Tuesday, September 27, 2016

USA - Department of Labor Accepts First Labor Petition Under US-Colombia Trade Promotion Agreement

By Tequila J. Brooks

On July 15, 2016, the U.S. Department of Labor accepted the first petition to be filed under Chapter 17 (Labor) of the U.S.-Colombia Trade Promotion Agreement (TPA). The petition was filed by the AFL-CIO and five major Colombian labor federations including the Central Unitaria de Trabajadores (Central United Workers – CUT), the Confederación de Trabajadores de Colombia (Workers Confederation of Colombia – CTC), the Corporación Colombiana para la Justicia y el Trabajo (Colombian Corporation for Justice and Work – COLJUSTICIA), the Sindicato Nacional de Trabajadores de la Industria Agropecuaria (National Union of Workers in Agroindustry – SINTRAINAGRO) and Unión Sindical Obrera (Workers Sindicated Union – USO).

The petition, filed on May 16, 2016, alleged that the Government of Colombia violated a number of its labor-related commitments under U.S.-Colombia TPA Chapter 17 in a manner directly affecting trade and investment. These labor-related commitments include: (1) failure to effectively enforce labor laws; (2) waiver or derogation of existing labor statutes and regulations to incentivize trade; (3) failure to adopt or maintain statutes and regulations consistent with the 1998 ILO Declaration on Fundamental Principles and Rights at Work; (4) failure to ensure that dispute resolution proceedings in labor, administrative and judicial tribunals are transparent and without unwarranted delays; and (5) failure to ensure that final decisions in labor-related adjudications are made available without unnecessary delay. Among the allegations made by the AFL-CIO and its Colombian counterparts was that the Government of Colombia had failed to meet its commitments under the Colombian Action Plan Related to Labor Rights (LAP) of April 7, 2011.

The U.S.-Colombia TPA went into force on May 15, 2012 only after U.S. authorities felt that the Government of Colombia had made significant progress in meeting the requirements outlined in the April 2011 LAP. These requirements included reforms to both the labor and criminal justice systems as well as substantive changes to various Colombian labor laws. The LAP required Colombia’s Labor Ministry to hire and train 100 new labor inspectors in 2011 and total of 480 over a 4-year period – and for the Finance Ministry to approve a budget allocation to pay for the new labor inspectors. The Colombian Labor Ministry was also required to improve complaint and dispute resolution mechanisms and to conduct outreach to the public, employers and workers.

To address concerns expressed by the U.S. Congress, trade unions and human rights advocates, the 2011 LAP negotiated between the U.S. and Colombia required specific reforms to Colombia’s Criminal Code to address two main issues: (1) employers’ use of intermediaries to avoid labor law compliance and (2) the need for investigation and punishment of threats and violence against trade unionists. Colombia has been described as the most dangerous country in the world for trade unionists. Over 2,500 trade unionists have been murdered in Colombia since the 1980s. Under the LAP, the President of Colombia committed to issuing a directive to the National Police assigning 95 full-time judicial police and prosecutors to investigate criminal cases involving union members and labor activists. The LAP also required Colombia’s Ministry of Interior and Justice to issue a Ministerial Resolution expanding the scope of persons entitled to special protection to include labor activists, persons engaged in active efforts to form a union and former trade unionists. The LAP specifically requires that a budget be allocated for special protection of trade unionists and labor activists from threats and violence.

The substantive changes required by the LAP to Colombia’s labor laws centered on employers’ use of cooperatives, temporary agencies and collective pacts to avoid compliance with fundamental labor rights. The essence of these legal reforms was that employers may not utilize third parties as intermediaries with employees performing “permanent core functions” of their operation. Export sectors of particular concern in Colombia include the palm oil, sugar, mines, ports and flower sectors.

In their May 15.2016 labor petition under Chapter 17 of the U.S.-Colombia TPA, Colombian and U.S. trade unions point out that Colombia’s conformity with its 2011 LAP commitments has been superficial and incomplete – and that the U.S. government did not require effective implementation of LAP commitments before the TPA entered into force. Petitioners observe that while the Government of Colombia agreed to establish and fund a 95-person police force dedicated to investigating and punish threats against trade unionists, cases are still not meaningfully investigated and prosecuted. Over 1,466 threats and acts of violence against trade unionists have taken place since the TPA went into force, including 99 assassinations, 6 kidnappings and 955 death threats – with an 87% rate of impunity for murder of trade unionists. The National Protection Unit has been accused of diverting funds intended for protection of at risk individuals. Although Colombian trade unions have filed 1,146 criminal complaints since 2012, no employer has been convicted under the new labor and criminal regimes. In addition, while additional labor inspectors were indeed hired by Colombia’s Ministry of Labor, they were hired on a temporary basis.

