Activists protest in Bogota, on March 17, 2016 as part of a national strike organized by labor unions to protest against the economic and social policies of President Juan Manuel Santos. AFP PHOTO / GUILLERMO LEGARIA / AFP / GUILLERMO LEGARIA (Photo credit should read GUILLERMO LEGARIA/AFP/Getty Images)

NZ’s latest trade courtship is an insult to workers’ rights – and workers’ lives

By plunging into negotiations with Latin American countries in the Pacific Alliance, New Zealand maintains its shameful record of failing to hold partners to account on labour abuses, argues Laila Harré.

New Zealand has launched into formal trade negotiations with four Latin American countries, becoming first in line to join the Pacific Alliance as an associate member. We’re favoured by the four countries that make up the Alliance – Peru, Chile, Mexico and Colombia – because we’re seen as “a stepping stone to Southeast Asia, which the Pacific Alliance is targeting for increased trade”, according to Trade Minister Todd McClay. Awesome! NZ is a doormat, just wipe your feet on your way through.

Peru, Chile and Mexico were part of the now-zombified TPPA. With the addition of Colombia, we’re looking at some of the worst abusers of labour rights in Latin America. Here’s a snapshot: 99 trade unionists killed in Colombia since the US and Colombia made a free trade deal that claimed to protect labour rights in 2011; lowering of legal rights (including health and safety laws) for workers in Peru, since the signing the US-Peru free trade agreement which included TPPA lookalike labour conditions; Mexico’s notorious “protection contracts” – sweetheart deals to block real unions. Again, since NAFTA.

In these same Pacific Alliance countries, the Labour Advisory Committee to the US Trade Representative has documented systematic workplace abuse of children, migrants, and agricultural workers. These include forced labour, violence and administrative corruption, and failures to enforce labour laws, not least in export industries.

New Zealand already has a fine record of turning a blind eye to labour abuses when trade and investment are on offer. Even before the TPPA we made a deal with Brunei, where a feudal Sultanate allows only one union (at Shell Oil) to exist. Organising conditions are repressive. Migrant workers (and especially domestic workers) can be imprisoned and caned for overstaying visas. Bondage to brokers is common, with widespread exploitation and violent abuse in the workplace.

Ironically, the TPPA without the US will be a weaker agreement for labour standards than one with the US. That’s because a condition of Brunei, Malaysia, and Vietnam getting beneficial access to the US market depended on them implementing some specific labour law reforms. None of the other countries have made the deal conditional in this way – meaning that under a TPPA11 some of the worst labour abuses and interferences with union building and collective action in the region will go unchecked.

I’ve just completed a legal analysis of the labour chapter of the TPPA, which cheerleaders, including our MFAT and business lobby, have labelled the “Gold Standard” when it comes to using trade and investment as a platform to promote and improve labour standards. For decades, labour advocates, NGOs and some leftie politicians have poured enormous resources into the cause of inserting labour conditions into such agreements. The problem is the same as with most “Third Way” era attempts to put a gentler face on the core tenets of neo-liberalism. It just hasn’t made a difference. And worse, it has helped prolong this model of international economic law at the expense of developing new and democratic alternatives.

The US experience is especially important, because the TPPA Labour Chapter is a replica of other US agreements, with Peru and Colombia for example. These only made it through Congress because of their labour conditions. Yet in practice, the real priority – to access cheap labour – has been stunningly successful, with the quid pro quo – a basic respect for the fundamental labour rights – is ignored. Despite volumes of documented abuses in central and south American states subject to one or other US trade agreement, there is only one case of the US invoking dispute procedures in respect of labour violations. The case, against Guatemala, began in 2008 and nearly 10 years later there’s still no result. In the last few days there have been rumours that the US has lost the case because despite the abuses, they failed to prove an impact on trade – a major deficiency in these agreements which I go into in the full analysis.

In two reports, the US Government Accountability Office (the equivalent of our Auditor General) has strongly criticised a lack of monitoring and enforcement, saying that capacity and procedures remained insufficient even to meet the procedural deadlines set out in the Agreements already made.

This failure of monitoring and enforcement by the biggest player, the US, is important. It’s precisely because of these US style labour standards and enforcement measures that the New Zealand establishment has hailed the TPPA as a gold standard for labour rights. Yet what is very clear is that the overwhelming interest of the parties to these agreements, and the corporates who utilise them, is in the trade and the investment provisions, not the workers or their rights.

A 2016 protest as part of a trade union national strike in Bogota, 2016. Photo: GUILLERMO LEGARIA/AFP/Getty Images

My digging into New Zealand’s own record of holding our trade and investment agreement partners to account on labour abuses has revealed, precisely, zilch. Until the TPPA (which gets it gold stamp because breaches of the labour chapter could lead to loss of benefits), New Zealand has used labour “co-operation” agreements to cover labour rights concerns with the international deregulation of trade and investment.

But despite agreements to develop labour work programmes under each of our earlier FTAs (including with Brunei, and Malaysia, another serial abuser of fundamental rights), New Zealand hasn’t pushed anyone on improving working conditions or honouring the core ILO obligations – ending child labour and forced labour, outlawing discrimination and empowering unions to organise and bargain.

On the contrary, our own greatest contribution to the global record on labour, trade and investment was a blatant reduction of rights for film workers. To attract investment, the Employment Relations (Film Production Work) Amendment Act 2010 (aka the Hobbit law) prevents a class of workers from unionising and engaging in collective bargaining by pretending they are independent contractors. At the time, the law was passed we had already signed up to several MOUs instructing state parties not to reduce these basic ILO rights to attract foreign investment. The fallout? Nothing. And our TPPA negotiating partners just turned a blind eye to our record, as we have to theirs.

When you strip away the legalese, trade and investment agreements are about countries giving access to two things: their people (as producers and consumers) and their natural resources. The model we have signed up to tacks on a concern for labour rights and then fails to honour that concern by holding parties to account. There are examples of alternatives. For instance, here in Aotearoa, when popular pressure and incontrovertible research exposed and opposed the “slave ships” fishing our waters. Then, we forced their reflagging to impose our labour standards. In other words, we took responsibility, putting people, not profit, first.

Imagine the difference that we could make for ourselves and others, if instead of wining and dining trade negotiators and expending countless resources on deals to increase low paid employment on our dairy farms, we fostered scholarships and action for people-and-environment friendly trade and investment deals. There are workers whose lives depend on it.

Laila Harré was Associate Minister of Labour 1999-2002 in the Labour-Alliance Government. She is currently undertaking postgraduate research on international investment agreements and labour standards.

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