Good morning. My name is Jeff Vogt. I'm the legal advisor to the Department of Human and Trade Union Rights at the ITUC. The ITUC is a global confederation of 176 million workers worldwide, including workers in Canada.
Again, thank you for this invitation to testify before the Standing Committee on International Trade on the subject of the proposed Canada-Jordan free trade agreement.
While there are many aspects of this trade agreement that deserve careful consideration, as they impact workers both in Canada and in Jordan, I'll focus my remarks today on whether the Kingdom of Jordan currently complies with the commitments it must undertake under the bilateral agreement on labour cooperation. From our view, the simple answer is no.
Article 1 of the agreement on labour cooperation provides that each party “shall ensure that its labour law and practices embody and provide protection” for eight categories of principles and rights, the first four being the ILO core labour rights as set forth in the ILO declaration on fundamental principles and rights of work, as well as four additional categories, including: acceptable minimum employment standards; compensation, such as minimum wages and overtime pay; the prevention of occupational illnesses and injuries; and non-discrimination in respect of working conditions for migrant workers.
While the Kingdom of Jordan has instituted some reforms in recent years, their labour code still falls short of the requirements of article 1. For example, article 98 of the labour code requires a minimum of 50 workers to form a union. According to the ILO treaty on freedom of association, the establishment of a trade union may be considerably hindered or even rendered impossible when the minimum number of members of a trade union is fixed at obviously too high a figure, as in this case, where the legislation requires that a union must have at least 50 founding members.
Second, article 98 of the code also authorizes a tripartite committee to define those industries in which workers may form trade unions and prevents workers from forming more than one union in each of them. Again, the treaty on freedom of association states that establishing a limited number of occupations with a view to recognizing the right to associate violates the principle that workers of any occupation whatsoever should have the right to establish organizations of their own choosing.
Section 10 of the code requires that the treaty set up the general confederation of trade unions. However, the question on whether we need to form a federation or confederation as needed is to be determined solely by workers and organizations. Moreover, a monopoly situation imposed by laws is at variance with the principles of freedom of association.
Although a 2010 amendment eliminated language that specifically forbids migrant workers from joining trade unions, the law includes language that forbids migrant workers from forming unions of their own choice. The law maintains the requirement that founding members be Jordanian nationals. Thus, the right to organize foreign workers is not fully guaranteed; they are not authorized to participate in the establishment of a trade union or participate as leaders.
Further, the ILO recently noted this year that while the labour code forbids accident interference, fines for violations of this provision remain between 50 and 100 Jordanian dinar, which is between $70 and $140 U.S., and which the ILO considers to be far too small to have any decisive impact.
Those are just some of the highlights of the ways in which the current legal framework does not comport with the first article of the agreement on labour cooperation.
Moreover, under article 3 of the agreement on labour cooperation, the Kingdom of Jordan has an obligation to effectively enforce its laws. In the garment sector, conditions have improved somewhat since 2006, when there was an exposé by the national labour committee—and I think the head of that organization will be testifying later today—as well as trade complaints filed by the AFL-CIO over the U.S.-Jordan bilateral trade agreement, which brought attention to horrendous working conditions in the qualifying industrial zones.
Since 2008, the ILO has established the Better Work program, which covers a number of factories in the QIZs with Jordan. However, their third synthesis report, which was issued just a couple of weeks ago, revealed several serious problems in the QIZs.
With regard to forced labour, the ILO noted in a report just a couple of weeks ago:
||The issue of recruitment fees to a third party remains a serious concern. Migrant workers often are required to pay substantial fees to recruitment agents and sub-agents in their home countries. Workers in over 40% of factories indicated that this debt adversely affects their freedom to leave their jobs. There are no provisions in Jordanian law to ensure that workers have not been recruited under such circumstances.
||Better Work Jordan has [also] observed a practice in some factories under which workers who terminate their contracts are required to stay on the job until a replacement is found, sometimes for a period of several months.
With regard to work hours, Jordanian law does not impose a general limit on total overtime or maximum number of total hours per week and thereby tolerates excessively long work days and work weeks, with excessive work hours and compulsory overtime remaining a major concern of Better Work Jordan.
||[Another] area of concern is disciplining workers using physical punishment or humiliating treatment. In six factories...
—which was 25% of those reviewed in the report—
||....it was found that workers were either subjected to verbal or physical abuse, or were threatened if they did not complete their production targets.
