.  Three of those countries (Chile, Mexico and Peru) are parties to the still unratified Trans-Pacific Partnership (TPP).  Two are members of the OECD (Chile and Mexico) and one is being considered for membership in the OECD (Colombia).  All four countries are signatories to free trade agreements with both the U.S. and Canada - most notably Mexico, which has been a member state of the NAFTA since 1994.

As a result of the leadership of outgoing President of Chile Michelle Bachelet, gender equality was on the agenda of the 2016 Pacific Alliance Summit held in Puerto Varas, Chile from June 28 to July 1, 2016.

The overall message of Gender Equality in the Pacific Alliance is that all four member states have made significant strides in improving gender equality but a significant amount of work is still required.  Overall issues that hit women particularly hard are the pervasiveness of work in the informal sector, high rates of poverty, weak rule of law and inadequate institutions.

The report examines and compares participation rates for women and girls in education, the labor market and business ownership, highlighting three major areas of concern: (1) the high rate of girls and women who are Not in Education, Employment or Training (NEET); (2) unequal sharing of unpaid housework and childcare borne by women; and (3) the persistence of traditional attitudes about gender roles.  The report then goes on to make the economic case for gender equality and concludes with a number of policy recommendations to level the playing field between girls and boys and women and men.

All four of the countries in the Pacific Alliance made significant progress in primary education rates for both girls and boys - over 90% of children in Chile, Colombia, Mexico and Peru attend primary school.  Rates drop off for both girls and boys at the secondary school level, with the lowest participation rate in Mexico at 67% and the highest at 86% in Chile.  More girls attend secondary school in Colombia than boys (80% of the girls and 74% of the boys).  At the college/university level, Chile made the most advancement.  The total college enrollment in Chile is now 71%.  Compared to 2000 when 35% of young women in Chile attended college or university, today 84% attend.  Only 23% of Chilean women in college graduate with a degree in science or math, however - compared to 42% and 46% in Colombia and Mexico respectively.

Labor market participation rates for women in the four nations have increased over the last two decades, especially in Chile and Peru.  In Chile, the percentage of women in the workforce increased from 37.4% to 55.7%.  The percentage of Peruvian women in the workforce increased from 52.7% to 65.5%.  The percentage of women in the Colombian and Mexican labor markets increased about 5%, from 39.6% to 46.8% in Mexico and from 57.4% to 62.9% in Colombia.

Despite increased participation in labor markets, women in the Pacific Alliance tend to have lower quality jobs and earn less than men.  They also tend to work in the informal sector such as in home-based and domestic work.  This means that in addition to having low earning potential, a high percentage women are not participating in national social security systems - meaning no access to new increased maternity benefits legislated in Colombia in 2010 (for example) and no pension benefits in old age.  Thus women in the Pacific Alliance start out poor, remain poor during adulthood and end their lives in poverty.

Particularly troubling are the statistics for Mexico, where 64.6% of women (and 48.8% of men) report having never paid social security contributions.  In 2010 Colombia passed the Formalisation and Job Creation Law to incentivize formalization of companies and employment - providing government support, simplifying administrative and legal procedures and providing tax relief to encourage the hiring of workers from "vulnerable population groups" like women over 40.

One particularly hard-to-overcome problem is the gender pay gap - despite equal or better school completion rates for girls.  The OECD attributes this to employer discrimination, women's career breaks, occupational segregation and the heavier housework (including childcare) burden on women.  The report points out that increasing women's labor force participation and Equal Pay are good for both women and men.  Halving the current gender gap in Mexico would increase the country's projected growth rate by 0.16 percentage points a year.

The OECD highlights a number of policy measures to address economic inequality between women and men.  One policy measure is paternity leave, to enable fathers to take a greater role in childrearing.  Chile offers 12 weeks of parental leave that can be divided between the mother and father.  Mexico recently introduced 5 days of paternity leave.   Mothers in Mexico are entitled to 12 weeks of maternity leave.  The report emphasizes at each point it discusses these maternity leave laws that the majority of women cannot access the benefits because they are working in the informal sector.

Another policy measure effective in reducing women's poverty and allowing them to improve their earning capacity is childcare and early childhood education.  Mexico has made some progress in this area.  In 2002, 54% of children aged 3 to 5 were in pre-primary or primary school.  Today, that number has increased to 91.3%.  Between 2005-2014, the number of Peruvian pre-schoolers increased from 66.5% to 78.9%.  One particular Mexican program highlighted by the report is the Estancias Infantiles para Apoyar a Madres Trabajadores (Childcare to Help Working Mothers) program which both provides childcare and certification mechanisms for childcare providers (many of whom are women).

