Jennifer Wells: New NAFTA was supposed to be a win for labour. Thanks to tortured language and a lot of vagueness, it’s hard to tell

Jennifer Wells: New NAFTA was supposed to be a win for labour. Thanks to tortured language and a lot of vagueness, it’s hard to tell
The Canada-Mexico Facility-Specific Rapid Response Labor Mechanism — yes that’s what the without-a-“u” labour amendment to the re-signed is called — sounds like a fair labour SWAT team ready to parachute in to ensure the rights of free association and collective bargaining.

Well, we can hope.

So here we are a quarter century later and liberal-minded leaders are being congratulated for new, sharper labour language that sheds such toothless phrases as “encourage cooperation” and “foster transparency” in favour of the more muscular “ability to impose remedies” and ensuring remediation when labour rights have been denied.

Viewed one way, the labour annex effectively complements Mexico’s reformed labour laws, passed last spring, which enshrined such rights as that of collective bargaining. But even after Mexico modernized its labour code, a key provision before ratification of the deal, everyone agreed that words don’t mean much without real enforcement mechanisms.

Maybe I’m splitting hairs here, but when I hear the word “mechanism” I think of a solid, defined structure with a solid, defined function.

I’m not so sure that this new labour deal delivers that. This newly defined “mechanism” will apply when a complainant has a “good faith basis belief that workers at a Covered Facility are being denied the right of free association and collective bargaining.” The process goes both ways. This is a bilateral agreement, with Canada pledging to establish a process under which the Canadian government commits to review complaints against facilities here within 30 days. Scratch that. The Canadian government will “strive” to complete “initial” reviews of complaints within a month. This “domestic process” has not been clearly defined.

New NAFTA leaves winners and losers across North America

But the mechanism isn’t so much a thing as a concept. There will be three lists of “Rapid Response Labor Panelists who are willing to commit to being generally available to serve as Labor Panelists for the Mechanism.” The panelists will serve for four-year terms. At the conclusion of the four-year term, and every four years after, “the Labor Panelists shall submit a report to the Parties commenting on the functioning of the Mechanism.”

All this reads with a vagueness we might expect for an idea that has not yet been tried. I will attempt to précis the important bits: a complainant makes a complaint; the respondent conducts its own review to determine whether a denial of rights exists; if the respondent company agrees that there has been a denial of rights, said company has 45 days to remediate.

You may be wondering here where the “rapid response” part comes in. If there is no response to a complaint within 10 days of it being made, the complainant may request the formation of a rapid response labour panel “to request that the respondent Party allow the panel an opportunity to verify the Covered Facility’s compliance with the law in question and determine whether there has been a Denial of Rights.”

A great deal of requesting and back and forthing and drumming of fingers on tabletops play into the process. What is clear is that the SWAT team analogy falls apart, for the panel has no powers beyond soliciting the opportunity to, say, visit a Tijuana factory to verify the claims. A visitation is deemed to have been refused if after seven days the respondent has not responded to the panel request.

Enough with the tortured language. There are potential penalties for bad behaviour. Suspension of preferential tariff treatment for the manufactured goods in question is the first punishment. If an operator is found to have breached its rights commitments on at least two occasions, punishment could be extended to the denial of entry of those same goods.

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It’s not nothing. But it does sound as though it will take years before it can be seen whether or not this “mechanism” ultimately translates into enforceable labour standards. Labour leaders are calling this a win. Maybe they just collapsed in a state of exhaustion and decided that this deal was better than no deal at all.

And there could yet be an echo of 1993. It’s not just the structure that’s at issue, but whether there’s the will to make it work.
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