With regard to dormitory conditions, there are no minimal standards in Jordanian labour law, and inspectors do not regularly inspect dormitories.
The report found that there were serious issues with regard to ventilation, bathing facilities, sewage, protection against heat or cold, insects, and fire. These issues persisted in nearly half the factories assessed.
The report also noted that “in one factory, thirty-two workers were denied allowances and bonuses for having participated in a strike”.
“In recent months, Better Work Jordan has refined its assessment of freedom of association especially [with regard to] interference and discrimination”, and it noted in its report that it anticipates that in the future there will be many more findings of non-compliance as a result.
The problems are, of course, not limited to the garment export sector. We find violations of the labour code throughout the Jordanian economy, but I think as an initial assessment of the situation, I'll leave it there.
I'm happy to take any questions you have with regard to Jordanian labour law practice.
Thank you for this opportunity to attend and make a presentation to the committee today.
The Canadian Environmental Law Association is an environmental law legal clinic, one of the specialty clinics in the Ontario legal aid system. We're 41 years old, and we're a federally incorporated ENGO. In addition to representation of eligible groups, families, and individuals, we also have a mandate to pursue environmental law reform and public legal education.
We've had an opportunity to review the Canada-Jordan bilateral free trade agreement and the agreement on the environment between those parties, the subject of your committee's study today.
Some of my comments today will echo comments I have made before this standing committee in earlier parliaments in reviewing other free trade agreements—for example, the Canada-Peru agreement and the potential Canada-European Union comprehensive economic and trade agreement.
Our analysis is generally premised on advocating that each level of government in Canada can and must act to protect the environment in diverse ways. We've argued this before the courts, and the courts, including the Supreme Court of Canada, have agreed that we have a strong system in Canada of action on environmental matters by municipal, provincial, and federal governments, and of course first nations, in addition to strong action at the international level.
So when we, as CELA, look at the proposed trade agreements and make recommendations, we're primarily concerned with ensuring that those diverse levels of jurisdiction and ability to act in the aim of strong environmental protection is flexible, well-recognized, and protected.
I'll turn now to specific topics under the Canada-Jordan free trade agreement.
The first one is the national treatment provision. In the proposed Canada-Jordan free trade agreement, there is, as is usual, a proposed national treatment provision. It imports the provisions of the GATT providing for an exception for that national treatment provision relating to environmental measures necessary for the “protection of human, animal or plant life or health”.
We have a recommendation that in this agreement it should be broadened beyond the GATT so that it's not limited just to measures that are necessary; it should include measures “intended” or “relating” to environmental and health objectives.
The second point is that of course there's the agreement on the environment, which is in front of you, as a side agreement. Again, this is not unusual, as I've noticed with various bilateral agreement regimes that I've looked at.
We've reviewed that chapter as well. The definition of “environmental laws” in the environment agreement explicitly excludes public and worker health and public safety. We submit that the environment side agreement should not be limited only to those laws whose primary purpose is environmental protection, but should include other laws that also relate in part to environmental protection. We also think the exclusion of laws relating to public health and worker health and safety, from that side agreement, is not reasonable.
For example, as many of you may know, one of Canada’s major environmental protection statutes, the Canadian Environmental Protection Act, equally protects human health as well as non-human health in environmental matters. Another example is the recently enacted Canadian Consumer Product Safety Act, which has important elements of public health and safety as well as implications for environmental safety in indoor environment contexts.
Other improvements to the environment agreement would include requiring the parties to take account of scientific and technical information and of the precautionary principle, which CELA strongly endorses. The precautionary principle, along with scientific and technical information, is also an important element in occupational health and safety, and should be included in the side agreement—as well as, I might suggest, although I haven't studied it, the labour cooperation agreement; I did notice that there was no language like that there.
This type of language was recently proposed by the EU in the current CETA negotiations, for example, and we commended it to your predecessor committee in our prior appearance.
CELA also would prefer more explicit language obliging the parties to implement in their domestic laws and practices the requirements of multilateral environmental agreements, as listed here—the Stockholm, Basel, and Rotterdam conventions, the Montreal protocol, and the endangered species trade convention—rather than, as it does, merely providing that the multilateral environmental agreements would prevail in case of an operational inconsistency. We'd like the agreement to go further and oblige implementation of those commitments between the parties.
