May 28, 2004

Given how important it is that the NAALC process focus on the larger issues that were raised in Public Communication #2003-01 (Puebla), a summary outlining the fundamental violations described by those who testified in both Washington and Toronto was presented to the Canadian NAO. According to this summary, the five central components of the Complaint, as illustrated by the testimony provided on May 28 in Toronto, are:

• The failure of Mexican labour justice;
• Clear evidence of protection contracts;
• Intimidation and coercion by employers;
• The failure to provide information and representation to workers;
• The enforcement of health and safety and employment standards legislation.

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The failure of Mexican labour justice

"We ask that Melquiades Morales Flores, the Governor of Puebla, is pressured to recognize independent unions. We want him to address the issue of corruption within the local Labour and Arbitration Boards and ensure that they don't align themselves with companies, as if they are the ones that suffer violations to their rights." - Salvador García Sánchez, Former Tarrant worker "I demand that injustices are resolved, that the Government and companies respect freedom of association and that Mexican laws are not violated. I want my right to work returned to me. We want to work, but we also want to be treated with dignity." - Maribel Ramírez Torres, Former Tarrant worker "...[T]he government must pay attention to the experiences of thousands and thousands of workers in Mexico. It should protect workers' rights, and fulfill the goal of the Mexican Constitution and Federal Labour Law - to defend all workers trying to live a dignified life. Only then will we have justice, peace and the chance to expand our opportunities." - Jaime Ayala Sánchez, Former Matamoros Garment worker "...On behalf of all Tarrant workers, I call on the NAO to pressure the signatory governments of NAFTA (Mexico, Canada and the US) to ensure that the rights supposedly protected under the trade agreement - basic working conditions and freedom of association and the right to organize - are upheld." - Martín Zacatzi Tequextle, Former Tarrant worker "After having explored all avenues for gaining justice in Mexico and receiving no response, we are now appealing to the Canadian NAO for action. We are asking the NAO to make recommendations to the Mexican government and Mexican labour authorities for fair and equitable treatment of workers organizing to improve their lives." - Blanca Velazquez Díaz, Worker Support Centre in Puebla, Mexico "Unless the Canadian NAO and the Canadian Government can demonstrate in its response to this latest case that the process can lead to concrete results, the only question remaining will be whether it is worth amending the NAALC and revamping the processes associated with the Agreement. Moreover, given that the NAALC has served as a model for subsequent trade agreements in the hemisphere, skepticism will continue to grow about whether labour rights can be enforced or improved through trade agreements." - Mark Rowlinson, United Steelworkers of America, Canadian Office

The evidence presented at the hearing and in the written material makes it absolutely clear that the labour tribunals identified in the Complaint utterly failed to comply with the NAALC.

Article 5 of the NAALC requires that administrative, quasi-judicial, judicial and labour tribunal proceedings are "fair equitable and transparent". Further, the NAALC provides that the parties to such proceedings are entitled to support or defend their respective positions. The NAALC requires that parties be given the right to "present information or evidence."

Finally, Article 5 of the NAALC provides that labour tribunals must be "impartial and independent" and must not "have an interest in the outcome of the matter".

If freedom of association is to mean anything, workers must be able to form unions without having to follow a lengthy series of arcane rules that are clearly designed to defeat the will of the workers to join independent unions. It is clear that the Juntas in this case made every effort to ensure that Mexican Law was enforced so as to preclude workers from joining independent unions. This is clear violation of the NAALC.

At the May 28 hearing, the NAO asked many questions regarding the workers apparent reluctance to file complaints and appeals with the Juntas.

The answer, of course, is that workers had no faith that their complaints would be addressed. When workers complained about the intimidation and coercion in the plant, they were directed to speak with the SFV. On a broader level, the workers in Puebla, as well as the organizations who represent them, have no confidence in the JLCA of Puebla to uphold the law. Their experience is that the Junta is corrupt and bias. The Junta has no interest in defending the rights of workers who join independent unions.