Not surprisingly, one of the report's main policy recommendations is that more women should be moved into formal employment and social security systems.  Some of the recommended steps to achieve these two interlinked goals are:   providing tax credits and enabling individual unemployment savings accounts; improving women's (especially poor, rural and indigenous women's) access to banking and loans; making it less expensive to formalize an informal business or self-startup in the informal sector; and strengthening labor inspection of informal businesses with workers on the payroll.

Another set of key recommendations in the report relate to the elimination of gender inequalities in the workplace - particularly eliminating the gender wage gap by promoting pay transparency, tackling stereotypes, emphasizing equal pay for equal work and strengthening laws and enforcement for combating all forms of discrimination in pay, recruitment, training and promotion.    In addition to  these workplace-related recommendations, the OECD emphasizes the need to improve educational outcomes for girls and women, especially in the scientific, technical and math fields.

Gender Equality in the Pacific Alliance : Promoting Women's Economic Empowerment is an excellent report.  It is an example of just how critical leadership by women at the top levels of government and the private sector can be to getting women's issues at the top of the international agenda.  Anyone interested in sustainable economic development, women's economic empowerment and regional legal and social systems or the well-being of women, children and men in the Pacific Alliance should immediately read this report.

Thursday, September 22, 2016

President of Chile Michelle Bachelet speaks at the Wilson Center

This afternoon President of Chile Michelle Bachelet spoke at the Wilson Center.  A video of the event is available.  She spoke of a wide range of subjects like the absolute necessity for the empowerment of women to ensure sustainable development; her leadership of the 2016 session of the Pacific Alliance and her request to the OECD for a special report on gender equality in Pacific Alliance member states Chile, Colombia, Mexico and Peru (subject of a separate post on this blog); the sometimes harshness of politics; the necessity for quotas and affirmative action to encourage women to participate in politics and private sector leadership; the need to excite children in school rather than have them sit at their desks quietly and passively; and her feelings about the impeachment of Brazilian President Dilma Rousseff and the media's treatment of U.S. Presidential candidate Hillary Clinton.  The event was moved from the Wilson Center's normal conference room to a major lecture hall in the Ronald Reagan International Center.  The audience was engaged and buzzing with excitement.

According to her biography, Michelle Bachelet has served as President of Chile twice.  During the period between her two terms as President, she headed up UN Women, the UN agency dedicated to gender equality and the power of women.  Today, the UN Women released the First report by High-Level Panel on Women's Economic Empowerment, which outlines drivers to advance gender equality.

President Bachelet observed that it is necessary to constantly update strategies to effectively empower women - and that development is unreachable when half of the population is not empowered.  While women's participation in the Latin American workforce has increased from 49.2% in 2000 to 52.9% in 2010, much work still needs to be done - particular in the areas of addressing the wage gap and ensuring a higher percentage of women at top levels of leadership in the government and private sectors.  In addition to her work on an international level ensuring that a gender perspective is incorporated into the Pacific Alliance, President Bachelet's administration has a number of gender-related initiatives to empower women within Chile - like facilitating women's access to capital and credit for businesses and coming up with strategies to increase the number of women scientists and engineers.  She observed that today, there are more female engineers graduating in India than men.

Of particular interest was the Bachelet Administration's participation in foreign affairs in Latin America.  President Bachelet participated in the peace talks leading up to the negotiation of a peace accord between the Government of Colombia and the FARC.  The 297-page peace accord, to be signed on Monday, September 26, is one of the first to specifically include provisions related to gender and pays special attention to the fundamental rights of women, indigenous communities, girls, boys, adolescents, the Afro-Descendent community, those with disabilities and the LGBT community.

Also of interest were Chilean assistance programs in Central America which are being used to support agricultural projects and encourage trade unionism.

It was exciting to be in the presence of the Chilean Head of State - and more exciting to see how she incorporates gender leadership throughout her administration's national and international policies.

Wednesday, September 21, 2016

Oversold and under-delivered: The Trans-Pacific Partnership and Women's Economic Empowerment

This piece was simultaneously published on the Huffington Post.

The Trans-Pacific Partnership should not be ratified without meaningful provisions on Women's Economic Empowerment.

U.S. ratification of the Trans-Pacific Partnership is up in the air due to opposition by both major party presidential candidates, a number of members of Congress and U.S. trade unions. If negotiations are to be reopened to address the public's concerns, one area that must be revisited and reopened for negotiation is that of Women's Economic Empowerment.

Women's Economic Empowerment was clearly a goal of the Obama Administration in the negotiation of the Trans-Pacific Partnership, a proposed free trade area between countries on all sides of the Pacific including Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Japan, Peru, Singapore, the United States and Vietnam. In April 2014, U.S. Trade Representative Michael Froman published a post on the USTR blog Tradewinds extolling the advantages free trade can have for women. Froman references a USTR strategic paper that highlights 4 areas in which the TPP would enhance women's economic empowerment - protecting vulnerable workers, increasing formal employment, promoting development and encouraging development.

