IFC report on business case for workplace childcare reinforces maquiladora workers’ campaign in Central America

MSN 2016

MSN 2016

Lack of quality, affordable child care is a significant concern for working parents in every region in the world, regardless of country or socioeconomic status.  According to the 2017 OECD report The Pursuit of Gender Equality An Uphill Battle, single parents – usually working moms – in the U.S. and Ireland pay up to 45% of their disposable income for affordable childcare.  In countries like Honduras, El Salvador and Guatemala, the lack of quality, affordable child care is just one of several challenges to leveraging working people and entire countries out of poverty.  Other challenges include the lack of adequate social security provisions and inadequate or non-existent early childhood education programs.  Authors of the 2016 IADB study Cashing in on Education: Women, Childcare and Prosperity in Latin America and the Caribbean argue that the key to boosting Latin American countries out of poverty is female labor force participation – and that child care and early childhood education are key policy measures to move more women into paid work outside the home.  Social security contributions made by working women and their employers strengthen social security systems in poorer countries.  Reducing pay gaps between women and men would strengthen social security systems even more.

Maquiladora workers, trade unions and women’s rights activists in Honduras and El Salvador made workplace funded child care a key platform in their workplace advocacy campaign in 2014.  With the collaboration of Canada-based Maquiladora Solidarity Network, they have focused their advocacy efforts on international apparel brands, industry associations and governments to develop and implement viable childcare solutions.

As outlined in MSN’s  guide to legal requirements and international conventions Childcare in Central America, labor laws in Honduras, El Salvador and Guatemala require employers to provide child care facilities for their employees.  In 2014, the Government of Honduras, Honduran trade unions and the Honduran Manufacturers Association entered into a tripartite agreement to work on establishing some form of employer-provided child care program for textile manufacturing workers.  Employers have been slow to fund child care centers due to cost and capacity factors as well as lack of clarity in Honduran law – stalling the process.

IFC Tackling Childcare p. 21

IFC 2017, p. 21.

Reinforcement for Central American maquiladora workers’ campaign for employer-provided child care has come from an unexpected source.  The IFC’s new report  Tackling Childcare The Business Case for Employer-Supported Childcare uses case studies to show that not only is sponsoring child care programs the right thing to do, it is the right thing to do to succeed in business.  As expected, the case studies examined include white collar employers in the IT, financial services, and healthcare industries in wealthy countries like the United States, Japan and Germany.  More to the point to maquiladora workers in Central America, the case studies include blue collar employers in garment manufacturing, agriculture and heavy manufacturing industries in low- and middle-income countries like Jordan, South Africa, Turkey and Brazil.  In fact, the IFC report emphasizes the heightened need for high quality employer-sponsored child care in low income countries, where lack of access to quality early education and care programs can have a long-lasting negative impact on the growing minds of children – and where the economic security of families is threatened when parents must choose between working to provide for their families or staying at home to care for their children.

The report shows that investing in child care improves employee performance by reducing absenteeism, enhancing worker productivity, and increasing employee commitment and motivation.  The positive impression and improved  company reputation resulting from providing quality child care can help companies recruit and retain good employees.  In countries like Honduras, El Salvador and Guatemala where employer-sponsored childcare is a legal requirement, companies can attract more international business by showing their compliance with local laws.  Thus, making an investment in child care programs can be an income generator for companies.

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Making the human rights case for including compensation for workplace injuries in free trade agreements

According to lore, laws requiring compensation for workplace injuries came about as a Grand Bargain between workers and employers.  In exchange for limited liability, employers would ensure that workers receive medical care and wage benefits for workplace injuries without having to prove that the employer was at fault.  This bargain has become frayed and tattered over the last few decades as employers and insurers find ways to shirk their responsibility toward injured workers.  This is especially the case when it comes to immigrant workers, as evidenced by two hair raising reports published by Pro Publica and The New York Times in recent weeks.

