U.S. Office of Trade and Labor
Affairs accepts CAFTA-DR Chapter 16 labor petition filed against the Government
of Honduras
By Tequila J. Brooks, Washington DC
On May 14, 2012, the Office of Trade
and Labor Affairs (OTLA) accepted a petition filed by the AFL-CIO, 7 major
Honduran labor federations, 18 Honduran local unions and the Centro de
Derechos de Mujeres (Center for Women's Rights or CDM) alleging that the
Government of Honduras has failed to effectively enforce its labor laws and is
in breach of its CAFTA-DR obligation to enact labor laws that comply with ILO
standards. This is the third petition
filed under Chapter 16 labor provisions of the CAFTA-DR since the agreement
came into force in 2004. On December 22,
2011, Father Christopher Hartley, a Catholic missionary, filed a petition
alleging that the Government of the Dominican Republic is failing to comply
with its CAFTA-DR obligations to protect the labor rights of migrant Haitian
workers in Dominican sugar cane fields.
The OTLA accepted that petition on February 22, 2012 and it is currently
under review. The first CAFTA-DR Chapter
16 labor petition, filed against the Government of Guatemala in May 2008, was
referred to arbitration by the U.S. Trade Representative in August 2011. The arbitration panel has been established
but the arbitrators have not yet been selected.
On April 30, 2012, the Fair Labor Association and major corporations
American Eagle Outfitters, Inc., Adidas Group, Gap, Inc., Liz Claiborne, Nike
Inc., Under Armour, PVH Corp., and VF Corporation sent a letter to the
President of Guatemala urging his administration to resolve issues raised in
the CAFTA-DR complaint and better protect Guatemalan workers' freedom of
association and right to organize trade unions.
Unlike petitions filed under the
NAFTA labor side agreement which tend to focus on working conditions and
ineffective labor law enforcement with regard to a single factory or small
handful of plants in one industry in the same state or region, the Honduran
CAFTA-DR petition contains an extensive catalog of workplace violations and
ineffective labor law enforcement in 19 workplaces in four major industries
related to export - garment manufacturing, auto parts manufacturing,
agriculture and ports administration.
While each industrial sector is characterized by unique challenges,
common themes tie all of the cases together.
In addition, the petition highlights a number of threats and violent
acts made against trade unionists in Honduras since the 2009 coup, including no
fewer than 11 murders of trade unionists in the 2009-2011 period. Among the victims were young female teachers
and social security workers like 29-year-old Honduran Social
Security Institute Workers' Union member Vanessa Zepeda, whose body was thrown
from a moving car in February 2010 and Juana
Bustillo, President of the Honduran Social Security Institute Workers' Union,
who was shot and killed by gunmen while going home from a union meeting in the
Honduran capital San Pedro Sula on September 17, 2010.
Seven of the cases discussed in the
petition arose in the export manufacturing sector, most of these in garment
factories. Workplace conditions in
Honduran garment factories are similar to those the world over, including excessive
overtime hours, failure to pay overtime wages and gender discrimination
including sexual harassment, pregnancy testing and termination in the case of
pregnancy. Gender discrimination in
Honduran garment factories is systematized by a minimum wage scale that sets
minimum wages in the garment industry that are significantly lower than those
set for other industries in Honduras.
The cases in the petition, however, focus on workers' efforts to
organize workplace unions and achieve trade union recognition from Honduran
authorities. In each of the cases
outlined in the petition, workers organized a trade union committee and were
fired by factory management once they achieved recognition from the Honduran
labor ministry. In at least one factory,
Petralex, workers elected a half dozen 6-member union leadership committees in
a period lasting over a year. Each time
the factory fired the members of the trade union leadership committee, the
workers elected a new committee. These
terminations occurred before, during and after the recognition process,
resulting in violations of Honduran labor laws that require trade union leaders
and members' organizing activities be protected. When Honduran labor inspectors attempted to
investigate labor law violations in the factories, company security guards refused
entry to them. Petitioners argue that
while workplace inspections were attempted, enforcement was ultimately
ineffective as the Ministry of Labor of Honduras did not utilize police to
facilitate the entry of inspectors and did not fine or otherwise penalize
factory owners for violating labor laws and failing to comply with workplace
inspection requirements. When labor
inspectors submitted reports of labor law violations to Ministry of Labor
officials, these reports were rarely if ever acted upon. Petitioners also argue that the Ministry of
Labor facilitated the registration of an unlawful management-dominated worker
organization in the case of Hanesbrands, which implemented a region-wide human
resources policy of organizing company-led employee organizations referred to
as "collective pacts" to avert the establishment of independent
worker organizations in its plants and threatened employees with termination if
they did not join - practices which are illegal under Honduran labor law.
