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May 12, 2011
Inside U.S. Trade - 05/06/2011
Administration Declines To Share Colombia Labor Submission With Unions
Posted: May 5, 2011
The Obama administration has not given labor groups an opportunity to review the documents that Colombia submitted last month to show it met an initial set of commitments under a labor action plan meant to pave the way for a vote on the U.S.-Colombia free trade agreement in Congress, sources said.
This has been a source of frustration for those in the labor movement who have requested to view the documents, as they are unable to independently verify whether Colombia fully complied with commitments the plan called for it to meet by April 22, they said.
The Obama administration reviewed Colombia's submission and determined that it had completed necessary steps consistent with the April 22 milestones under the labor action plan, U.S. Trade Representative Ron Kirk wrote in a May 4 letter to the leadership of the congressional trade committees. This enabled USTR to begin technical talks with Congress on the draft implementing legislation for the Colombia FTA, although Kirk noted that Colombia still has more steps to take in accordance with the labor action plan before the FTA can be formally submitted to Congress.
But one labor source said there is still a question of whether Colombia actually fulfilled all of its April 22 commitments under the plan.
This source noted that while Colombia appeared to have submitted the legal and regulatory documents it was supposed to by April 22, some of the more minor commitments had not been met or had been met belatedly.
Specifically, Colombia's prosecutor general's office was supposed to hold periodic meetings with representatives of union confederations and the Colombian labor rights monitoring body known as ENS by April 22 in order to reconcile lists pertaining to the backlog of union-member killings.
U.S. labor groups and congressional staff have pointed out that the prosecutor general's office did not meet with ENS to discuss the lists before April 22 and only this week invited the ENS to a meeting, sources said. However, the Colombian government views itself as in compliance with this step because the prosecutor general's office did in fact meet with one union to discuss the list of backlog union-member killings before April 22, according to an informed source. This source stressed that the reconciling of the lists is a process that takes time and is ongoing.
The labor source also charged that Colombia had not fulfilled its commitment to disseminate to unions by April 22 the relevant guidelines detailing the body of Colombian case law and jurisprudence on the narrowing of the definition of essential services, since no unions had reported receiving such guidance. The labor action plan committed Colombia to collecting this information and disseminating the guidelines by April 22.
In addition, the labor source said that while Colombia had complied with its commitment to set up a website and a telephone hotline mechanism to register labor complaints, the Colombian government had not publicized these tools, so they were not of significant value. Under the labor action plan, Colombia's ministry of social protection was supposed to establish the website and hotline mechanisms by April 22 and begin publicizing them "immediately thereafter."
In the view of the Colombian government, both the commitments on essential services and the phone and internet labor complaint mechanism were fulfilled because the process on both began before April 22, one source said.
In a May 4 statement responding to Kirk's letter on USTR's readiness to begin technical talks on all three FTAs, House Ways and Means Ranking Member Sander Levin (D-MI) and trade subcommittee Ranking Member Jim McDermott (D-WA) emphasized that Colombia still has further steps to take under the action plan, and that they would "continue aggressively focusing on strengthening and implementing the Action Plan."
These key House Democrats said the underlying question raised by the Colombia FTA of whether workers will be able to "exercise their basic internationally-recognized rights and be free from the threat of violence" has not yet been answered. They stressed that the Colombia FTA has to meet the same standard embodied in the Korea and Panama FTAs, as modified by the Obama administration, that trade must be a "two-way street" and workers must have basic rights in order to reduce poverty and help develop a middle class that can buy U.S. goods.
Levin and McDermott also said it is unclear whether the action plan goes far enough in protecting worker rights in Colombia in three crucial areas, all of which are key demands Levin had made previously (Inside U.S. Trade, April 28).
First, Levin and McDermott noted that while Colombia committed to provide the U.S. with a draft of regulations to implement a 2010 cooperatives law, this draft version had not been made public. They said it was unclear how these draft regulations address "significant loopholes which have historically taken away the basic rights of more than a million workers in Colombia." Levin has previously called for "substantive regulations" on the cooperatives law. The law is intended to establish penalties for Colombian employers who use worker cooperatives to avoid direct hiring of workers and therefore skirt collective bargaining obligations.
U.S. labor unions see as largely adequate the steps related to cooperatives established under the labor action plan, which requires Colombia to issue the cooperatives regulation by June 15 and also lays out substantive guidelines these regulations should meet, according to a labor source. However, a lot depends on how well the regulations clarify many key issues, including whether there is a broad enough definition of "permanent core function," this source said.
The cooperatives law aims to deter employers from hiring cooperatives to perform the permanent core functions of their business by establishing penalties for doing so. This source stressed that the regulations should seek to avoid a situation like the one that exists now with sugar refineries, where sugar cane cutters are considered outside of the permanent core function of the refinery and can be employed through cooperatives.
Levin and McDermott in their statement also highlight collective pacts as an area of the action plan that needs to be strengthened. Under the labor action plan, Colombia has committed to amend its criminal code, through legislation to be enacted by June 15, in order to state that it is a crime, subject to imprisonment, to use collective pacts to undermine worker rights to organize and bargain collectively "by extending better conditions to non-union workers in such pacts."
A labor source said these commitments in the labor action plan fall short of the standards called for by the International Labor Organization, which established a "bright line" that employers cannot negotiate with non-union workers if there is a union present in the enterprise. By contrast, the labor action plan allows employers to negotiate with non-union workers just so long as these workers do not get a better deal than the union workers, implying they can negotiate a deal that is equal to the one given to union workers.
Finally, Levin and McDermott argue it is "not clear" that Colombia has yet met the labor action plan steps related to so-called essential services, an area of Colombian labor laws they note is frequently identified by the ILO as inconsistent with international norms. This relates to sectors that are not allowed to strike under Colombian law because they are deemed to be "essential public services."
The lawmakers said they looked forward to receiving the guidance Colombia was supposed to distribute by April 22 detailing the body of Colombian case law and jurisprudence on the narrowing of the definition of essential services.
One labor source noted that the ILO has specifically ruled that the definition of essential services in Colombian law is too broad, as it includes certain areas such as the oil sector that are not deemed in accordance with international norms.
This source said it is not enough for Colombia to disseminate jurisprudence from a limited number of court cases that have whittled down the list of sectors considered essential services, and that it should instead change its law to narrow this definition.