By Tequila J. Brooks
On December 20, 2012, the Office of Trade and Labor Administration (OTLA) in the U.S. Department of Labor issued its first report applying the Chapter 15 labor provisions of the U.S.-Bahrain Free Trade Agreement (FTA), which require member states to conform to the ILO Declaration on Fundamental Rights at Work. The report was the first to apply FTA labor provisions to a non-Latin American trade partner. The U.S.-Bahrain FTA (2006) is one of four FTAs the U.S. has with Arab nations. The other three are with Morocco (2006), Jordan (signed in 2000 and fully implemented in 2010) and Oman (2009). The U.S. also has an FTA with Israel (1985).
The report results from a petition filed by the AFL-CIO in April 2011 and accepted by the OTLA in June 2011. It arises out of facts related to the Arab Spring protests in Bahrain. A little over two years ago, Bahrainis poured into the Pearl Roundabout in Manama, the capital of Bahrain, to peacefully assemble for more democracy and equality. An island nation in the Persian Gulf with a large U.S. naval base in its territory, Bahrain is led by a monarchy and a small Sunni minority with a large Shi’a majority. In comparison to Egypt and Tunisia where unemployment continues to hover at the 60% level despite the Arab Spring two years ago, official estimates of unemployment for Bahrain are at 4.3% - though youth unemployment in Bahrain is estimated by international sources to be about 25%. According to the International Labor Organization (ILO), in 2009 close to 40% of the Bahraini workforce consisted of foreign workers. Women form 19% of the total workforce, 40% of them working for the government. It is unclear whether this figure includes the many foreign household workers in Bahrain.
In mid-February and mid-March 2011, the General Federation of Bahraini Trade Unions (GFBTU, established in 2002) and the Bahraini Teachers’ Society (BTS – a society since public workers do not have the right to organize trade unions under Bahraini law) called for general strikes in support of the demonstrators and to protest military crackdowns against the peaceful protests. On March 14, 2011, Gulf Cooperation Council (GCC) troops from Saudi Arabia and later Qatar and the United Arab Emirates entered the Pearl Roundabout to crack down on the demonstrators. Several demonstrators were injured and some were killed.
In the aftermath of the military crackdown of the Pearl Roundabout demonstrations, over 2,400 employees of public, private and parastatal entities as well as universities were suspended from work and/or terminated for having participated in the demonstrations and strikes. Trade union leaders in particular were targeted for termination. Over 1,200 of those terminated worked for the Ministry of Education. Petitioners alleged that the firings were unjustified and unlawful and resulted from discrimination based on political opinion and religion as well as retaliation for legitimate trade union activities. Many workers were questioned by their employers about Facebook postings, “Likes” on Facebook and their political leanings. The OTLA noted that in some cases dismissals were preceded by arrests and detention facilitated by employers, and that trade union leaders and others were tortured while in detention. For example, the Vice President of the BTS was arrested, tried and sentenced to 3 years in prison. The President of the BTS was sentenced to 10 years of prison and was still in jail when the OTLA’s report was issued. Both have been tortured while in prison.
In addition to arguing that Bahrain failed to comply with its Chapter 15 obligation to conform to ILO conventions on the freedom to organize and collectively bargain, petitioners argued Bahrain failed to comply with its obligation to prohibit discrimination in the workplace in conformance with ILO Convention 111. Almost all of the workers terminated in the wake of the Pearl Roundabout demonstrations were Shi’a, not Sunni – including some who did not participate in the demonstrations and who managed to not miss work despite the traffic pile-ups and chaos during the demonstrations. Although Bahrain has ratified ILO Convention 111 – unlike the ILO trade union rights conventions which the country has not ratified – Bahrain does not have a law prohibiting discrimination in occupation and employment.
In a departure from earlier U.S. DOL reports under FTA labor provisions arising in Mexico and Central America involving terminations for trade union activity, almost all of the workers terminated in the wake of the Pearl Roundabout protests have been reinstated as a result of international intervention – in particular, the organization of tripartite dialogue by the ILO between the GFBTU, the Bahrain Chamber of Commerce and Industry (BCCI) and Bahraini government authorities. This dialogue resulted in an agreement to reinstate workers. Not all of the workers were reinstated to their previous positions, however, and many still have negative marks on their employment records.
Despite the fact that many of the terminated workers have been reinstated, the OTLA called for ministerial consultations under the FTA, highlighting a number of areas of Bahraini labor law that do not conform to the ILO’s Declaration on Fundamental Rights at Work. This too is a departure from previous U.S. DOL jurisprudence, where the U.S. DOL has been reluctant to criticize labor legislative lapses of its trade partners. In particular, the OTLA condemned Bahrain for its ban on public sector unions, finding, “[T]he Government of Bahrain appears not to be fulfilling its commitments under Article 15.1 and 1.2 of the FTA.” Similarly, pointing to cases involving the imprisonment of the BTS President and Vice President, the OTLA also condemned a provision in Bahrain’s Penal Code establishing a prison term of up to one year for civil servants who join in groups of 3 or more to “not perform their duties,” finding Bahrain’s failure to comply with ILO recommendations to remove this provision to be inconsistent with the country’s obligations under its FTA with the U.S. The OTLA also found that the terminations conducted in the wake of the Pearl Roundabout demonstrations to “have been carried out in a discriminatory fashion, punishing workers for their religious … identity and/or political opinion.”
Legislative recommendations made by the OTLA to Bahrain in the report include amending Bahraini labor law to explicitly prohibit employment discrimination (in particular discrimination based on political opinion and religion); removing the ban on trade union engagement in political activities as well as the ban on strikes and work stoppages in a wide range of government and private entities described as "strategic"; amending criminal sanctions for participating in or encouraging strikes by public servants; and repealing the ban on multi-sectoral labor federations. Recommendations tailored to the particular facts discussed in the petition include full implementation of the Tripartite Agreement on worker reinstatement negotiated with the assistance of the ILO; reviewing all criminal cases against trade union leaders and trade unionists that stem from participation in the March 2011 general strike; and investigating employer acts of intimidation and harassment of trade union leaders and members and other actions that weaken workers' organizations.
If the U.S. and Bahrain are unable to resolve the matters discussed in the OTLA's report through ministerial consultations, a Joint Subcommittee on Labor Affairs can be established as outlined in the Chapter 18 of the FTA on Administration of the Agreement and per Articles 15.4.1 the Labor Chapter. In contrast to dispute resolution provisions in the CAFTA-DR, under Article 15.6.5 of the U.S.-Bahrain FTA the signatories agreed that neither party may have recourse to the dispute resolution provisions of the FTA except those outlined in the labor chapter.
OTLA Public Report of Review on Bahrain (December 2012): http://www.dol.gov/ilab/programs/otla/20121220Bahrain.pdf
AFL-CIO Bahrain Submission (June 2011): http://www.dol.gov/ilab/programs/otla/BahrainSubmission2011.pdf
The Carnegie Endowment (Laurence Clements) Impact of the Global Crisis on Bahrain Labor: http://carnegieendowment.org/2009/07/07/impact-of-global-crisis-on-bahraini-labor/b1xs
The International Labor Organization, Kingdom of Bahrain Decent Work Country Programme 2010-2013:
Chapter 15 (Labor Chapter) of the U.S.-Bahrain Free Trade Agreement: http://www.ustr.gov/sites/default/files/uploads/agreements/fta/bahrain/asset_upload_file73_6297.pdf