There are four, central reasons for Latin America’s poor performance in respecting and protecting key labor rights: (1) many labor reforms across the region have been limited in scope; (2) Latin American states are often ineffective in enforcing those reforms and the laws regarding labor and workers’ rights; (3) the structural and economic reforms at the end of the 20th century limited the power of labor unions and rolled back protections for workers; and (4) the huge role of informal economies and the lack of reliable data on work forces limit knowledge and action in many countries (for example, the Inter-American Commission on Human Rights estimates that close to 70 percent of Guatemala’s labor force is employed by the informal economy).
Many of the labor reforms that have been instituted across the region have been limited in scope and often produced mixed results. For example, although some reforms have eased the criteria for forming unions, they have also tended to fragment organized labor and have also reduced the rights of collective bargaining, a key element of unions’ power to represent their members. As a result, in many countries there are more unions but with less collective power to defend their workers’ rights on issues of salaries and work conditions.
Inadequate financing for the implementation of reforms has also been a challenge, and ministries of labor across the region often do not have the resources to employ sufficient labor inspectors or to collect comprehensive data on employment and wages. Perhaps most important, the series of market-oriented reforms that swept through the region starting in the 1980’s transformed economies, resulted in the liberalization of financial markets and trade, and led to privatization of state-owned enterprises. The transition to more liberal-market economies and state-driven production brought the end of large, protected industries and the partially state-owned enterprises that had served as a means to sustain high employment and local consumption.
Many countries have become increasingly reliant on exports and have attracted foreign direct investment through the use of policies such as Export Processing Zones (EPZ). Although EPZs have helped to link some of the region’s economies to the global production chains, attract investment, and bring higher end production, they have also inhibited unionization as multinational companies subcontract the work as a means to seek lower labor costs and limits on unions and their activities.
International Commitments in
The International Labor Organization has 189 conventions and has 187 member countries. Below, we include a chart that shows the number of conventions ratified by every country in the Americas that is a member of the ILO, as well as the regional average, and for the sake of comparison the average of Europe. Notably, almost every major country in the Americas excluding the United States (which has signed two), Brazil (which has signed seven), and Mexico (also seven) has ratified the ILO’s eight f undamental conventions.
The ILO’s eight fundamental conventions are:
- No. 29: Forced Labor Convention, 1930;
- No. 87: Freedom of Association and Protection of the Right to Organize Convention, 1948;
- No. 98: Right to Organize and Collective Bargaining Convention, 1949;
- No. 100: Equal Remuneration Convention, 1951;
- No. 105: Abolition of Forced Labor Convention, 1957;
- No. 111: Discrimination (Employment and Occupation) Convention, 1958;
- No. 138: Minimum Age Convention, 1973;
- No. 182: Worst Forms of Child Labor Convention, 1999.
Most of the countries in the Americas have signed on to all of the ILO’s eight fundamental conventions. Where the real difference occurs is in the number of countries that have ratified the ILO’s 177 “technical” conventions. Uruguay, Brazil, and Cuba (ironically given its consistent violation of the most basic rights) have ratified a large number of the organization’s technical conventions; 97, 87, and 80 respectively. Others, like the United States, Honduras and El Salvador, have ratified fewer; 11, 15, and 18 respectively.
Even though ratification of ILO and other internationally recognized conventions by countries from the region is a sign of progress, mere ratification does not necessarily guarantee the advancement of progressive labor regimes across countries.
Comparing Labor Rights Performance in the Americas
There is wide variation among countries in the region in the on-the-ground protection of labor rights, both defined internationally and by domestic law. That variation has little to do with how many ILO conventions a state is party to. The ITUC produces an annual labor rights index that ranks 142 countries protections and respect for workers’ rights. The score ranges from 1 to 5+ with a score of 5+ representing the most repressive environment for workers (no guarantee of rights due to the breakdown of the law) and a score of one representing the least repressive type of environment for workers (though with potential sporadic violation of rights).
On page is the ITUC index ranking Latin American countries in ITUC’s Index and the scores of other countries for comparison. Notably, two Latin American countries were ranked in the ten worst countries for working people (Colombia and Guatemala). Also notable is that the ITUC does not include Cuba.
At a global level, the Americas had a combined score of 3.47, surpassing the Middle East and North Africa (4.55), Asia Pacific (3.95), and Africa (3.91) but still falling well behind Europe (2.44). The region has also lost ground since the ITUC’s index was first published in 2014, when it received a 3.12 regional score.
From the graph, Uruguay stands out as the region’s most progressive country for workers’ rights, while Colombia, Ecuador, Guatemala, Honduras, and Mexico rank as the hemisphere’s labor rights pariahs. Most other countries from the region fall between the 24 rankings.
The rankings, though, also betray the ideological bias of the ITUC. While workers’ rights are indeed abysmal in places like Colombia, Guatemala, Honduras, and Mexico, Cuba’s exclusion from the ranking is illogical, and Venezuela’s rating, given its humanitarian disaster and soaring unemployment, defies explanation. While murder of union activists does not occur in Cuba as it does in Colombia and Honduras, the Cuban government continues to deny workers the most basic rights under the ILO, including freedom of association and right to collective bargaining. There is only one official union, the Confederación de Trabajadores Cubanos (CTC), an arm of the governing Communist Party and the state.