If the system is so obviously corrupt, it is not surprising that the workers and their representatives do not seek its protection when their rights are violated.

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Protection contracts

The evidence presented at the hearing on May 28 reinforces the need for the Canadian NAO to take strong action to address the problem of protection contracts in Mexico.

At Matamoros, the existence of the contract signed without the knowledge and consent of the workers was a major obstacle to the workers' desire to join the trade union of their choice and improve their terms and conditions of employment.

At Tarrant, there is much confusion about whether the Employer had signed an agreement with the FROC-CROC. The fact that the employees and their advocates do not know, and cannot even find out whether a collective agreement covers the workplace merely confirms the need for a registry of collective agreements.

It is clear from our complaint that no progress has been made on the dissemination of collective agreements and union information to workers.

This issue must be addressed in a concrete way by the Canadian, U.S. and Mexican governments.

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Intimidation and Coercion

During the course of the hearing, a great deal of testimony was heard regarding the egregious conduct by the employers at both the Matamoros garment plant and the Tarrant plant. This intimidating and unlawful conduct included:

• Evidence that employees were forced to work and forced to work overtime
• Evidence that the Employer repeatedly threatened the livelihood of workers if they chose to exercise their right to join the trade union of their choice;
• Evidence that employers and their advisers coerced and manipulated employees into accepting settlements that were significantly below what the workers should have been entitled to at law;
• Evidence those employers were prepared to simply close a plant rather than accept the presence of an independent trade union; and
• Evidence that the employer, in collusion with incumbent union and a corrupt labour board, made it virtually impossible for the independent unions to be recognized.

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Accessibility of Information and Representation to Workers

Any functional labour relations regime must provide the necessary information to workers in order to insure that they can assert their rights. Further, it must be possible for workers to understand those rights and exercise them without constant recourse to expensive experts.

This means not only that information must be provided to workers, but the procedures and enforcement mechanisms must be accessible.

Finally, as we have already noted, the tribunals and the offices set up to assist workers must have credibility with workers and their representatives.

Any labour regime that fails to provide adequate information to the parties, or that imposes complex and demanding procedural requirements, automatically works to the advantage of employers at the expense of workers. Workers, unlike employers, do not have the resources to retain the services of numerous experts and professional to assist them in asserting their rights. As a result, the more difficult it is for workers to understand the system, the less likely it is that their rights will be protected.

In our submission, it is clear that the workers and their advocates in this case did not have access to the information necessary to defend and exercise their rights. It should come as no surprise, then, that they may not have been able to satisfy every procedural requirement placed on them by the Mexican Juntas. We submit that the Mexican system as a whole is to blame for these failures.

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Enforcement of Health and Safety and Employment Standards Legislation

A substantial amount of the testimony given on May 28 concerned health and safety and minimum employment standards violations.

Specifically, in the area of health and safety, the testimony revealed that the workers at both the Matamoros and Tarrant plants were given deficient personal protective equipment and inadequate facemasks. Workers were exposed to dangerous solvents without adequate protection. The plants were poorly ventilated. The workers were subject to poor ergonomic positions leading to constant back pain.

In the area of minimum employment standards, you heard testimony regarding underage workers. Workers were consistently paid less than the minimum wage. The workers also testified that at the Matamoros plant, the incumbent union was well aware of these practices and did nothing to address them.

At the hearing, a number of questions were asked about government inspections and enforcement. The workers testified that, to their knowledge, underage workers were sent home before government inspectors arrived at the workplace. Workers also testified that they thought the employer had advance knowledge of upcoming health and safety inspections. As a result, health and safety violations were concealed prior to inspections.

The fact that these health and safety conditions exist is proof that the inspection and enforcement of Mexican health and safety legislation is not working. Further, the fact that underage workers are working in these plants, and the fact that workers are being paid less than the minimum wage, is sufficient to establish that Mexico is not enforcing its minimum standards legislation.

• Read more about the Puebla case and the NAO hearings
• Read more about the North American Agreement on Labour Cooperation (NAALC)