On the topic of new legislation banning employer use of work cooperatives as an intermediary to avoid unionization of workers and compliance with other labor and social security requirements, petitioners observe that while the use of “work cooperatives” has declined, use of a new form of labor intermediation called contratos sindicales (syndical contracts or employer-friendly unions) has arisen. These contratos sindicales do not reflect collective bargaining. Their number has increased form 50 in 2010 to 1,925 in 2014. Petitioners cite research studies from 2015 and 2016 (including a January 2016 OECD report) for the proposition that 73% of the workforce in Colombia is informally employed with no access to social security.

Petitioners outline specific cases in the oil and sugar sectors to show how the Government of Colombia has failed to meet its commitments under the 2011 LAP and Chapter 17 of the U.S.-Colombia TPA. In one of these cases, 1,100 oil workers began to unionize with the support of Unión Sindical Obrera (USO) at the Canadian-owned Pacific Rubiales Energy Montajes site in February 2011. Their grievances included excessive use of labor intermediaries, excessive hours, health and safety problems and failure to provide adequate equipment and food. A member of the Colombian National Police was part of the employer’s negotiating team. On July 18, 2011, 4,000 workers held an assembly at the Montajes site. 150 police entered labor camps using rubber bullets and percussion bombs and spraying tear gas into tents. Petitioners observed coordination between the Colombian Army and Police to inhibit communication between trade unionists and physical attacks against workers.

In September 2011, 1,000 of 3,493 workers who joined the union were fired and replaced by other workers. After the Colombian Labor Ministry pressed the employer to engage in collective bargaining with USO, the employer signed a Labor Normalization Agreement with an organization called the National Union of Energy Workers (UTEN) which had no relationship with the workers. Five years later, UTEN has still not negotiated a collective bargaining agreement on behalf of the workers. A database was established to exclude USO members from the work site and a check point was put in place at the work site to make sure they did not enter.

In February 2012, USO filed an administrative complaint with Colombia’s Ministry of Labor about the employer’s actions (including mass firings and blacklists) at the Montajes site. In April 2013 - over a year and 3 months later - the complaint was dismissed, as were subsequent motions to reconsider and appeals. The reason given for dismissal was the lack of a direct employment relationship with the employer since workers were employed by a number of intermediaries. The Government of Colombia did not initiate criminal action against the employer for failing to comply with new labor and criminal provisions. In fact, arrest orders were issued against two USO trade union members who testified against the company.

Petitioners’ arguments challenge both the substance and application of Colombian labor laws and the new criminal regime established to protect trade unions. They point out that the ILO’s Committee on Freedom of Association (CFA) issued a report observing failure on the part of the Government of Colombia to protect freedom of association and the right to collective bargaining. One of the arguments made by petitioners is that the Government of Colombia failed to effectively enforce Article 63 of its labor intermediation law which makes it unlawful to utilize intermediaries to contract workers performing core permanent functions of a company. Petitioners note that excessive focus by Colombian labor authorities on the particular legal form “work cooperative” has allowed the similar forms of the same phenomenon to arise with different names and legal forms.

The primary innovation in the May 2016 petition is the argument made by U.S. and Colombian unions that the Government of Colombia has not complied with Chapter 17 of the U.S.-Colombia TPA because it failed to effectively enforce certain provisions of its Criminal Code. In particular, petitioners argue that Articles 200 and 347 of Colombia’s Criminal Code – which impose both fines and jail time as penalties for violations for labor laws and threatening or intimidating trade unionists – are labor laws within the meaning of Chapter 17 of the U.S.-Colombia TPA. Article 200 is directly related to the internationally recognized right of freedom of association and Article 347 was specifically adopted to bring Colombia into compliance with the 1998 ILO Declaration.

While U.S. DOL has declined in the past to consider criminal matters (including threats against and murder of trade unionists and worker rights advocates) to be within the scope of the NAFTA labor side agreement (NAALC) in Mexico and Chapter 16 (Labor) of the CAFTA-DR in Guatemala, petitioners’ argument under the U.S.-Colombia TPA is likely to be accepted in this case since a good portion of the 2011 U.S.-Colombia LAP requires specific changes to Colombia’s Criminal Code and practice to better protect trade unionists from threats and violence. A similar basis was arguably not present under the NAALC or CAFTA-DR Chapter 16. A successful outcome under the U.S.-Colombia TPA may set a precedent for stronger protection of trade unions and worker rights advocates from violence by U.S. authorities in future cases, however.

Under regulations governing petitions under FTA labor provisions, U.S. DOL is required to issue a report in response to the May 15, 2016 petition by January 15, 2017 unless it determines that more time is required.

Petitioners have laid the groundwork for this case to go to international arbitration under Chapter 21 (Dispute Resolution) of the U.S.-Colombia TPA by arguing that failure by the Government of Colombia to effectively enforce labor laws in the oil and sugar sectors directly affects trade between the two countries. Thus far, the only case to go to the international arbitration phase under U.S. FTA labor provisions is the 2008 Guatemala case under the CAFTA-DR. After several delays, the arbitration decision in that case is scheduled to be released in early September 2016.