Labor Rights in the Context of Free Trade Agreements
As many of Latin America’s economies have become increasingly export oriented, free trade agreements, whether bilateral or multilateral, have played an important role in shaping workers’ rights among the region. For example, in 2007, the Bush Administration and Democrats reached a bipartisan deal commonly known as the “May 10th Agreement” that called for future and pending FTAs to incorporate the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work. At the time, the U.S. had pending trade deals with Colombia, Panama and Peru. The policy enforced the U.S. government’s ability to levy fines and trade sanctions on parties that fail to demonstrate that they are upholding labor, environmental or other internationally recognized standards in their countries. These standards were also reflected in the former Trans-Pacific Partnership (TPP) and its replacement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). As the leading economy in the Americas, the U.S. and its trade agreements with countries in the hemisphere carry a great deal of weight in the definition and protection of workers’ rights. Below we include some of the important discussions that are developing around the context of FTAs.
In June 2017, the Office of the United States Trade Representative (USTR) issued a summary of objectives for the Trump administration’s NAFTA renegotiation. One of the key sections focuses on labor and calls for the subject to be brought into the core of the agreement rather than in a side agreement. One of the objectives is the creation of a senior level Labor Committee that would meet regularly to oversee the implementation of labor commitments and include a mechanism for cooperation and coordination on labor issues. The goals remained in an updated list of objectives released in November 2017 and if approved could spur Mexico into improving workers’ rights under an updated agreement.
In the 10-plus months of negotiations, neither Canada nor Mexico has been satisfied with the U.S.’s demands. Meanwhile, the U.S. has imposed tariffs on select goods and has floated the idea of separating the agreement into two bilateral agreements. As it stands now, the future of the negotiations and NAFTA itself remains unclear —though there have reportedly been breakthroughs in the U.S.-Mexico talks.. With the election of leftist populist Andrés Manuel López Obrador (AMLO), it remains to be seen how a new administration in Mexico will engage with Canada and the U.S. over NAFTA’s labor provisions.
The Trans-Pacific Partnership (TPP) and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)
Countries from the Americas that were set to join of the original TPP included the U.S., Canada, Chile, Mexico, and Peru. Despite the U.S.’s withdrawal from the trade deal in early 2017, all other members continued with the planned agreement and signed the CPTPP in March 2018. As had been established in the original agreement, members of the CPTPP commit to the ILO’s Fundamental Principles and Rights at Work. The labor chapter also calls for all participants to end forced and child labor and to allow workers to form unions and collectively bargain. Moreover, it requires countries—such as Vietnam, Malaysia, and Brunei—whose current labor rights regimes significantly lag behind those of other countries in the agreement, both in law and in practice, to develop plans that outline changes each country will make to modernize their labor regimes before the agreement comes into force.
Other participants, though, like Mexico, that already have relatively progressive labor regimes but under which there are still consistent patterns of labor rights violations, were not required to develop their own plans to bring on the ground conditions to meet normative commitments. As a result, many critics of the original TPP agreement, such as the Labor Advisory Committee (an organization of U.S. labor union representatives) have argued that the agreement will not do enough to standardize and enforce labor rights across all member countries.
U.S.-Colombia Trade Promotion Agreement and the Labor Action Plan
In 2011, the U.S. and Colombia signed a Labor Action Plan that built on the original 2006 U.S-Colombia FTA and aimed to tackle ongoing labor issues in Colombia. Among several objectives, the Action Plan called for expanding the scope of existing government protection plans for union workers and establishing a new Ministry of Labor, dedicated to promoting the creation of dignified jobs and guaranteeing good relations between workers and employees by promoting respect and protection for unions.”
In an important move that same year, Colombia’s Labor Ministry imposed a $1 million fine against a palm oil company that had contracted 3,000 workers through five cooperatives that had been declared illegal, as cooperatives tend to undermine workers’ rights. However, since 2011 actions taken by Colombia’s government to improve labor rights have been limited and the country today ranks as one of the worst in the world for workers’ rights. According to the ITUC, in 2017, 19 Colombian trade union leaders were murdered, the highest in any country, and between January and October of the same year, the Office of the UN High Commissioner for Human Rights (OHCHR) documented the killings of 53 prominent rights advocates and community activists. In 2016 the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), along with four Colombian trade unions, submitted a complaint to the U.S. Labor Department stating that, since the implementation of the Labor Action Plan of 2011, approximately 99 Colombian workers and worker advocates were killed, six workers were kidnapped, and 955 worked received death threats as they tried to exercise their rights.
In the past two decades, Brazilian workers have experienced both gains and losses in their rights due to the series of political and economic challenges to Latin America’s largest economy. During the administration of former president Luiz Inàcio Lula da Silva and the leadership of the Workers’ Party (PT), Brazil was considered a model for trade union rights and labor policy innovation in Latin America. However, since Dilma Rousseff’s impeachment in 2016 and the assumption of power of current president Michel Temer, the policies and preferences of organized labor have come under attack.