For many undocumented workers in the U.S., suffering a workplace injury can lead to detention, deportation and worse, as reported by Michael Grabell and Howard Berkes in their August 16, 2017 Pro Publica article, They Got Hurt at Work. Then They Got Deported.  Although public policy and extensive case law in the U.S. guarantee workers’ compensation coverage for undocumented immigrants, insurers have found a way to avoid paying claims by reporting injured workers to federal immigration authorities. Grabell and Berkes tell the story of father of three who spent a year and a half in jail and immigrant detention before being deported after suffering a severe back injury due to a fall at work.  After the worker’s doctor recommended expensive back surgery, his employer’s insurer reported him to U.S. Immigration and Customs Enforcement (ICE) for using a false social security number.  Other workers find themselves ambushed by ICE agents after giving depositions at their lawyer’s office or attending hearings.  One mother of three who had been in the U.S. since she was a teenager spent years in jail and immigration detention after suffering a workplace injury, only to learn upon finally being released that the father of her children sexually abused their 10-year-old daughter.

Having legal documentation is no guarantee that immigrant workers receive proper compensation for workplace injuries.  In his August 13, 2017 New York Times article Foreign Farmworkers in Canada Fear Deportation if They Complain, Dan Levin reported the story of a father of four from Jamaica who worked in Ontario for 9 seasons under a Canadian temporary agricultural labor program until he was sent home in 2008 after hurting his back while picking peaches.  Although he was permanently disabled, compensation for his injury ended in 2011 because he would be physically able to work as a cashier in Ontario – despite being ineligible for a Canadian work visa and unable to obtain a visa to appear in a hearing appealing the decision.  Migrant workers with temporary labor visas in the U.S. often find themselves uninvited to return to work in the U.S. after they suffer workplace injuries or complain about workplace conditions, encountering extensive cross-border administrative and legal complications when they try to obtain compensation rightly owed them under the law.

In addition to rupturing a century-old Grand Bargain between employers and workers, utilization of federal immigration procedures to avoid full payment of workers’ compensation claims is a violation of the human rights of immigrant workers.  In November 2016, the Inter-American Commission on Human Rights publicly released a report defining the right to compensation for workplace injuries as being within the scope of human rights protection.  In its report on the merits in the case of Leopoldo Zumaya and Francisco Berumen Lizalde, two undocumented  workers who were deported after making workers’ compensation claims, the IACHR found the U.S. to be in violation of its human rights obligations under the 1948 American Declaration of the Rights and Duties of Man.

In particular, the IACHR found that the U.S. violated the undocumented immigrants’ rights under Article II (right to equality before the law) and Article XVI (right to social security).  In the case of Mr. Lizalde (who, unlike Mr. Zumaya, received no compensation before being deported), the Commission found that the U.S. had violated Article XVII (right to recognition of juridical personality) and Article XVIII (right to a fair trial).  In its legal analysis, the IACHR concluded that the right to equal protection applies to nationals and non-nationals alike regardless of their legal status and authorization to work.  The Commission also observed that workers’ compensation programs fall within the definition of “proper conditions” of work under Article 45(b) of the OAS Charter, defined as those that “ensure life, health, and a decent standard of living for the worker and his family…”  These rights apply when the State allows private persons (such as insurers and employers) to act with impunity toward the human rights of others.  Though not integral to its analysis, the IACHR mentioned that countries have an obligation to protect the physical integrity of people within their jurisdiction.

One surprising source of rights cited by the IACHR was the 1994 North American Agreement on Labor Cooperation (NAALC), the supplemental labor accord to the North American Free Trade Agreement (NAFTA).  Under the NAALC, the U.S., Canada and Mexico agreed to promote 11 labor principles, including workplace safety; compensation for workplace injuries and illnesses; and protection of migrant workers.

NAFTA is the only U.S. free trade agreement that includes workers’ compensation in its definition of labor law – though Canada continues to include workers’ compensation in its FTA labor provisions.  In addition to requiring effective enforcement of labor laws, the NAALC contains cooperative mechanisms that could be used by member states to address the complications that arise in the case of cross-border workers’ compensation and other labor cases involving immigrant workers.  Employers and insurers that shirk their obligation to injured workers transfer the cost not only to the injured worker herself, but to the health care system of her country of origin.

Currently, the U.S. NAFTA re-negotiation goals do not mention incorporation of workers’ compensation or protection of migrant workers – but they should.  Labor provisions in FTAs contain mechanisms that can enhance member states’ ability to protect human rights.   While imperfect, the NAALC and labor provisions in other FTAs provide a forum for public petitions and inter-governmental dialogue on important cross-border labor issues.  They have the as yet under-utilized potential to address the kinds of failures in justice administration immigrants encounter. NAFTA re-negotiators should remember that there is nothing more fundamental to a worker and our shared global economy than the integrity of her body and mind – and act accordingly to ensure that workers’ compensation is included among the labor rights protected in any re-negotiated agreement.

