Annex 2: Report of the Mexican National Advisory Committee on the First Four Years of the Operation of the NAALC

Placing greater emphasis on cooperation as opposed to confrontation

With regard to the comments requested from this advisory body on the operation and effectiveness of the NAALC, we consider that the large number of events staged by the three countries clearly demonstrates the success obtained by the NAALC. These events have focused on a wide range of topics including study and research activities, as well as others of a more informative nature concerning the labor standards in force in each country. This is especially important if we consider the goals of the Agreement as set down in the Preamble and the objectives related to cooperation, the improvement of labor conditions in the three countries and the right of the Parties to establish their own labor standards.

As members of the Committee, we consider that the cooperative goals and functions of the NAALC should receive greater emphasis over and above the resolution of disputes. Both the NAFTA and the NAALC are agreements that stress cooperation as opposed to confrontation between the Parties.

In view of the many trinational events staged over the last four years and their high degree of success, the National Advisory Committee proposes that events oriented towards research and the exchange of information be strengthened and publicized to an even greater extent. We consider that the NAALC should continue in this direction, since it is by no means recommendable that emphasis continue to be placed on topics reflecting the differences between the Parties.

It is important to continue promoting the exchange of knowledge and experiences, especially those related to labor legislation in the three countries. This factor is indispensable if we are to face the challenges and problems posed by globalization.

As established in the Agreement, we should bear in mind that cooperative activities must be carried out in line with the economic, social, cultural and legislative differences existing between the three countries.

Cooperation activities, the exchange of experiences and seminars should not surpass the scope of the NAALC, so as to prevent their subsequent confusion with proceedings, individual cases or other interventions.

The National Advisory Committee calls on the Parties to respect the spirit of Article 2 of the NAALC, which stipulates full respect for the Constitution of each of the Parties and their right to establish labor standards. The NAALC doesn't contemplate the homologation of labor laws or the reform of labor legislation of one Party as a result of the suggestions or pressures of another Party.

None of the Parties of the NAALC is empowered to bring about any kind of pressure aimed at the homologation of labor standards, the imposition of joint action plans, or the modification of the juridical and institutional labor framework of any of the Parties. We are concerned by the fact that declarations made by Party officials have led to a certain degree of public misunderstanding and have subsequently given rise to the assumption that the mechanisms set down in the NAALC effectively circumvent internal policy or serve for the exertion of pressure between the Parties. Likewise, we wish to express our opposition to the intervention of overseas nongovernmental organizations in the internal disputes of national trade unions.

The functions and limits of the National Administrative Offices (NAOs) should be clearly established. The National Advisory Committee is against the NAOs assuming the role of tribunals.

The National Advisory Committee considers that the function of the NAOs should be clearly observed, since it is entirely unjustifiable that any NAO pertaining to the NAALC take on what are practically the functions of a tribunal. As a result of the emphasis placed by the United States NAO on public communications and individual cases, cooperative activities have been relegated to a second place.

This Committee does not believe that the Mexican NAO should participate in hearings staged by its United States counterpart, since even its observer status would necessarily jeopardize national sovereignty. Mexico should not permit the United States NAO or any other United States agency to assume the role of a jurisdictional or moral tribunal vis à vis events taking place in Mexico. The NAALC does not grant this kind of function to any organization; the creation of a supranational authority to review the legality of national resolutions was never provided for. Public communications were not designed to subject the member nations to proceedings in which persons other than the national authorities may judge the performance of its sovereign power. The legal frameworks of the Parties have different origins. The Parties should therefore not be expected to adapt to or recognize mechanisms which are alien to their traditions and culture.

The NAOs do not possess jurisdictional characteristics and should therefore be limited to facilitating contact, cooperation and mutual support between the signatory countries of the Agreement.

The chief function of the NAOs and the Secretariat should be focused on strengthening consultation mechanisms and the exchange of information by means of technical assistance, joint research projects and the training projects provided for by the NAALC.

Revision of Public Communications

The National Advisory Committee suggests that special care be taken to ensure that public communications do not exceed the limits of the NAALC. The National Advisory Committee is therefore opposed to any given Party attempting to impose standards and decisions upon its counterparts. As members of the Committee, we fully uphold the spirit of Article 42 of the NAALC, inasmuch as the authorities of one of the Parties shall not be empowered to undertake labor legislation enforcement activities in the territory of another party.

