INDICATOR: Implementation/ratification of ILO Core Labour Standards BASELINE & ANALYSIS
Within bilateral trade negotiations, concerns over labour standards are most often invoked as a result of significant disparities in the labour standards between the two sides. Hereto, the concern is that providing the lower standards country (usually the economically lesser developed of the two) with preferential access to the higher standards country (usually the more developed) could create an unlevel playing field, leaving the higher standards country disadvantaged by having to uphold higher (i.e.
more costly) standards. This in turn could lead to exploitation of workers in the country with lower standards and reduced wages in the country with the higher standards (the much publicised ‘race to the bottom’, or what the ILO terms ‘social dumping’).
In order to avoid this outcome, and in an attempt to provide a framework for advancing labour principles and rights, both Canada and the EU have included labour components in their trade agreements.311 Labour clauses such as these not only create a ‘social floor’ through the listing of minimum commitments, but also generally establish an enforcement mechanism as well as a means of promoting cooperation and dialogue.312 It is noteworthy, however, that in contrast to many trade agreements previously negotiated by Canada and the EU, the CETA is not an agreement between two parties that possess drastically different levels of labour standards. Both Canada and the EU are generally regarded as having relatively high labour standards and both have expressed a strong commitment to ensuring core labour standards are adhered to in trade agreements. As such, it would appear that the CETA would be largely precluded from typical concerns of social dumping as intrinsic in many other negotiations.
Given the commitment to and enforcement of core labour standards by each, it is difficult to conceive of an outcome where the CETA leads to an erosion of labour standards and or social dumping in Canada or the EU. This being said, it is not necessarily the case that the CETA cannot have an impact on labour
311 ILO. http://www.ilo.org/global/standards/information-resources-and-publications/free-trade-agreements-and-labour-rights/WCMS_115822/lang--en/index.htm
312 ILO. http://www.ilo.org/global/standards/information-resources-and-publications/free-trade-agreements-and-labour-rights/lang--en/index.htm
134 standards simply because there is an obvious lack of disparity in labour standards between the two sides. One area of particular interest is the Agreement’s ability to foster the ratification and implementation of the International Labour Organisation’s (ILO) Core Labour Standards.
Specifically, the ILO’s Core Labour Standards (CLS) consist of 8 Conventions, which focus on 4 key areas:
i) Freedom of association and collective bargaining (C.87 & C.98) ii) Elimination of forced and compulsory labour (C.29 & C.105)
iii) Elimination of discrimination in respect of employment and occupation (C.100 & C.111) iv) Abolition of child labour (C.138 & C.182)
While each of the EU’s 27 Member States have ratified all eight of these Conventions, Canada has not yet ratified the Forced Labour Convention, 1930 (C.29), the Right to Organise and Collective Bargaining Convention, 1949 (C.98) or the Minimum Age Convention, 1973 (C.138).
It should be noted, however, that while Canada is in the minority313 of countries to have not ratified these Conventions, it should not necessarily be taken to imply that its standards are significantly low in respect to forced labour, collective bargaining or underage workers. As an ILO member, Canada is still required under the 1998 ILO Declaration on Fundamental Principles and Rights at Work ‘to respect, to promote and to realise, in good faith and in accordance with the [ILO] Constitution, the principles concerning the fundamental rights’314 which are embodied in these conventions, even though they have not been ratified. Further, it is not necessarily its opposition to the contents of these conventions, but rather Canada’s different approaches to labour policy among its 13 Provinces and Territories and difficulties in coordinating them that have limited the conventions’ ratification. To this end, in order for Canada to ratify these three conventions and make them legally binding at the national and international level, it is first necessary for the government to ensure compliance at the provincial level:
something that is complicated by the legal difficulties involved.
