E8-13676. Bureau of International Labor Affairs; Office of Trade and Labor Affairs; Central America-Dominican Republic-United States Free Trade Agreement; Notice of Determination Regarding Review of Submission #2008-01

AGENCY:

Bureau of International Labor Affairs, U.S. Department of Labor.

ACTION:

Notice.

SUMMARY:

The Office of Trade and Labor Affairs (OTLA) gives notice that on June 12, 2008, Submission #2008-01 was accepted for review pursuant to Article 16.4.3 of Chapter Sixteen (the Labor Chapter) of the Central America—Dominican Republic—United States Free Trade Agreement (CAFTA-DR).

The submission was filed with the OTLA on April 23, 2008 by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and a group of six Guatemalan trade unions. The submission alleges the Government of Guatemala has violated Articles 16.1.1, 16.2.1(a), and 16.3.1 of the Labor Chapter of the CAFTA-DR with respect to five separate cases. In these cases, the submission alleges that the Government of Guatemala failed to enforce its laws with regard to the right of association and the right to organize and bargain collectively. The submission alleges acts of violence against trade unionists, including two instances of murder. In addition, there are further allegations of failure to enforce laws relating to non-payment of severance and social security benefits. These allegations were supported by specific factual descriptions which, if substantiated, could demonstrate that the Government of Guatemala's actions were inconsistent with its commitments under the Labor Chapter.

The objectives of the review of the submission will be to gather information to assist the OTLA to better understand and publicly report on the issues raised by the submission.

DATES:

June 12, 2008.

FOR FURTHER INFORMATION CONTACT:

Gregory Schoepfle, Director, Office of Trade and Labor Affairs, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-5303, Washington, DC 20210. Telephone: [phone] (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

Article 16.4.3 of the Labor Chapter of the CAFTA-DR establishes that each Party's contact point shall provide for the submission, receipt, and consideration of communications from persons of a Party on matters related to provisions of the Labor Chapter and shall review such communications in accordance with domestic procedures. The Department of Labor's Office of Trade Agreement Implementation, which in December 2006 was reestablished as the OTLA in a Federal Register notice (71 FR 76691 (2006)), was designated as the office to serve as the contact point for implementing the CAFTA-DR's labor provisions. The same Federal Register notice informed the public of the Procedural Guidelines that the OTLA would follow for the receipt and review of public submissions. According to the definitions contained in the Procedural Guidelines (Section B) a “submission,” as used in the guidelines, means “a communication from the public containing specific allegations, accompanied by relevant supporting information, that another Party has failed to meet its commitments or obligations arising under a labor chapter.”* * *

On April 23, 2008, Submission #2008-01 was filed with the OTLA by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and a group of Guatemalan trade unions composed of the Union of Port Quetzal Company Workers (STEPQ), the Union of Izabal Banana Workers (SITRABI), the Union of International Frozen Products, Inc. Workers (SITRAINPROCSA), the Coalition of Avandia Workers, the Union of Fribo Company Workers (SITRAFRIBO), and the Federation of Food and Similar Industries Workers of Guatemala (FESTRAS).

The submission alleges first that the Government of Guatemala has violated Article 16.1.1 of the CAFTA-DR Labor Chapter in which the Parties reaffirm their obligations as members of the International Labor Organization (ILO) and their commitments under the ILO Declaration on Fundamental Principles and Rights at Work (1998), and agree to strive to ensure that the Declaration's principles and the internationally recognized labor rights set forth in Article 16.8 are recognized and protected by its law. Second, the submission alleges that the Government of Guatemala has violated Article 16.2.1(a) which states, “A Party shall not fail to effectively enforce its labor laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties, after the date of entry into force of [the CAFTA-DR].” Third, the submission alleges that the Government of Guatemala has violated Article 16.3.1, which states, “Each Party shall ensure that persons with a legally recognized interest under its law in a particular matter have appropriate access to tribunals for the enforcement of the Party's labor laws.”* * *

To support these allegations, the submission outlines five separate cases in which it alleges that workers were prevented from exercising their right of association and the right to organize and bargain collectively. In several of the cases, serious acts of violence and intimidation are alleged, including murder. Furthermore, the submission alleges that domestic labor laws, which would have protected these workers' rights, were not enforced. The submission also alleges a failure to enforce labor laws relating to payments to the Guatemalan Social Security Institute (the health care system) in two instances and appropriate legal severance payments in one instance.

The Procedural Guidelines for the OTLA, published in the Federal Register on December 14, 2006, 71 FR 76691, 76695, specify that the OTLA shall consider six factors, to the extent that they are relevant, in determining whether to accept a submission for review. As relating to FTAs, these are as follows: (a) Whether the submission raises issues relevant to any matter arising under a labor chapter; (b) whether a review would further the objectives of a labor chapter; (c) whether the submission clearly identifies the person filing the submission, is signed and dated, and is sufficiently specific to determine the nature of the request and permit an appropriate review; (d) whether the statements contained in the submission, if substantiated, would constitute a failure of the other Party to comply with its obligations or commitments under a labor chapter; (e) whether the statements contained in the submission or available information demonstrate that appropriate relief has been sought under the domestic laws of the other Party, or that the matter or a related matter is pending before an international body; and (f) whether the submission is substantially similar to a recent submission and significant, new information has been furnished that would substantially differentiate the submission from the one previously filed.

The OTLA has taken these factors into account and has accepted the submission for review for several reasons. The submission raises issues relevant to the CAFTA-DR Labor Chapter and a review of these issues would further the objectives of the Labor Chapter. The submission clearly identifies the person filing the submission, is signed and dated, and is sufficiently specific to determine the nature of the request and permit an appropriate review. If substantiated, the statements in the submission could constitute a failure on the part of Guatemala, a Party to the CAFTA-DR, to comply with its obligations or commitments under the Labor Chapter, and could demonstrate that relief has been sought under the domestic laws.

The OTLA's decision to accept the submission for review is not intended to indicate any determination as to the validity or accuracy of the allegations contained in the submission. The objectives of the review will be to gather information to assist the OTLA to better understand and publicly report on the issues raised by the submission. The review will be completed and a public report issued within 180 days, unless circumstances, as determined by the OTLA, require an extension of time, as set out in the Procedural Guidelines of the OTLA. The public report will include a summary of the review process, as well as findings and recommendations.

Signed at Washington, DC on June 12, 2008.

Lawrence W. Casey,

Associate Deputy Under Secretary, Bureau of International Labor Affairs.