UN Special Rapporteur issues report on workers’ human rights to freedom of association and peaceful assembly

image-of-worker-rights-posterUN Special Rapporteur Maina Kiai presented his report on the rights to freedom of peaceful assembly and association in the workplace to the UN General Assembly on October 20, 2016.

The Special Rapporteur on the rights to freedom of assembly and association was created in October 2010 by UN Human Rights Council Resolution 15/21 and renewed in September 2013 (UN HRC 24/5) and September 2016 (UN HRC 32/32).  The current Special Rapporteur Maina Kiai has been serving since May 2011.

General Assembly Report A/71/385 examines the rights to assembly and association in the workplace with a special focus on the most marginalized – global supply chain workers, informal workers, migrant workers and domestic workers.

In remarks made on October 21, Maina Kiai recounted how years before, his human rights NGO in Kenya attempted to assist local workers but encountered friction from the local trade union.  It is thus no surprise that the Special Rapporteur calls for obliteration of “the antiquated and artificial distinction between labour rights and human rights generally.  Labour rights are human rights, and the ability to exercise those rights in the workplace is a prerequisite for workers to enjoy a broad range of other rights, whether economic, social, cultural, political or otherwise.”

The report outlines the international legal framework establishing the principle that Worker Rights are Human Rights.  The rights to peaceful assembly and association are recognized in Article 20 of the Universal Declaration of Human Rights.  They are recognized as first generation human rights in Articles 21 and 22 of the International Covenant on Civil and Political Rights – with Article 22 specifically including “the right to form and join trade unions” within the right to freedom of assembly.

The International Covenant on Economic, Social and Cultural Rights recognizes the rights to assembly and association as second generation human rights.  Article 8 of ICESCR recognizes the rights for individuals to form and join trade unions and for trade unions to create and join national and international federations.  Article 7 of ICESR recognizes other work-related rights as human rights, including:

  • fair wages that guarantee a decent living for workers and their families;
  • equal pay for work of equal value
  • equitable working conditions for women and men;
  • safe and healthy workplaces;
  • equal opportunity in the workplace;
  • rest, leisure and reasonable limits on working hours; and
  • paid vacation and holidays.

The rights to freedom of association and collective bargaining are also enshrined in ILO Conventions 87 and 99.  They are foundational rights essential to the protection of core labor rights in the 1998 ILO Declaration on Fundamental Rights at Work, so States must respect them whether or not they have ratified these 2 conventions.  The Special Rapporteur observes that the Right to Strike has been established in international law for decades and has in fact become customary international law.

States must respect, protect and fulfill the rights to freedom of assembly and association.  States must ensure full enjoyment of these rights for both women and men under Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women.  Many women around the world are excluded from protection under national labor rights regimes because they work in the informal economy.  An estimated 60.7% of the world’s workers toil in the informal economy, where employment relationships are not legally regulated.

Others excluded by law from protection in many countries include migrant, domestic and agricultural workers.  Report A/71/385 declares unequivocally that States that discriminate against or exclude certain groups from protective legislation violate their obligations to respect and protect the rights to peaceful assembly and association.

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families recognizes human rights standards protecting migrant workers.  For both authorized and unauthorized migrant workers, exclusion from legal protection and lack of assembly and association rights are compounded by harsh immigration laws and unscrupulous labor recruitment organizations.  The report points to guest worker programs in Bahrain, Kuwait, Oman, Saudi Arabia, Qatar, the United States, the U.K. and Zimbabwe that legally and structurally deny migrant workers’ rights to assembly and association.  Workers in these programs who attempt to exercise their rights risk being blacklisted, deported, evicted, denied future visas, threatened with violence and physically assaulted.

Violence – including gender- and racial or ethnic-based violence – is frequently used by States and others to deter the exercise of rights to freedom of peaceful assembly and association.  In 2015, trade unionists were murdered in 11 countries – Chile, Colombia, Egypt, El Salvador, Guatemala, Honduras, Iran, Mexico, Peru, South Africa and Turkey.

The Special Rapporteur issued recommendations not only to States, but to Businesses, the ILO, the United Nations and multilateral financial institutions like the World Bank and IMF as well as to trade unions and civil society.

