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Opinion

17 May 2022

Author:
Zamira Djabarova and Naomi Glassman-Majara, American Bar Association's Center for Human Rights

ASTAC, bananas and commerce: The ABC of worker-centred trade

The Biden administration has adopted a “Worker-Centered Trade Policy” which explicitly puts workers, both in the United States and abroad, “at the center of the development and implementation of the United States’ trade policy.” The struggles of an Ecuadorian union to organise workers in the banana sector – which exports $363 million worth of crops to the US - demonstrate why this approach to trade is so necessary.

In December 2020, the United States and Ecuador signed an updated Protocol to the Trade and Investment Council Agreement Relating to Trade Rules and Transparency, one of the first of its kind. Although labour rights concerns are not explicitly a part of this protocol, in marking its entry into force in July 2021, the countries “discussed the critical role high labor standards play in trade relations” and reportedly “exchanged information on their shared vision for a trade policy that is inclusive and worker-centered.” Considering the inherent connection between trade and labour, we interpret the section on good regulatory practices that calls for transparent, participatory and evidence-based regulations to include labour regulations. We believe the United States has unique leverage through the implementation of this Protocol to hold Ecuador to its international obligations related to labour rights and freedom of association.

Workers in the banana industry have been fighting for years to improve their working conditions, including calling for price controls, freedom for union activity, and bans on the aerial spraying of pesticides during workers’ lunch hour. Banana workers face specific challenges in unionisation and collective bargaining as they often work on short-term, informal contracts at multiple small plantations. Ecuadorian law requires that unions have a minimum of 30 workers; often an impossibility in the banana industry where as many as 20,000 workers are employed at plantations with fewer than 30 total workers. Additionally, the government has taken a position that to form a union all members must work at the same company.

In response to these labour violations and structural constraints, in July 2014 a group of banana plantation workers in the coastal department of Los Rios formed the Asociación Sindical de Trabajadores Agrícolas y Campesinos (ASTAC), an industry-level union composed of workers from multiple banana plantations. The International Labour Organization has supported the legal validity of ASTAC as a union in two separate decisions on the need to protect the right to freedom of association for banana workers in Ecuador.

The ABA Center for Human Rights’ new labour program, together with many international partners, has supported ASTAC in its push for registration as an industry-level union. In January 2022, in a positive step for labour rights in Ecuador, the Ministry of Labour registered ASTAC, in compliance with a court decision. This is an important opportunity not just for ASTAC and the banana workers, but for workers in other industries, such as fishing, who are hoping to form industry-level unions.

However, despite this important step in protecting labour rights and freedom of association, the Ecuadorian government is still resisting the necessary subsequent steps of developing regulations for industry-level unions, such as ASTAC. And worse, the Ministry is challenging the underlying decision ordering the registration at the Constitutional Court of Ecuador, holding firm to its position that industry-level unions are invalid.

An amicus brief by the Robert F. Kennedy Human Rights (RFK) Center representing international unions and labour rights organizations concludes the Ecuadorian government’s position against industry-level unions violates well-established principles of international law, incorporated into Ecuador’s constitution, including the protection of the freedom of association.

Last month the government embarked on a dialogue with employers and workers to negotiate a new set of labour reforms, promising that the process will be inclusive. This process should go beyond large unions and include ASTAC, workers’ organizations representing formal and informal sectors, including those in the gig economy, and other CSOs who traditionally have limited access to decision-makers.

As part of its professed worker-centred trade policy and particularly its trade negotiations with Ecuador, as well as implementation of the trade protocol, the US Government needs to stress that Ecuador’s labour reforms must be in compliance with Ecuador’s international obligations, including upholding workers’ right to unionize at industry level. The ILO has already been clear about the need for formal recognition of industry level unions and promulgation of rules to facilitate their recognition by employers and ability to engage in collective bargaining.

Zamira Djabarova is a Senior Legal Advisor for Labor Rights and Corporate Accountability and Naomi Glassman-Majara is a Legal Advisor for the Justice Defenders Program, both with the American Bar Association’s Center for Human Rights. The opinions expressed here are those of the authors. These statements have not been approved by the ABA House of Delegates or Board of Governors, and should not be construed as representing ABA policy.