Despite his lame-duck status and a divided congress, Temer has managed to pass a series of laws that have rolled back past policies. In July 2017 the Brazilian Senate, in a 50 to 26 vote, approved a Labor Law Reform that was the first major overhaul of labor rules in seven decades. The reform is extensive and goes beyond the scope of this report, but it has generally been seen as a business friendly reform that seeks to reduce the scope for legal action in labor disputes as a means of stimulating Brazil’s underperforming economy.
The reform also made the annual union tax that was previously obligatory for all workers, whether union members or not, voluntary. Those enforced dues were the means through which Brazil’s roughly 11,300 labor unions were able to survive. The new law will reduce their resources and capacity to operate. Nevertheless, there could be a positive effect: Brazil’s famously sclerotic unions will be forced to recruit new members and engage with workers to remain active, something that could prove beneficial for workers in the long term.
The reform also grants employers greater scope in hiring part time workers and outsourcing employees, loosening the country’s inflexible hiring and firing regulations. At the same time, such practices also threaten to create a more part-time, underemployed labor pool. Employers can now hire workers without fixed hours, allowing them to maximize profits by minimizing the amount of time they staff positions. In response to union concerns, a presidential decree that would prohibit employers from rehiring fulltime employees, as part-time workers was passed shortly after the approval of the reform. Additionally, the reform lifted the past requirement that companies hold consultations with unions before large layoffs, easing the process by which companies can trim their labor force.
In July 2014, Cuba accepted a new labor code (Ley 116) in response to decades of demands from the ILO. The new code, adopted by the 6th Communist Party Congress, was presented as part of a broader economic and political opening undertaken by the Cuban government in recent years. Nominally at least, the code attempts to harmonize Cuban laws with the international conventions and demands for compliance. In practice, though, as with other instruments that make up the Cuban legal order, the supposed legal obligations are overruled by the country’s Constitution and its socialist state.
Article 1 of the law states: “The right to work in Cuba is based on principles of production that are characteristic of a socialist workers’ state, in which labor plays an essential role and is applied in accordance with the political, social and economic foundations laid down in the Constitution.”
Article 13 establishes: “Workers have the right to associate voluntarily and to form trade union organizations, in accordance with the foundational unitary principles, its statutes and regulations, which are discussed and democratically approved and act in accordance with the law.”
But Article 5 of the Cuban Constitution, which prohibits workers in Cuba from acting and organizing outside of the progovernment union CTC, means any reform to Cuba’s existing labor laws will likely be largely toothless.
When independent union movements do seek to organize and raise workers’ grievances, the state harasses and refuses to recognize the movements and their leaders. This year, the ILO’s Governing Body ruled in favor of a petition submitted by its subsidiary organ, the ILO’s Committee on Freedom of Association drawing from a report compiled by the Independent Trade Union Association of Cuba (ASIC) recognizing Cuba’s repressive labor environment and citing a long list of individual abuses. The ILO’s approval of the Committee’s petition demands that the Cuban state legally recognize the ASIC and also provide the necessary explanations to all the cases that were presented by the ASIC.
Mexico ranks poorly in the ITUC’s index on workers’ rights, and a recent labor reform has failed to address some of the country’s fundamental issues. In February 2017, a highly anticipated Constitutional Reform to Mexico’s labor justice system became law. The changes reflect years of public advocacy and lobbying efforts by Mexican and international trade union organizations, experts, and other labor rights advocates. However, as of 2018 the reform has yet to be implemented because Mexican lawmakers have not been able to approve a series of secondary laws that are necessary for its implementation.
One of the biggest challenges that has traditionally limited workers’ rights in Mexico is that workers are often excluded from the process of negotiating collective bargaining agreements (CBAs) with employers. Today, it is common practice for employers to sign CBAs directly with unions without workers’ knowledge or consent, and sometimes even before a business begins operations or hires workers. In Mexico, these agreements are known as “employer protection contracts” and are registered at local or federal labor boards. Mexican academics estimate that 80 to 90% of the 600,000 CBAs that are registered across the country are protection contracts, meaning that workers had no say in the terms reached between their union and employer.
The reform elevates the right for workers to be represented by the union to collectively bargain salaries and working conditions. It also shifts responsibility for labor justice from the executive branch of government to the judicial branch, by dissolving the local and federal labor boards and granting labor courts at the federal and local levels the power to adjudicate and issue sentences in labor disputes. Labor mediation now is carried out by specialized and impartial labor conciliation centers that are fully autonomous, and all labor conflicts are subject to one mandatory conciliation hearing before proceeding to the labor courts (at both the local and federal level). In theory, the reform makes it easier for employees to bring up concerns to authorities. Under the past system, employees often face consequences (even from their own union, which is often in collusion with the employer) if they denounce or complain about working conditions or other issues.
The reform passes power from Mexico’s traditionally corporatist unions to employees, giving workers a more direct and free relationship with employers. However, the reform has yet to be implemented and it is unclear whether the secondary laws will ensure effective implementation and state and judicial capacity to enforce the reform’s provisions.