Section IV: Summary of Observations and Reccomendations
This independent review of the implementation of the NAALC during the four years following its adoption has tried to see whether the institutions which it created have worked well, whether experience suggests certain adjustments, and in general whether the Agreement has produced results which would not have been achieved without it. The effort to achieve all the objectives set out in Article 1 of the instrument had to be examined. Certain features of the NAALC first had to be noted: its approach is essentially trinational and not supranational; the fact that it imposes on the Parties a general approach of cooperation, both as regards conducting cooperative activities and the way in which cooperative consultation and evaluation procedures are implemented, as well as the procedures for resolution of disputes; its implementation is essentially based on governmental initiative; finally, in its effort to successfully marry the field of labor to the liberalizing of international trade, it occasionally demonstrates a certain ambivalence towards them.
In institutional terms, it should first be noted that the permanent organs of the NAALC were in a position to adequately ensure its implementation during this initial period, whether through the Commission for Labor Cooperation at the trinational level or, within each country, primarily through the National Administrative Offices (NAOs). This was not an easy task in view of the novelty of the NAALC and, especially, the cultural and economic diversity of the area covered by it.
In particular, so far as the Commission is concerned, the Council led to annual ministerial meetings and various other Ministerial Consultations between the three countries, thus making a trinational forum at the highest level that would probably not have existed without the NAALC. The Secretariat, the Agreement's working arm, was able to equip itself with operational machinery corresponding to this initial stage of implementation of the Agreement. However, it is to be feared that with its present limited resources it will not be able to provide adequately for the future development of objectives of the Agreement, especially as regards the need for a methodical and independent program of comparative research of an economic, legal and institutional nature.
At the national level the NAOs, integrated into the departmental structure of each country, appear to have collaborated with each other and with the Commission up to now. Each one is responsible for examining public communications, and to this end they have adopted rules of procedure which reflect their own national institutional cultures. Essentially such communications are the only source of nongovernmental contributions in the process of determining whether each nation's labor legislation is effective. Greater uniformity between these procedural rules with due regard to differing legal traditions would be desirable, especially with respect to the public character of the review process. Additionally, National Advisory Committees may emphasize the connection with nongovernmental circles and it will be necessary to periodically ensure that they are representative.
The Agreement also provides for the establishment of bodies temporarily created to deal as required with patterns of practice by any Party with regard to technical labor standards: the Evaluation Committees of Experts (ECEs) and Arbitral Panels. The period in question did not result in such formations. When required to consider such matters "in a non-adversarial manner," which is particularly in keeping with the spirit of the Agreement, the ECEs could bring to their subject the benefit of an independent examination by experts who are not associated with any of the Parties. The benefits of this type of intervention should lead to more frequent use of them. As regards the existing scope of the ECEs, a practice of "proactive" Ministerial Consultations, that is, consultations not necessarily associated with the prior review of a public communication by an NAO, could have this result in appropriate cases, as is in any case permitted by the Agreement. Additionally, as the first three Labor Principles were at the heart of the NAO activities and Ministerial Consultations during the period covered, it would seem advisable to examine the reasons, which in any case are not very clear, for their exclusion from the scope of the ECEs.
The cooperative activities have included 38 courses, seminars and conferences, focusing on health and safety, employment and training, and labor legislation and workers' rights. These have led to a greater understanding and appreciation by the participants from each country of the labor conditions and labor laws of the other countries. This makes a major contribution to dealing with mutual problems and providing the basis for future cooperation. This increased understanding, however, is limited largely to the immediate participants in the activities. Much does not reach a wider public because the results are frequently not published and distributed in a reachable form. There is a need for the Secretariat to expand the channels of communications and to distribute as widely as possible the information generated by such activities that are carried on mostly under the aegis of the NAOs. Further, the Secretariat should make use of this information as the basis for further discussion and for research projects.
The research studies have filled gaps in basic knowledge in the labor area. The comparative study of labor markets and labor statistics provides a beginning of understanding of the differing problems in the three countries, and the comparative study of freedom of association, the right to organize, and the right to bargain collectively have clarified and focused many of the problems raised by the submissions. The cross-national studies of standards and practices in the North American apparel industry will provide a model for more specific and detailed studies. The comparative study of plant closure highlighted the differences not only in the laws and practices concerning this special problem but provided insight into the differences in basic premises and values in the three countries.
Remarkably, the Secretariat has not produced the most basic and elementary document, a three-language verbatim translation of the labor laws and derived regulations of the three countries. This should be its first priority.
The Secretariat should expand its comparative research studies, focusing in the future on more narrow and specific problems, and it should widely disseminate the results of the research. These studies should not be random but based on long-term planning and should include not only legal research but also socioeconomic empirical research. One of the products should be a bank of comparable and impartial data that could be confidently relied on by each Party.
The submission process has provided a heretofore unknown cross-border scrutiny of the actual implementation of labor law in each of these countries. The scrutiny of specific cases gives practical meaning to the substance of labor law and its enforcement. It provides for Ministerial Consultation concerning concrete problem situations.
The process is an instrument available to the Parties to identify systematic violations in the application of the labor laws of the other Parties. In the absence of precise guidelines in the Agreement, different national, administrative and judicial traditions lead to different views as to the manner of inquiring into such matters, more specifically with respect to the importance of establishing evidence pertaining to specific situations and with respect to the recourse to public hearings.
The process, however, leads to little concrete action. Although the investigation and hearing has produced substantial evidence that the law has been violated, that procedures lack impartiality, and that the law is not being enforced, no remedy or correction follows.
In part, this is because of the provisions of NAALC and the premises of the submission process. NAALC declares objectives in broad terms but imposes obligations only to enforce existing law. The submission process is designed, as it must be under NAALC, as a fact-finding process, not an educative process with power to order a remedy. Any action must be taken through Ministerial Consultation.
The submission process can, however, lead to recommendations. The Public Report does make recommendations for Ministerial Consultation, and the Ministers can agree on recommended action. Those recommendations, however, have not included any undertaking to take formal or informal corrective action, either to provide some measure of relief to victims of unlawful action or to correct systemic defects. The recommendations in the Public Reports and as a result of Ministerial Consultation have been limited to making joint studies, holding seminars, organizing conferences, calling public meetings, and the Ministers exchanging information and keeping each other informed. It is to be feared the further recurrence of conclusions of this nature in cases involving the same labor law principles will gradually lead to disillusion amongst concerned circles, at least in the United States and Canada.
This self-limitation of the NAOs and Ministers is most troublesome where there is evidence of a failure to provide for fair and transparent procedures. NAALC imposes positive procedural obligations. Unfair procedures violate the Agreement, even though they comply with domestic law. Yet neither the United States NAO nor the Ministers seem willing to declare that certain procedures violate the Agreement, much less recommend changes.
This reluctance to make full use of the Agreement is further indicated by the failure to make use of an Evaluation Committee of Experts to methodically inquire into the enforcement of health and safety laws and other technical labor standards.
In making this independent review we have looked not only to the past four years, but also to the future years. We recognize that four years is a short time to accomplish the enormous potential under NAALC. The Agreement not only introduces a totally new set of institutions, but requires also a totally new framework of thinking, requiring changes in social attitudes. These inevitably take time. The first four years are, therefore, a period for trial and error. Much has been achieved, but the past is only prologue to the future. Our primary concern, as it must be for the NAALC institutions, is for the future. Our observations, questions and recommendations are aimed at contributing to that future. We have looked not only into what has been done but also what can and should be done.
Pierre Verge (Canada)
Clyde Summers (United States)