CAFTA Must Include Strong Protection for Workers' Rights
Workers' human rights in El Salvador are systematically violated by employers while the government disregards or even facilitates the abuses, Human Rights Watch said in a report released today. From December 8-12, El Salvador will be participating in the final round of negotiations for the U.S.-Central America Free Trade Agreement (CAFTA), a proposed trade pact with profound implications for labor rights.
The 110-page report, "Deliberate Indifference: El Salvador's Failure to Protect Workers' Rights," documents serious violations of workers' human rights and examines the role of the government. It features case studies in the private and public sectors, in manufacturing and service industries, and concludes that workers face an uphill battle to exercise their rights, regardless of the sector. Three of the highlighted companies supplied internationally known, U.S.-based apparel corporations.
Human Rights Watch found that employers delay salary payments, fail to pay overtime due, deny mandatory bonuses and vacation payments, and pocket workers' social security contributions, preventing them from receiving free public health care. Most pervasively, employers use myriad tactics to violate workers' right to freedom of association.
Employers routinely fire union members and leaders, target trade unionists for suspension, pressure workers to renounce their union membership, and deny jobs to union "troublemakers." In this hostile climate, only about 5% of workers in the country have successfully organized. Workers are usually out of luck if they seek redress for these violations. Illegally fired trade unionists are not entitled to their jobs back. Instead, the fine for firing them is so minor that, if imposed at all, it is seen merely as a small cost of doing business. Employers are not explicitly banned from discriminating against trade unionists in hiring and can legally manipulate suspensions to affect union members disproportionately. According to the International Labor Organization (ILO), the country's overly burdensome requirements for union registration are "excessive formalities" that "seriously infringe . . . the principles of freedom of association." The Salvadoran Ministry of Labor further exacerbates the problem by narrowly interpreting the requirements in order to impede union registration.
Even the few protections that exist are barely enforced. Labor inspectors fail to follow legally mandated inspection procedures: they conduct inspections without talking to workers, deny workers inspection results, fail to fine abusive employers, and refuse to rule on issues within their mandate. The Labor Ministry regularly ignores employers' illegal anti-union conduct designed to thwart organizing drives. And in extreme cases, the ministry collaborates with employers to commit labor law violations and abuse workers' human rights, for example by honoring illegal employer requests that workers sign company liability waivers before receiving severance pay.
If workers turn to El Salvador's labor courts for relief, they find long delays and often insurmountable procedural obstacles. The law affords no "whistleblower" protection for coworkers brave enough to testify on behalf of fired colleagues, and there is no guarantee that favorable judgments will be enforced. In the many cases where employers close their factories and flee, proceedings may stall completely because Salvadoran law has no mechanism to allow cases to go forward if defendants cannot be found to be served with legal papers.
The report notes that resource constraints are another obstacle to effective labor law enforcement, with reportedly only 37 labor inspectors covering a workforce of roughly 2.6 million. In recent years, the United States has sent millions of dollars in development assistance to address this lack of enforcement capacity and other shortfalls. But the money has done little to improve respect for workers' human rights.
"Limited resources are a problem, but what you have in El Salvador is a serious lack of political will to protect workers' rights," said Pier. "More funding only helps if there's a desire to enforce the law. What we need here is a fundamental change in the government's attitude toward labor rights."
The report comments that such an attitude shift should be encouraged by strong labor rights provisions in CAFTA but laments that the current proposal is not sufficient. If that proposal were adopted, the trade pact would only require countries to enforce their existing labor laws, even if those laws, like El Salvador's, fail to meet international standards. Instead, CAFTA should require local labor laws to meet international norms and establish a transitional mechanism to ensure that countries' labor practices meet basic standards before trade benefits are phased in.
"If CAFTA goes into effect with the labor rights provisions currently proposed, abuses like those we documented will continue," said Pier. "El Salvador will enjoy ever-greater tariff benefits for goods made by workers whose rights are flouted. That's inexcusable."
The report also calls on El Salvador to strengthen its labor laws by requiring reinstatement for workers illegally fired or suspended for legitimate trade union activity, banning anti-union hiring discrimination, and streamlining union registration requirements according to ILO recommendations. Human Rights Watch urges the Ministry of Labor to uphold workers' human rights by following legally mandated inspection procedures, facilitating rather than obstructing union registration, and refraining from participating with employers in illegal anti-union conduct.
The report is available at http://www.hrw.org/reports/2003/elsalvador1203/
Selected Case Studies
- Before it closed in March 2002, Confecciones Ninos was a maquila-a factory in a free trade zone assembling goods for export-that reportedly supplied garments to U.S.-based corporations such as Wal-Mart, JC Penney, Perry Manufacturing, Kellwood Company (and its subsidiary Koret of California), Kahn-Lucas-Lancaster, and Kmart. A Confecciones Ninos worker told Human Rights Watch, "We were required to meet goals, . . . [but] if we reached our goals, it was because we didn't get up for the bathroom or water. . . . I got a kidney infection because I didn't go to the bathroom . . . or get a drink. I went to the doctor, and he gave me treatment, but he said that I had to drink water and use the bathroom. . . . But the boss doesn't understand that. He's interested in production."
Confecciones Ninos workers began a union-organizing drive in March 2001. In September, they requested the Ministry of Labor to register their union. But the employer responded by calling union members ungrateful traitors and threatening to fire them if they refused to sign statements denying that they had attended the union's founding assembly. Under pressure, five workers signed the statements-enough to bring membership below the minimum number required for union formation. With no further investigation, the Labor Ministry denied the union registration, based largely on the coerced statements submitted to the government at least two weeks past the legal deadline.
- Lido, a baked-goods factory, fired 11 union leaders and 52 union members in May 2002 and between October 14 and November 4, 2002. One of the leaders commented to Human Rights Watch, "The goal of the company is that the union cease to exist. . . . The workers are afraid. . . . They are afraid because the union leaders are outside. When we were inside, we intervened if they were denied permission to use the bathroom."
Lido paid the 52 fired union members the severance pay due for illegal dismissals. But in exchange, Lido required the workers to sign company-prepared job resignations and liability waivers. Under economic duress, the workers signed, not willing to challenge the requirement in lengthy and onerous court proceedings. With resignations tendered and legal claims waived, Lido could not be fined for the illegal anti-union firings nor for illegally dismissing union members in order to destroy the union. Lido thus successfully evaded the law's weak union protections.
And the government partnered with Lido in the scheme. The company sent 22 of the fired workers to the Labor Ministry to claim their severance pay. Government officials refused to turn over the money owed unless workers signed the statements drafted by Lido. The union's general secretary commented, "We consider that . . . [the Ministry of Labor] is collaborating with the company so that the union will cease to legally exist."