We also have a point on procurement, which is that we advocate the inclusion of provisions allowing for green procurement, for example, to allow for market transformation and in aid of more sustainable practices, products, and services, as well as green jobs in the domestic economies of the parties.
I have a point as well on expropriation. Your study apparently doesn't include the Canada-Jordan investment agreement, but in terms of environmental impact, we don't think we can testify at the committee without mentioning what we think that would do. We would suggest that at the first opportunity the provisions of that agreement that allow for claims of indirect expropriation in any case involving environmental regulation be disallowed, both procedurally and substantively.
The agreement limits such claims—in the terms it provides—in extremely rare circumstances. But this committee, and some of you, may have heard me say before that we think the better approach is that contained in the U.S.-Australia bilateral free trade agreement, which doesn't contain any such provision over and above the regular domestic laws of each party.
More to the point, Australia released a trade policy statement in April 2011—so quite recently, in the scheme of things—stating that it would not negotiate treaty provisions “that would confer greater legal rights on foreign businesses than those available to domestic businesses” or that “...constrain the ability of Australian governments to make laws on social, environmental and economic matters in circumstances where those laws do not discriminate....”
We think that's an extremely sound policy for Canada's context. So we would strongly encourage the adoption of that type of policy for this agreement and all other bilateral trade negotiations. We think that eliminating investor-state provisions beyond the remedies under Canada's domestic law would be a significant improvement here.
We don't argue against appropriate provisions for direct expropriation in domestic and international law. The common law and often statutory law provides strong protection. On the other hand, we've long disputed that public interest regulation amounts to expropriation or that any compensation is due when activities are curtailed because of public interest regulation. We would suggest that if expropriation is provided, it be limited to direct expropriation.
Before I finish that point, the fact that the claims may be brought, even if we don't think they will succeed on the language of the agreement, is, in itself, a problem. It raises the potential for regulatory chill on the domestic, national, and subnational governments; that is, they have to pause and think about whether the regulation they're planning to take could be the subject of such a challenge.
The last point I want to make before concluding and opening it up for your questions and discussion is that as more and more of the agreements are entered into on a bilateral basis, we're starting to see a real patchwork of rules pertaining to the protection, or sometimes the lack of protection, of the sovereign rights of Canada and the provinces and other nations that we're entering into agreements with to establish environmental, health, safety, and labour rights as each of those governments sees fit. Each of these agreements constrains in some way the ability of those governments to act in these areas, even while providing language that purports to protect it.
The fact that those claims can be brought at all we see as highly problematic. We also find very problematic the fact that these claims would be evaluated on a case-by-case basis and that the reasonableness of the government action to protect the environment or its legitimacy or its good faith, for example, might be in play.
To conclude, we strongly encourage that there be improvements in the language—as we've said with respect to other agreements that we've looked at—of the entire agreement and the side agreement to ensure the most beneficial provisions and strong environmental protection and regulation by the parties, and the most sustainable approaches.
We recommend that the committee advise the government that it should return the agreement to negotiation to take into account the above recommendations, including the more preferred expressions of the ability to provide for environmental regulation domestically without hindrance. We think it should extend to strong, precautionary, and protective language in the side agreement and the main agreement, as well as the similar provisions that I noted are contained in the investment agreement.
We also, as I said, recommend that the government adopt a trade policy statement similar to that of Australia's, whereby it would not accord to non-domestic investors any greater rights than domestic investors have.
Thank you once again for the opportunity to present our views.
Yes, I will. The written notes that the committee will get from me this afternoon are lengthier on this very point.
Our contention is not so much on the two states taking issue with each other if they think they've breached the agreement, and then taking that forward for resolution. Our contention on that point is the fact that an investor, a corporation or a person, a legal person, can itself bring a claim against the state for something it did by way of regulating environment, health, or labour. That is the problem.
We don't have that provision here domestically for our own companies. If the Province of Ontario or the Government of Canada passes an environmental regulation, our domestic companies could make submissions and say it's not a good idea; it's going to impact them and there might be unintended consequences. That's all fair enough. At the end of the day, the government weighs everything and says, “We think this measure is very necessary for environmental protection and we've weighed everything.” A Canadian company doesn't get to go to court and say, “My company has now been damaged by that environmental regulation, so you have to pay me money.”
But these trade agreements are putting in that right for the foreign investors to do that. That's starting to create what I call a regulatory chill problem, whereby governments have to think twice, not only in balancing all the interests, but if allegations are made that there are going to be these kinds of claims, do those claims have merit? Might they win? Will the government have to pay compensation?