It should come as no surprise that the Obama Administration would want to prioritize the empowerment of women in its international trade agenda. Women's Economic Empowerment and achieving gender equality are also global policy goals for the international community. Two critical gender-equality targets under the U.N. Sustainable Development Goals are (1) ending all forms of discrimination against women and girls everywhere and (2) eliminating all forms of violence against women and girls everywhere in the public and private spheres. The Organization for Economic Cooperation and Development (OECD) has a robust research and policy agenda in support of the achievement of gender equality - most notably exemplified by its May 2013 Recommendation on Gender Equality in Education, Employment and Entrepreneurship. Gender equality was a key agenda item for the 11th Summit for the Pacific Alliance (a regional integration project of TPP signatories Chile, Mexico and Peru as well as Colombia) held in Chile in June-July 2016. An OECD report on gender equality in the Pacific Alliance published in August 2016 emphasizes not only the need to create a supportive business environment for women entrepreneurs, but the damaging role unequal pay for women has on the economy and the importance quality childcare and early childhood education programs have both for working women and the overall wellbeing of a country's inhabitants.

When I first heard a rumor at a conference in Toronto in May 2014 that there would be provisions on Women's Economic Empowerment in the Trans-Pacific Partnership, I envisioned an entire chapter dedicated to Women's Economic Empowerment on the same level as Labor (Chapter 19), Environment (Chapter 20) or Intellectual Property (Chapter 18) - something like the wide ranging 2012 U.S.-Mexico Memorandum of Understanding for the Promotion of Gender Equality, the Empowerment of Women and Women's Human Rights signed by then U.S. Secretary of State Hillary Clinton and then Mexican Minister of Foreign Affairs Patricia Espinosa. The scope of cooperation in the 2012 MOU includes the strengthening of citizenship security (particularly for women and girls) and promotion of economic empowerment and opportunities, social development that supports women and increased access to justice for women.

An entire TPP chapter devoted to Women's Economic Empowerment would make history, putting women and issues facing working women and business owners at the center of U.S. trade policy.

The actual result in the TPP is a little more underwhelming. A February 2016 blog piece by former Acting Deputy USTR Wendy Cutler in The Hill highlights that the Women's Economic Empowerment text is tucked away in Article 23.4 of TPP Chapter 23: Development.

In fairness, inclusion of an entire FTA chapter devoted to development is new to U.S. trade policy. Article 23.1.1 of TPP Chapter 23 on Development affirms the parties' "commitment to promote and strengthen an open trade and investment environment that seeks to improve welfare, reduce poverty, raise living standards and create new employment opportunities in support of development." TPP's development chapter emphasizes the concept of Inclusive Growth, which it defines as "broad-based distribution of the benefits of economic growth through the expansion of business and industry, the creation of jobs, and the alleviation of poverty."

Inclusion of any text at all devoted to women's role in economic development is also new to U.S. trade policy. Article 23.4 extends the concept of inclusive growth to include women, In the first clause, the parties to the TPP recognize that enhancing opportunities for women contributes to economic development. This covers women as both workers and business owners.

The second clause of Article 23.4 commits the parties to the TPP "to consider [my emphasis] undertaking cooperative activities aimed at enhancing the ability of women, including workers and business owners, to fully access and benefit from the opportunities created by this Agreement." Examples of cooperative activities include developing women's leadership networks; identifying best practices related to workplace flexibility; helping women build their skills and capacity; and enhancing women's access to markets, technology and financing.

On the one hand, Article 23.4 creates an opening for international dialogue on women's economic empowerment in the context of the TPP. With the right leadership and attention, women's rights advocates within and outside government policy circles can do a lot even with this little text. Much more has been built on a smaller foundation.

On the other hand, the gender-based commitment in Article 23.4.1 is highly contingent - flimsy almost. The parties do not even commit to undertake cooperative activities to enhance opportunities for women - they commit to consider undertaking cooperative activities to enhance opportunities for women. Is that even a binding commitment? "We've considered it and decided it against it." Even if it were a binding commitment, Article 23.9 specifically excludes Chapter 23 on Development from TPP's dispute resolution mechanism.

Thus, no TPP chapter devoted to Women's Economic Empowerment. No strong statement about the importance of women in the global economy or in Trans-Pacific Partnership member states. No binding commitment to empower women economically or otherwise.

The lack of meaningful provisions on Women's Economic Empowerment and gender equality in the TPP is just another instance where the promise of a modern "21st Century" trade agreement did not materialize. The political head winds against the TPP create an opportunity for improvement, however, and women's advocates throughout the Trans-Pacific region should take this opportunity to make their voices heard. TPP should not be ratified without a fully enforceable chapter on Women's Economic Empowerment.