Most of the agricultural sector
cases discussed in the petition relate to the production of food products,
primarily bananas and melons, for U.S. and global markets, as well as
ornamental plants. One notable exception
is the case of Fundación Hondureña de Investigación Agrícola (Honduran
Foundation for Agricultural Research or FHIA), a private-public partnership
supported by government and private sector businesses. Despite finding numerous violations of
Honduran labor law in the manner in which the FHIA suppressed FHIA workers'
efforts to organize a union, the maximum fine levied against the organization
by Honduran authorities was about $527 U.S.
Petitioners point to the low fine as an inadequate enforcement measure
that shows the Government of Honduras has not enacted labor laws that comply
with ILO standards as required by Chapter 16 of the CAFTA-DR.
Issues encountered in Honduran
agriculture include payment by the tub of produce harvested at rates that do
not meet minimum wage and overtime wage requirements, unsafe working conditions
and long hours. In one of the cases
raised by petitioners, workers were being paid less than 2/3 of the minimum
wage, which is 136 lempiras (a little over $7.00 US) a day, and were
fined 80 lempiras ($4.00 US) if they missed a day of work. After two years of worker complaints, a labor
inspector conducted an inspection of the plant and issued a citation for lack
of individual work contracts, lack of internal work rules approved by the
Ministry of Labor, inadequate payroll records and minimum wage violations. Petitioners allege that the Ministry of Labor
never followed up on or enforced the citation through fines or other
sanctions. In another of the cases
raised by petitioners, workers attempted to reorganize a union that existed at
a banana plantation before it was destroyed by Hurricane Gamma after the
plantation was taken over by new owners.
The new owners terminated the workers involved. While the workers successfully filed
complaints about the plantation's actions and obtained reinstatement orders,
the employer complied only in part - rehiring a small fraction of the
terminated employees, requiring workers to sign no-union pledges in violation
of Honduran labor law and telling the workers that "troublemakers"
would be excluded. Petitioners cite
reports issued by the U.S. Department of Labor to highlight the endemic problem
of child labor in melon and coffee harvesting in Honduras.
The final set of cases raised by
petitioners relate to declining working conditions in Honduras' main port, the
Port of Puerto Cortès. In recent years,
wages for port workers have been reduced by 2/3, primarily through the
termination of full-time employees and utilization of temporary agencies and
short-term contracts. Temporary port
workers are now paid by the container, resulting in wages far below those set
by Honduran law for non-agricultural workers.
Thus, enforcement of minimum wage laws has become an issue in an
industry that once paid workers a wage that allowed them to afford a middle-class
life. Health and safety conditions have
deteriorated along with wages.
Petitioners point to more accidents due to cost-cutting measures taken
by sub-contractors in the provision of safety equipment and due to worker
fatigue as a result of long hours.
According to the petition, port workers frequently work 12-hour shifts
and sometimes work 24-36 hour shifts.
When port workers submit complaints to Honduran labor authorities about
wage-and-hour and other workplace violations, their complaints are dismissed as
being without proof, as port workers are not consistently provided with wage
stubs.
Finally, petitioners argue that
Honduras has failed to comply with its CAFTA-DR Chapter 16 obligation to enact
labor laws in accordance with ILO standards.
In particular, petitioners point to a Honduran law requiring 6 months
advance notice of a work stoppage in the public sector (a provision which may
be applied to port workers in privatized companies) as well as a government
decree issued on November 5, 2010 entitled "National Plan for Employment
by Hours." This decree, enacted in
the wake of the economic crisis that began in September 2008, is a 3-year plan
ostensibly designed to encourage the hiring of more workers through short-term
and contract positions. Petitioners
argue that in practice, the decree weakens labor protections and is being
utilized by employers to weaken unions and degrade working conditions in
violation of Honduran law and ILO standards, as the right of temporary workers
to organize unions is not guaranteed by Honduran law and the decree’s purpose
of using temporary and short-term contracts to attract international investment
conflicts with the CAFTA-DR Article 16.2.2 commitment that member states will
not lower labor standards to attract foreign investment.
The Honduran CAFTA-DR petition
highlights the challenge of raising living and working standards in an era of
free trade. USAID and USDOL have spent
tens of millions of dollars in aid to Honduras and other Central American
nations each year since the CAFTA-DR went into effect. Much of this aid is geared toward improving
the capacity of the Honduran Ministry of Labor to implement labor laws and
erradicate longstanding problems like child labor in agriculture. The experiment of the CAFTA-DR Chapter 16
labor provision is to determine whether the threat of trade sanctions will have
an impact on labor law enforcement in Honduras and the rest of Central
America. These early test cases will
also help determine whether intervention by USDOL through the investigatory and
country-to-country dialogue processes can address regional issues such as the
decline of labor standards in Central American ports as well as development of
regional human resources strategies by private companies that conflict with ILO
standards and labor laws of CAFTA-DR member states.
Under federal guidelines, the OTLA’s
report should be completed within 180 days - around the middle of November 2012
- unless the OTLA determines that an extension is required.