Even though, as I say, I think the language goes some distance about that, they nevertheless still allow the claims to be brought. We saw that with Dow bringing a claim against Quebec's pesticide code, which was just resolved in recent months, and that was done explicitly because Ontario was thinking about doing a pesticide ban on cosmetic pesticides at the time.
I think it's a very real problem. As for addressing it, Australia and the United States don't have this provision between them. I don't think it's necessary. I think that allowing this kind of provision is going way beyond what's necessary in terms of looking at all of the other interests the government is trying to balance.
Thank you very much for the opportunity to testify about labour rights in Jordan.
When the institute began its work in Jordan, we discovered that over the course of the five years from 2001 until 2006, the United States-Jordan free trade agreement had descended into human trafficking of guest workers, who were stripped of their passports, held under conditions of indentured servitude, and forced to work gruelling hours while being cheated of their wages.
After our report was released, there were some minor improvements. For one thing, many of the guest workers received their passports back again.
Other than that, violations continue. I would like to bring you up to date on one of those violations, which is going on right now, today.
We just released this report yesterday. It is on a factory called Rich Pine, in the Cyber City Industrial Park. It makes clothing for Liz Claiborne and J.C. Penney and Macy's and Kohl's. Its Chinese and Bangladeshi guest workers are working 14 hours a day, seven days a week. They are at the factory 96 hours a week. That's just the norm. They have had only one day off in the last 120 days, in the last four months. The workers are being paid about 70¢ an hour, which appears to be.... It is below the minimum wage in Jordan, which is 74.5¢.
The workers have no rights whatsoever. It's a real sweatshop. Workers are housed in primitive dormitories. The Chinese workers and Bangladeshi workers have no voice. In the dormitories during wintertime, there is not sufficient heat or hot water. Their bathing facilities are a bucket of water; they use a cup and splash water on themselves. The workers are treated with no rights whatsoever.
I would say in that Rich Pine factory, every single labour right under Jordanian law and under the U.S. free trade agreement is being blatantly violated in broad daylight.
I want to make just two other comments.
We know that the U.S.-Jordan free trade agreement was the best free trade agreement ever negotiated by the United States, because it had the core labour rights at the centre of the free trade agreement: the freedom of association, the right to organize and to bargain collectively. What turns out is that the Jordanian government amended the free trade zone.
Do you know what the Jordanian government did? They said that guest workers would have to be employed in the private sector for five years before they could organize a union; the only problem is that guest workers get three-year contracts.
Then, to make it worse, the Jordanian government said that if the guest workers want to organize, they will have to go to their home countries and they'll have to pass legislation, in a country like China, giving the Chinese workers in Jordan the right to have a union.
In other words, the right to organize and to bargain collectively is being blocked by the Jordanian government. We have the documents to prove this, the cables that we received, so I'm very skeptical about the Government of Jordan living up to its rights under Jordanian law and also under the U.S. free trade agreement.
We know right now, 10 years into the free trade agreement, that guest workers do not have the right to organize a union and they do not have the right to collective bargaining under these roadblocks the government has thrown up. Again, this has come out in U.S. government documents.
I want to talk finally and briefly about the Classic factory in Jordan. It's the largest factory in Jordan. There are 5,000 workers from Egypt, Bangladesh, Sri Lanka, and China.
They have $125 million of exports to the U.S., most of it Walmart and Hanes. The workers are working 14, 15 hours a day. Maybe they get two Fridays off a month. The workers are slapped, screamed at. When shipments have to go out, they'll work 18-and-a-half-hour shifts.
But that's the least of it. What we have discovered is that at the Classic factory, Jordan's largest factory, there are scores and scores of young women guest workers who have been raped at the Classic factory.
I'll tell you how we found out about this. We were in Jordan in December of 2010. Young women came to us and gave us disks. They gave us tapes that they had made themselves with their cellphones testifying about the rapes, pleading that we help them, pleading that we stop the rapes.
A young woman, Kamala, told us about the men—it was Anil Santha in this case, but there was also Priyantha and these other people—that:
||I was molested in every way.... That man tortured me. He took a lot of sexual advantages from me…I had to fulfill everything he desired because I was placed in an extremely vulnerable situation and intimidated… My whole body is in pain…. I cannot face my mother and father. I am destroyed. I cannot even change clothes before my mother because Priyantha has destroyed me. I have teeth marks all over my body.
