October 7, 2003
Elaine Chao, Secretary
U.S. Department of Labor
Claudette Bradshaw, Minister
Ministry of Labour, Canada
Carlos Abascal Carranza, Secretary
Secretaria de Trabajo y Prevision Social, Mexico
Dear Secretaries Chao and Abascal and Minister Bradshaw:
As submitters in NAO Submission 2000-01, the Autotrim/Customtrim case, we write to renew our September 6, 2002, request that the workers and nongovernmental organizations (NGOs) that filed complaints under the NAALC, be incorporated into the Tri-national Working Group on Occupational Health and Safety ("Working Group").
Specifically, we propose the creation of a fifth subcommittee, which would complement the four subcommittees that currently exist, with the direct participation of workers and NGOs. The fifth Working Group subcommittee would review the strengths and weaknesses of the NAALC submission process with respect to improving occupational health and safety conditions in the NAFTA countries, by examining the petitions that have been filed, how the petitions have been handled under the NAALC, and their outcomes. As is the case with government representatives, worker and NGO representatives on the fifth subcommittee will require financial assistance to be full and active members.
On June 11, 2002, Mexico and the United States issued a Joint Ministerial Declaration, which purported to "resolve" the Autotrim/Customtrim (AT/CT) case by establishing a government-to-government Working Group on Occupational Health and Safety. In a press release issued after the October 7, 2002, meeting of the Working Group, John L. Henshaw, U.S. Assistant Secretary of Labor for Occupational Health and Safety, asserted that the Working Group process will produce "tangible results, ones that benefit us all by reducing injuries, illnesses and fatalities in all workplaces throughout North America."
We have now waited a year for the "tangible results" the U.S. Department of Labor promised. No such results have been observed. The very same failures to enforce health and safety laws in North America, which were extensively documented in the Autotrim/Customtrim case and in several other NAALC submissions, remain unchanged.
The failure of the Working Group to produce substantive improvements in the lives of real workers is unacceptable. One year ago, Secretary Chao denied our request to participate in the Working Group. Instead, the Working Group’s quarterly discussions have taken place behind closed doors, and behind the backs of the workers, NGOs, news media and the public.
We believe that the Working Group’s exclusion of workers – those with first-hand knowledge of the impact of inadequate enforcement of occupational health and safety laws – largely accounts for the dearth of tangible improvements in the health and safety conditions for maquiladora workers. The refusal to include workers, who have the most at stake, reduces the tri-national meetings to nothing more than "talk shops" among government functionaries. Representatives of the NAFTA governments have had years to talk about how to improve enforcement of existing occupational health and safety laws. We are therefore skeptical about the ability of Working Group meetings that comprise only government officials to produce tangible results.
Government inaction impelled the filing of the Autotrim/Customtrim submission and other complaints under the NAALC in the first place. In 1998 and 1999, Autotrim and Customtrim/Breed Mexicana workers filed written petitions with the Mexican government in which they described in detail the lack of enforcement of occupational health and safety laws at the two plants, and the resulting illnesses and injuries. The workers asked their government to take action to remedy violations of Mexican law. The government’s failure to respond to the petitions or take effective corrective action finally prompted workers, former workers, and NGOS to file the Autotrim/Customtrim submission under the NAALC in 2000.
Both the U.S. NAO and experts from National Institute of Occupational Safety and Health (NIOSH) confirmed the deficiencies described by the submitters in their petitions to the Mexican government, their written NAO submission, and their live testimony at a public hearing. However, Autotrim and Customtrim/Breed Mexicana workers have seen no improvements in health and safety conditions, or in their government’s response to work-related illnesses and injuries.
Detailed recommendations submitted in July 2001 by the workers and their co-petitioners, at the request of the U.S. Department of Labor for use in the NAALC process, have been ignored. These recommendations describe specific, relatively low-cost measures that the NAFTA governments could have already undertaken to generate concrete improvements in the lives of Mexican workers and their families.
Absent active participation and rigorous evaluation by workers and their representatives, the current topics being discussed by the Working Group — the development of a tri-national website, best practices in occupational health and safety management systems, chemical hazard measures, and further training of inspectors — will remain abstractions. Until the governments systematically include those directly affected by poor enforcement policies and practices, the Working Group will continue to be a closed-door process controlled by functionaries who have talked for years about occupational health and safety — with no discernable impact on worker protection in any of the three countries.
We believe that the exclusion of workers and their representatives inappropriately shields government officials responsible for implementing the NAALC from public scrutiny and accountability. One of the fundamental premises of the NAALC is the importance of transparency, openness, and public participation in the administration of labor laws and policy. See, e.g., NAALC articles 1(g), 5, and 7. The secret and exclusive nature of the discussions held by the Working Group thus flies in the face of the NAALC itself.
In May 2002, 35 members of the U.S. Congress wrote the U.S. Department of Labor to express their concern and disappointment with the treatment of the Autotrim/Customtrim case under the NAALC. In August 2002, two U.S. Senators called the formation of the Working Group "an insufficient response to the issues raised by the Autotrim/Customtrim case." Senators Kennedy and Wellstone asked Secretary Chao at least to "include some of the workers who submitted the [Autotrim/Customtrim] complaint and that the working group respond to the recommendations for protecting worker safety submitted by the petitioners in this case."
The proposed fifth subcommittee to evaluate the efficacy of the NAALC complaint process in occupational health and safety cases is particularly critical as we approach the ten-year anniversary of NAFTA, and as government officials and the public discuss additional free trade agreements now proposed in this hemisphere.
We urge you to act affirmatively to include workers and NGOs in a fifth subcommittee to identify, evaluate and eliminate the obstacles to effective enforcement of workplace health and safety regulations throughout North America.
Sincerely,
Monica Schurtman
Associate Professor
University of Idaho College of Law
Garrett Brown
Coordinator
Maquiladora Health & Safety Support Network
cc: John L. Henshaw, U.S. Department of Labor, Washington, DC
Dr. Alberto Aguilar Salinas, Secretariat of Labor and Social Welfare, Mexico City, Mexico
Gerry Blanchard, Director General of the Operations Directorate, Ministry of Labour, Canada
Lewis Karesh, U.S. NAO, Washington, DC
Congressman George Miller, U.S. House of Representatives, Washington, DC
Senator Edward Kennedy, U.S. Senate, Washington, DC