Key among those recommendations to States are:

  • ratification of relevant international and human rights instruments;
  • taking measures to ensure that workers in vulnerable situations have the ability to fully and effectively exercise their rights to freedom of assembly and association;
  • prohibiting companies that fail to respect those rights from bidding on public contracts; and
  • protecting and promoting the assembly and association rights of migrants.

Businesses should:

  • commit to the principle that labor rights are human rights;
  • respect the rights of workers to form and join trade unions and engage in collective action;
  • engage in collective bargaining;
  • refrain from anti-union practices and policies; and
  • implement the Guiding Principles on Business and Human Rights.

The ILO should:

  • set standards to extend rights to freedom of association and collective bargaining to informal workers; and
  • focus on governance gaps for workers in global supply chains.

The UN and MFIs should:

  • consult with trade unions and worker organizations to ensure that assembly and association rights are promoted and protected in their policies and programs.

Civil society and trade unions should:

  • create alliances to monitor the effective implementation of the Rapporteur’s recommendations;
  • commit to the principle that labor rights are human rights; and
  • continue to advocate for equal opportunity to present their views to governments and businesses.

Finally, trade unions should:

  • specifically target outreach and advocacy toward the historically disenfranchised, including domestic, migrant and informal workers.

 

 

Violence against trade unionists, application of labor laws at issue in Colombia’s bid for OECD membership

In July 2016, the U.S. Department of Labor accepted the first labor petition filed under Chapter 17 of the U.S.-Colombia Trade Promotion Agreement (TPA).  Filed by Colombian trade unions and the AFL-CIO, the fundamental argument of the petition is that the Government of Colombia failed to meet its commitments under the 2011 U.S.-Colombia Labor Rights Action Plan (LAP) which were a pre-condition for the U.S. to extend preferential trade benefits to Colombia.  USDOL’s public report on the petition is due in January 2017 unless USDOL determines more time is necessary.

Critical among those commitments were (a) effective implementation a new legal framework to investigate and punish threats and violence against trade unionists; (b) putting a stop to employers’ use of intermediaries and certain types of employment contracts to chill representative trade unionism and avoid compliance with labor laws; and (c) ensuring that labor inspection, administrative and dispute resolution processes respond to worker complaints and deter employer violations.  Over 2,500 trade unionists have been murdered in Colombia since the 1980s.  These murders and threats did not stop after the U.S.-Colombia TPA went into effect in 2012.

A lot is at stake this year for Colombia.  Not only did the Government of Colombia and FARC agree to a Peace Accord ending the 52-year-old Civil War, but Colombia is being considered for accession to the Organization for Economic Development (OECD), where it would join Mexico and Chile as the only Latin American members.

Many of the labor-related commitments the Government of Colombia made during TPA negotiations are also required for accession to the OECD.  If USDOL’s Chapter 17 report confirms petitioners’ allegations, Colombia could be subject to international dispute resolution and lose trade benefits under the TPA – and could jeopardize Colombia’s bid to become a member of the OECD.

The OECD formally launched Colombia’s accession process in October 2013.  This rigorous process subjects Colombia to assessment under 250 legal instruments and formal evaluation by 21 separate committees, including the Employment, Labor & Social Affairs Committee.

The OECD’s Roadmap for Colombia’s accession outlines several labor-related policy goals to be met, including:  improvement of labor market opportunities for women, youth, older people and the unskilled; a financially and socially sustainable retirement and social support system; assistance for the poor and out of work; and better management of migration flows to foster integration of immigrants and their children.  Critically, the Roadmap calls for Colombia to implement policies to ensure effective governance of the labor market and to “ensure the full respect of labour rights, with a particular focus on the rights and safety of trade union representatives” (p. 18).

The OECD released its review of Colombia’s Labour Market and Social Policies in January 2016. Much of the OECD’s analysis mirrors the issues raised by Colombian unions and the AFL-CIO in their USDOL petition.  Three of these areas are: (1) inadequate protection of trade unionists from ongoing threats and violence; (2) shortcomings  in labor law administration and enforcement, including weak labor inspection and fine collection processes; and (3) the tendency among Colombian employers to utilize civil law contracts so workers do not benefit from rights in the Colombian Labor Code and making it difficult for workers to effectively organize independent trade unions and bargain collectively.