She goes on to say that she was so horrified and humiliated, she would have committed suicide:
||I cannot take my own life because I am extremely poor. I am the only one to take care of my parents. This is why I came here [to Jordan].
This young woman from Sri Lanka came to this Classic factory and was raped repeatedly.
It goes on and on. It's in our report. It's in our updates.
We rescued a young Bangladeshi girl, Nazma, in June of 2011. They took her out of the factory and told her she was going to another factory. She was frightened, as she'd just gotten there. She was working at one of the Classic factories; there are five different Classic factories.
When a supervisor came over and told her she had to go to another factory, she went outside and got in the car with the general manager of the factory, Anil Santha, and they drove. They parked in front of a house. She was confused. It wasn't a factory. She was getting scared. They opened the door, they walked in, and she thought maybe there was a factory through the next door. Of course there wasn't. He threw her on a bed and he raped her. He tore her dress and bit her shoulder. He did this in March of 2011. In May of 2011, he raped her twice again, biting her shoulder and leaving a big black and blue mark.
We're right now involved in additional rape victims' testimonies. We will not let this case go away.
In 2010 the workers went on strike: 2,500 Sri Lankan and Indian workers went on strike. They were tear-gassed and beaten by the police. The demand was to get rid of the general manager, Anil Santha, who was raping the women.
Everybody knows about this. The one reason they can get away with it is that Muslim women cannot talk about being raped without having their husband leave them, their children taken away, or their being ostracized.
I see very big problems in Jordan and the lack of respect of human and women's rights.
I appreciate what you're saying, that it may be more complicated than simply an abuse on the ground, whether that's blatant in all aspects of the economy or just in this portion of it.
We're just going to say that there's a failure on behalf of the U.S. to enforce the rules. However, that certainly doesn't lead me to believe that there would be a failure on Canada's behalf to enforce the rules. We've signed a trade agreement here with Jordan. We signed it in good faith. We expect to see improvements in labour, in the environment, and in respect for human rights. The Jordanians have told us those things will happen.
With other free trade agreements we've signed with other countries around the world.... I happen to be a supporter of free trade. I appreciate your candour and honesty in saying that you have not supported free trade agreements in the past. However, moving forward, we signed a free trade agreement with Colombia, and I want to use this as an example.
Colombia has had major struggles in the past, and it still has some challenges ahead of it, without question. Yet in every single category, life has improved for Colombians. I'm not saying it's perfect, by any stretch of the imagination, but life has improved for Colombians. Freedom of association, ability to travel, personal safety, respect for the environment, ability to find a job—in every single category things have improved for the average Colombian. Again, it's not perfect.
We would expect that this agreement should—and I'm going to use the word “should”—be able to bring some of that to Jordan. I think the whole issue of whether Jordanians themselves work in the factory is a whole other cultural issue, which we're not going to settle here today.
We still buy their products. In the past, when we've seen blatant labour abuses around the world, citizens in the United States, Canada, and the European Union have boycotted those countries. I'm a little bit shocked that, if it's as bad as you say it is, we're not seeing some of that kickback, if you will, from consumers.
We're not experts on the case of Colombia, but I do believe they still have, by far, the highest death rate of trade union people in any country in the world, so problems do remain.
I can tell you, if any of you wanted to go with us to Jordan, I could give you my word that we could hold a meeting with 1,000 or 2,000 workers at the Classic factory, and those guest workers would speak the truth to you if they were guaranteed that there wouldn't be reprisals against them.
We did it already. We went to the Classic factory. I think we did this in 2008. We held a meeting with maybe 2,000 or 3,000 workers in a giant auditorium, and we had the Ministry of Labour there. The workers told the truth about how they were touched and groped, and about how they were beaten, and about how they had to work. In other words, it's relatively easy to find out what's happening, right from the workers' mouths and from their own documentation, and to go to see the dormitories and see how many hours they work.
I think maybe I'm a little out of place here. We are actually researchers, and we are workers' rights advocates, like human rights workers. We don't work at the highest levels of the U.S. government or other governments. Basically, our job is to investigate and to try to improve conditions and help the workers.
I'm leaving tomorrow for Bangladesh. This is what we do. We go on the ground and we do these investigations. We put pressure on the major labels to improve conditions.
We're not very much into theory.