A particularly impactful outcome would therefore be if the CETA contains provisions that require ratification of the ILO’s 8 conventions of the CLS. Obviously, this would require Canada to ratify the Forced Labour Convention, the Right to Organise and Collective Bargaining Convention and the Minimum Age Convention. Specifically, such an outcome could have particular relevance for collective bargaining and freedom of association in Canada. The number of complaints submitted to the ILO’s Committee of Freedom of Association315 (CFA) that have originated from Canada is greater than those from any other ILO member state. A total of 78 ILO complaints were filed against Canadian federal and provincial labour legislation from 1982-2008, with over 90% found to have been in violation of freedom of association principles.316 As noted by the European Economic and Social Committee (EESC), these complaints often originate over disputes at the provincial level as different legal systems ‘impose restrictions on trade union rights throughout the country’ despite the existence of rights to join trade
313 Canada is 1 of only 9 ILO members that haven’t ratified C.29, 1 of 29 that haven’t ratified C.98 and 1 of 58 that haven’t ratified C.138.
314 ILO. http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang--en/index.htm
315 The CFA examines complaints pertaining to violations of freedom of association, whether or not the country has ratified the relevant conventions. In terms of the ILO’s core labour standards, this would pertain to C.87 and C.98.
316 http://www.labourrights.ca/ilocomplaints.htm
135 unions in place at the federal level.317
The frequency of complaints by Canadian labour organisations suggests that ratifying C.98 could lead to improvements in Canadian workers ability to freely associate and collectively bargain, benefitting employees across a number of professions. As confirmed by Table 24, the majority of the complaints to the CFA made by Canadian labour organisation have been against legislation implemented at the provincial level, making it likely that the impact on workers may vary depending on the province. Given the nature of the majority of recent complaints, it would further appear that government employees may stand to benefit the most by limiting the government’s ability to restrict the right to strike or impose salary freezes on its employees.
Table 24: Number of complaints to the ILO’s CFA by Canadian labour organisations, 1982-2008 Legislation challenged No. of complaints
(1982-2008)
No. of complaints (2000-2008)
Government of Canada 10 0
Government of Quebec 20 7
Government of British Columbia 14 6
Government of Ontario 13 5
Government of Saskatchewan 3 2
Government of Alberta 3 1
Government of Newfoundland & Labour 3 1
Government of Nova Scotia 3 0
Government of Manitoba 3 0
Government of New Brunswick 2 1
Government of Prince Edward Island 2 0
Government of Yukon 2 0
Source: Labourrights.ca
At the same time, the very fact that C.98 would need to be coordinated with provincial labour laws in Canada, likely reduces the ease with which a CETA can require ratification. Ratifying C.98 (as well as C.29 and C.138) would require Canada to comply with its technical requirements – both at the national and provincial levels – making it mandatory that it be incorporated into law so that it supersedes any existing state statutes that conflict with the Convention’s legal requirements. As such, ratifying the ILO conventions could (and likely would) come into conflict with provincial labour laws, requiring that they be altered to conform to ILO standards. The CETA’s ability to obtain consensus from the provinces is likely to be difficult, particularly as ongoing procedures implemented by the Government of Canada have yet to lead to ratification of these conventions. Nevertheless, the EU is in the advantageous position of being able to do so since the CETA has brought Canada’s provinces to the negotiating table.
With or without mandatory ratification of the ILO’s 8 fundamental Conventions, it is possible for the CETA to include a number of additional/alternative provisions that can support and promote labour standards in Canada and the EU while also helping to strengthen implementation of CLS. Improvements in implementation of CLS in Canada and the EU could, specifically, be realised by the CETA’s ability to: (i) promote awareness by workers and employers of their rights and obligations under the law; (ii) provide a mechanism for social dialogue; (iii) establish a mechanism for dispute resolution; and (iv) ensure
136 adequate oversight and enforcement.318
As a first step, a stand alone chapter within the CETA devoted to trade and labour would be beneficial.
Within this chapter, both sides could reaffirm their commitment to maintaining and promoting core labour standards within trade agreements by issuing firm support for the ILO’s Declaration on Fundamental Principles and Rights at Work and declaring their unequivocal commitment not to lower labour standards or protection in order to encourage trade or investment.319
This chapter could also include a number of provisions in relation to the four areas noted above that serve to improve implementation of CLS. Specifically, the CETA’s chapter on trade and labour could include provisions for fostering social dialogue on labour matters, using a tripartite structure to ensure involvement of workers, employers and government. Civil Society could also be encouraged to partake in the process of adopting labour standards. Additionally, the CETA could include provisions to promote public awareness of the labour laws and standards that are affected by the CETA, while ensuring future changes that arise will also be adequately disseminated to the public.