The OECD observes that 20 trade unionists were murdered in 2014 and that there were over 300 assaults, threats, harassment and other kinds of violence perpetrated against trade unionists that same year.  The OECD cites conflicting reports about the motivation for murders of and violence against trade unionists – whether as a result of their role as trade unionists or local leaders standing up to armed groups – but emphasizes that improved prosecution of the crimes in close contact with trade unions during investigation would promote greater clarity as to why the violence occurred.  While the Colombian protection program for trade unionists has improved, the program faces a number of challenges such as budget cuts, a lengthy and laborious process for assessing threat risk against trade unionists and corruption scandals that demonstrate inadequate controls.

In addition to discussing and assessing fundamental labor rights issues, the OECD’s review of Colombia’s labor and social policies highlights the country’s need for better social security (including unemployment) policies that are more broadly applied.  Over 52% of Colombia’s workforce is self-employed, with 83% in unregistered businesses not covered by social security.

Observing that comprehensive reform to the Colombian social security and pension system is required, the OECD highlights a number of specific policy recommendations to incentivize more Colombians to participate in social security.  Only about 35% of the Colombian population in retirement age receives a pension – in contrast to 90% on average in the OECD.  Acknowledging Colombia’s introduction of a new unemployment protection system, the OECD notes that the system is underfunded and provides limited support to job seekers.

Many of the structural labor market issues noted by the OECD such as informal work and non-participation in the social security system have a bigger impact on women than men.  Despite the fact that female labor market participation in Colombia has increased over the last few decades, 20% of women aged 16-24 are not active in the labor market or studying (Not in Employment, Education and Training or NEET) compared to 1% of men.  In addition to higher unemployment rates than men and lower participation in formal employment, women in Colombia suffer from a “large and persistently stable gender pay gap” (p. 16).  Fewer women receive health protection or contribute toward a retirement pension so look forward to poverty in their old age.   Laws were passed in Colombia in 2010 and 2011 to make sex discrimination in pay unlawful and extend maternity leave from 12 to 14 weeks, but many Colombian women do not benefit from these protections because they work in the informal sector.

Critics have argued that the Government of Colombia may not be ready for or be deserving of OECD membership or special access to markets and free trade benefits because of ongoing human and labor rights violations.  This may be true.  The Colombian case shows that OECD and U.S. conditionality can contribute to a safer and better society in Colombia though many challenges remain.

A critical assessment: Can Export Processing Zones be transformed into catalytic enclaves for Women’s Economic Empowerment?

In 2011, the International Finance Corporation (IFC) partnered with the World Bank Gender Action Plan and the Government of Canada to publish a study positing the rather novel idea that Special Economic Zones (SEZs – more commonly known as Export Processing Zones or EPZs) might serve as a vehicle for women’s economic empowerment.

The study, entitled Fostering Women’s Economic Empowerment Through Special Economic Zones, provides a comparative analysis of SEZs in eight countries (Bangladesh, China, Costa Rica, Egypt, El Salvador, Jordan, Kenya and the Philippines) and discusses different SEZ initiatives (as well as opportunities and obstacles) that have been developed to contribute to the economic empowerment of women.  The IFC argues that SEZs can contribute to women’s economic empowerment through three dimensions:  (1) fair employment and working conditions; (2) equal access to opportunities for professional investment; and (3) extension of investment opportunities for women.

My recent working paper, A critical assessment:  Can Export Processing Zones be transformed into catalytic enclaves for Women’s Economic Empowerment, considers this novel idea from an international employment and women’s rights perspective.

The idea that EPZs might be utilized as instruments to improve working women’s lives is counter-intuitive.   EPZs have a reputation for sub-standard working conditions and exploitation because they are frequently exempted from local labor laws and other workplace protections.  They are also considered to be a sub-optimal economic development mechanism by the OECD and others.  On the other hand, the IFC’s study points to a number of examples of innovative programs that can be adopted by EPZ administrators – and contains enough frank analysis of obstacles to using EPZ governance structures to empower women – to make its recommendations worth considering.

After assessing the IFC’s idea in light of recent literature discussing the challenges facing workers in EPZs, I come to a somewhat guardedly optimistic conclusion that SEZs and EPZs might serve as a vehicle for policies and programs designed to empower women – but only if EPZ administrators and policy makers change attitudes about independent trade unions and work in partnership with workers, representative trade unions and women’s rights organizations.