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.