Human Rights Watch welcomes this opportunity to present views regarding whether Ecuador meets the eligibility criteria of the Andean Trade Promotion and Drug Eradication Act (ATPDEA). These criteria include those in the original Andean Trade Preferences Act (ATPA), as well as those added in the ATPDEA, which extended and expanded the ATPA in 2002.
In September 2003 and September 2004, Human Rights Watch argued for partial or total suspension of tariff benefits when we submitted Andean Trade Preferences Act (ATPA) petitions to the Office of the U.S. Trade Representative (USTR). In those petitions, we detailed Ecuador’s failure to meet the ATPA and ATPDEA workers’ rights criteria.1 However, USTR has yet to rule on these petitions, and Ecuador has made little progress in addressing the violations of workers’ rights that we identified. Therefore, these comments serve only to reinforce and update our prior petitions, particularly our September 2004 submission. That petition is included as appendix I.
The Current Situation
Ecuador continues to fail to protect workers’ rights to freedom of association and to organize and bargain collectively and to fail to take adequate measures to address the worst forms of child labor. Human Rights Watch believes that Ecuador continues to fall short of meeting the ATPDEA eligibility criteria, as it does not uphold internationally recognized workers’ rights. Human Rights Watch further believes that Ecuador has not adequately demonstrated good-faith intention to take the steps necessary to satisfy the criteria. Most significantly, Ecuador has failed to fully implement the labor rights provisions of agreements it reached with the United States in October 2002, prior to receiving ATPDEA beneficiary status. These agreements addressed Ecuador’s inadequate legislation on freedom of association and its failure to effectively enforce existing laws governing child labor and the right to organize.
Specifically, Ecuador has failed to propose effective reforms to address any of the important deficiencies in its labor laws governing workers’ right to organize, described at length in our September 2004 ATPA petition. Ecuadorian employers who engage in anti-union discrimination still face only the threat of minimal fines for violating the law.2 Workers dismissed for union activity have no right to reinstatement; anti-union hiring discrimination and employer interference with workers’ organizations are not explicitly prohibited; the right to form industry- and sector-wide unions is not clearly guaranteed; and a minimum of thirty workers is still required to form a union, despite ILO Committee recommendations that the number be lowered. In practice, employers continue to take advantage of these shortcomings in the law to violate workers’ human rights by retaliating against workers for engaging in union activity, erecting often insurmountable obstacles to the formation of workers’ organizations, and generally creating a climate of fear that deters workers from exercising their right to freedom of association.
Although Ecuador issued an executive decree on subcontractors in October 2004, as discussed below, the decree is so weak that it falls far short of meeting its goal of establishing a regulatory framework to prevent subcontractors from being used to violate workers’ right to organize. The Labor Code still contains legal loopholes that allow employers to impede workers’ right to freedom of association through the unlimited use of subcontracted labor to perform employers’ normal, everyday work activities.
In addition, while Ecuador has also taken the laudable step of selecting at least twenty-two child labor inspectors as required by law, as detailed below, the inspectors are unable to effectively perform their duties and Ecuador continues to demonstrate a lack of commitment to the elimination of harmful child labor. Ecuador has yet to issue implementing regulations, as required by law, for its new Code for Children and Adolescents, adopted over two years ago, and has failed to amend the Labor Code to conform with the Code for Children and Adolescents’ child labor provisions. Ecuador also continues to fail to adequately fund and implement meaningful social protection measure to prevent child labor and effective rehabilitate former child workers.
Furthermore, as discussed in our September 2004 ATPA petition, Ecuador has also yet to fully investigate either the May 2002 anti-union violence on the Los Alamos banana plantations or the police response to that violence, failing to prosecute the perpetrators or sanction those police officers who may have responded inappropriately.
Developments Since September 2004
Ecuador’s Inadequate Executive Decree on Subcontracting
In our September 2004 ATPA petition, we analyzed a draft executive decree on subcontracting under consideration in Ecuador to address the use of subcontractors to impede workers’ freedom of association. We specifically recommended that Ecuador:
- allow subcontracted workers to organize and bargain collectively with the person or company for whose benefit work is realized if that person or company, in practice, has the economic power to dictate, directly or indirectly, the workers’ terms and conditions of employment;
- limit the percentage of subcontracted workers in any workplace to a maximum of 20 percent of the total number of workers;
- limit the use of third-party contractors to those providing workers to perform temporary or complimentary services and those operating independently and autonomously, with their own capital and personnel, to perform specific, discrete jobs; and
- codify the following provisions of the draft executive decree on third-party contractors:
- article 3, to provide that if third-party contractors violate laws or regulations governing their operations, their subcontracted workers shall be legally considered direct employees of the main company;
- article 11, to establish that subcontracted workers must receive the same salaries and benefits and enjoy the same employment conditions as employees at the same level hired directly by the main company; and
- article 21, to ban third-party contractors from having business partners, associates, managers, legal representatives, or administrators who also hold such positions with the main employer or who have only one client.
However, the executive decree on subcontracting issued on October 5, 2004, is significantly weaker than previous drafts. Of the three draft articles described above—articles 3, 11, and 21—only article 21 appears in the final version. Although the decree establishes a limit on the percentage of subcontracted workers in any workplace, the limit is 75 percent of the total workforce, rather than the 20 percent we had recommended. The decree includes none of our other recommendations and does nothing to address the other violations of workers' right to organize that we have identified and that infringe ATPDEA eligibility criteria.