Different groups, persons or organizations frequently resort to the United States NAO with the aim of denouncing the supposed violation of Mexican labor legislation. We have noted that these groups often request the intervention of the United States when corresponding legal resources have yet to be exhausted or when the latter are still pending resolution. The authorities are therefore denounced in a false and distorted manner. In all such cases, the National Administrative Offices should be more careful when analyzing and accepting potential public communications.

Public communications were not designed to question labor legislation. The NAALC also states that the resolutions issued by administrative, quasi-judicial, judicial or labor tribunals, matters pending review and other related proceedings shall not be subject to review and may not be reopened under the terms and provisions of this Agreement.

These measures were intended as a mechanism to enable the Parties to understand and further processes involving effective labor legislation enforcement.

We therefore consider that full use has not been made of the potential offered by the exchange of information and dialogue generated by public communications; these mechanisms were clearly conceived for cooperative rather than controversial purposes. It is important to take advantage of public communications to correct erroneous interpretations or those taken out of context due to a deficient knowledge of the respective legal systems.

Limits of the Evaluation Committee of Experts

The National Advisory Committee stresses that the establishment of the Evaluation Committee of Experts (Article 23) embodies three basic limitations that should be closely observed. The Committee shall:

1. Review matters in a non-adversarial manner.

2. Examine "the patterns of practice by Party in the enforcement of its occupational safety and health or other technical labor standards as they apply to the particular matter considered by the Parties under Article 22."

3. The National Advisory Committee believes that the expression "technical labor standards" should be interpreted in accordance with the definitions set down in Article 49, inasmuch as the Evaluation Committee of Experts may not rule on any matter concerning the "freedom of association and protection of the right to organize", "the right to bargain collectively," or the "right to strike." The Evaluation Committee of Experts may deal only with topics related to "labor legislation" and the enforcement of safety and health standards in the workplace.

4. A final limitation is established in point 3 of Article 23 and states that, pursuant to Article 49, the matter under evaluation should be trade-related and covered by mutually recognized labor laws.

While we are in no way attempting to minimize the importance of the communications transmitted between the Parties or the conclusions reached by an Evaluation Committee of Experts, we nonetheless consider that the value of such activities should not be overestimated.

The solution of controversies should not exceed the limits of the NAALC.

Articles 27, 29, 33:3, 36:2 (b), 38, 39:1, Annex 39:2 (a) and Article 49 establish that disputes may only be submitted in the following three cases:

1. Due to a persistent pattern of failure by the Parties to effectively enforce occupational safety and health standards.

2. Due to a persistent pattern of failure by the Parties to effectively enforce child labor standards.

3. Due to a persistent pattern of failure by the Parties to effectively enforce minimum wages.

We consider that procedures governing the evaluation and resolution of disputes should be used only in exceptional circumstances.

The National Advisory Committee believes that Part Five of the NAALC, pursuant to the establishment of procedures for the resolution of disputes, should be implemented only in exceptional circumstances and in a cooperative atmosphere facilitating the resolution of the conflict. This part of the Agreement should be limited to ensuring compliance with occupational safety and health, child labor and minimum wage standards in cases in which the accused Party is shown to have demonstrated a persistent pattern of failure. It also presupposes that the three limitations set down in Article 23 have received prior consideration.

The National Advisory Committee considers that the Secretariat of the North American Agreement on Labor Cooperation should continue with the same functions and structure.

The National Advisory Committee opposes any change in the structure, purpose and function of the Secretariat. Its duties should continue to be to provide support for the Ministerial Council. At a time when states and international organizations have tended to reduce their respective headcounts, it would not seem appropriate to propose a large number of resources and attributes for the Secretariat. This organization should be prevented from growing in terms of its specific weight and action and should not be allowed to become an instrument for exerting pressure and thereby departing from the original purpose for which it was created.

The National Advisory Committee does not believe that the review process should involve the reform of the NAALC.

Article 10:1 (a) states that, within four years after the date of entry into force of the NAALC, the Council shall "review its operation and effectiveness in the light of experience." This article does not specifically mention the renegotiation or reform of the NAALC, since Article 52 states that any amendment of its content requires the consent of the Parties. The review process currently under way is in no way related to any kind of amendment process.