Cooperation and enforcement could be enhanced under the CETA with the inclusion of provisions that call for regular exchange of information, including reports on progress in making advancements in labour standards.320 This could include dialogue on best-practice approaches based on the experiences of Canada and the EU. Additionally, provisions that put in place an inspection regime could further enhance enforcement, particularly provided the regime is accessible and responsive to relevant stakeholders and is imbued with the power to take action when violations are found. To this end, inspections and enforcement would be significantly strengthened by the establishment of a conflict resolution mechanism that can allow stakeholders to take action against infringements of labour laws.
This impartial review panel would be tasked with hearing complaints regarding issues of trade and labour and making rulings.
Beyond the core labour standards of the ILO, both Canada and the EU could agree to take similar measures to promote additional standards that may positively impact workers on both sides. These could include mutual commitments on working to prevent workplace injuries, on non-discrimination of migrant workers, and on minimum standards for wage earners.
Overall, the CETA’s ability to harmonise standards and ensure adequate compliance on both sides will help establish a ‘social floor’, safeguarding an appropriate level of labour standards in both Canada and the EU while ensuring that no form of social dumping arises. Additional provisions that call for dialogue and the further advancement of labour standards could contribute to improved labour standards in both Canada and the EU, causing the CETA to have a positive social impact over the long-term. Cooperation on labour issues between Canada and the EU could be further extended to international fora such as the ILO and WTO, leading to the international promotion of improved labour standards and ratification of the ILO’s CLS in third countries.
INDICATOR: Promotion of the ILO Decent Work Agenda BASELINE & ANALYSIS
The ILO’s Decent Work Agenda (DWA) is designed to help foster the development of decent work across the globe through the implementation of four key objectives: creating jobs, guaranteeing rights at work, extending social protection and promoting social dialogue.321 While the CETA’s chapter on trade may not be able to obtain binding commitments for further implementation of the DWA’s key objectives, it could, nevertheless, contain provisions which explicitly express both sides’ commitment to decent work
137 under the ILO framework.
Further, the EU and Canada could provide a cooperative framework for further advancing the DWA on both sides of the Atlantic by fostering regular meetings to discuss priorities, commit to targets and share information on best-practices in realising components of the DWA. This cooperation could extend into international fora and in dealing with third countries, including commitment to including DWA promoting components in future FTAs.
INDICATOR: Corporate Social Responsibility BASELINE & ANALYSIS
A Chapter on trade and labour within the CETA could have a positive impact on the promotion of corporate social responsibility (CSR) within Canada and the EU, which could further support efforts to strengthen labour standards and decent work on both sides and in third countries. Specifically, the CETA could include provisions that call for Canada and the EU to make efforts to encourage the adoption of CSR by private stakeholders, particularly by multinational enterprises (MNE). Hereto, the CETA could include a mutual commitment to the OECD Guidelines for Multinational Enterprises and the ILO’s Tripartite Declaration on Multinational Enterprises and Social Policy.
INDICATOR: Health BASELINE & ANALYSIS Canada
Mining and manufacturing, respectively, have above average rates of work-related fatalities and injuries.
With employment in nonferrous metal manufacturing and mining poised to increase under the CETA, workers in Canada could, on average, be subjected to more occupational injuries.322 At the same time, a mechanism that fosters regular dialogue and cooperation between Canada and the EU could include commitments to and exchanges on reducing occupational injuries, perhaps fostering improved safety over the long-term (See Box 14 for more discussion).
EU
Metal manufacturing and mining in the EU, though safer than in most countries, remains subject to higher rates of work related injuries and physical health risks than most professions. Therefore, movement out of these occupations may improve overall worker health. However, due to the limited displacement of workers, the impact is expected to be minor.
322 Statistics Canada, Workplace and Employee Survey 2003
138