In addition, the decree contains a loophole by which individuals acting as subcontractors in the agricultural sector may be exempt from many of its provisions. As Human Rights Watch documented in our 2002 report, Tainted Harvest: Child Labor and Obstacles to Organizing on Ecuador’s Banana Plantations, the use of individual subcontractors and their hired work teams is common in Ecuador’s banana sector, creating a serious obstacle to workers’ right to freedom of association. By exempting these individual subcontractors from many executive decree provisions, Ecuador further reduces an already weak decree’s potential for positive impact on workers’ human rights.
As a result of these serious shortcomings, even if fully enforced, the executive decree will likely fail to effectively prevent subcontractors from being used to undermine workers’ right to freedom of association in Ecuador. In addition, implementation of the decree is off to a rocky start, as the Ministry of Labor has extended by seven months—until July 31, 2005—the December 31, 2004, deadline by which, according to the decree, all subcontractors covered by its terms were to have registered with the Labor Ministry.
Child Labor Inspectors: Inadequate Funding, Training, and Infrastructure
Since September 2004, Ecuador has selected additional child labor inspectors to reach at least the full complement required by law—twenty-two.3 Twenty-three child labor inspectors have reportedly been selected, with an additional one or two slated for hire soon. Human Rights Watch applauds this step.
Nonetheless, since January 2005, many of the child labor inspectors reportedly do not have labor contracts and they are not receiving their salaries. They do not have funds for operating expenses, still lack basic infrastructural and logistical support, have inadequate offices and few computers, and lack other basic supplies. The newly hired inspectors have received far less training than other inspectors. The new child labor inspectors have reportedly only received two days training, as compared to the roughly seven and a half days for inspectors hired in 2004 and the three months for those hired in 2003. Inspections are currently sporadic and spotty at best, and the results are reportedly not being fully or properly processed.
While the Ministry of Labor has developed and outlined plans for child labor related activities and programs, including inspections, for FY 2005 at a cost of upwards of U.S.$300,000, Ecuador’s FY 2005 budget includes no money for any of them. The Ministry of Labor has requested the funds, but the matter is still pending, and in the interim, money is lacking. Human Rights Watch believes that it will be very difficult for the child labor inspectors to carry out their duties if they are not paid and given adequate infrastructure, logistical support, and training.
Conclusion
Human Rights Watch believes that Ecuador continues to fail to “provide internationally recognized worker rights,” as required by the ATPDEA, and has not taken meaningful “steps to afford internationally recognized worker rights,” as required by the ATPA. Ecuador, therefore, continues to fail to meet ATPDEA eligibility criteria. As we have repeatedly stated, we believe that this continued failure should result in total or partial suspension of Ecuador’s ATPDEA benefits.
[1] In determining whether to designate a country an ATPDEA beneficiary, the President must consider “[t]he extent to which the country provides internationally recognized worker rights, including . . . [t]he right of association . . . [and] [t]he right to organize and bargain collectively,” and “[w]hether the country has implemented its commitments to eliminate the worst forms of child labor, as defined in section 507(6) of the Trade Act of 1974.” 19 USC Sec. 3203(b)(6)(B)(iii),(iv). The APTA, for its part, establishes that the President shall not designate any country a beneficiary “if such country has not or is not taking steps to afford internationally recognized worker rights . . . to workers in the country.” 19 USC Sec. 3202(c)(7).
[2] If an employer engages in anti-union discrimination or otherwise violates a worker’s right to organize but does not fire the worker for engaging in union activity, the employer’s conduct can only be sanctioned with a fine of up to U.S. $200 if imposed by the Ministry of Labor’s regional Labor Directorate and up to U.S. $50 if imposed by labor inspectors or labor courts. Labor Code, art. 626.
[3] Ibid., art. 151(f).
[4] Trade Act of 2002, Title XXXI, “Andean Trade Promotion and Drug Eradication Act,” Sec. 204(b)(6)(B).
APPENDIX: SEPTEMBER 2004 PETITION REGARDING ECUADOR’S ELIGIBILITY FOR ATPA DESIGNATION
Human Rights Watch welcomes this opportunity to present views regarding whether Ecuador meets the eligibility criteria provided for in section 204(b)(6)(B) of the Andean Trade Preferences Act (ATPA), as renewed and amended by the Andean Trade Promotion and Drug Eradication Act (ATPDEA), to qualify for trade benefits. In determining whether to designate a country an ATPA or ATPDEA beneficiary, the President must consider “[t]he extent to which the country provides internationally recognized worker rights, including . . . [t]he right of association . . . [and] [t]he right to organize and bargain collectively,” and “[w]hether the country has implemented its commitments to eliminate the worst forms of child labor, as defined in section 507(6) of the Trade Act of 1974.”4
Human Rights Watch takes no position on unilateral trade preference programs such as the ATPA and ATPDEA, per se, but we take an active interest in workers’ human rights. We believe that such programs can provide meaningful leverage to promote workers’ rights, but only when they include meaningful, enforceable labor rights protections and those protections are vigorously and consistently enforced.
