Online veröffentlicht: 05. Jan. 2021
Seitenbereich: 245 - 280
DOI: https://doi.org/10.2478/bjals-2020-0022
Schlüsselwörter
© 2021 Ronald C. Brown, published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
Anticipation for a successful negotiation of a post-Brexit U.S.-UK FTA is high. Both President Trump and Prime Minister Johnson are eager to finalize the trade deal. But there are certain realities and obstacles to surmount, some of them political, including a third-party, EU, indirectly influencing the negotiations. While UK has a transitional period until December 31, 2020, absent an extension, to reach an exit deal with EU, including an FTA, both sides have significant unresolved issues.
As of July 2, 2020, the negotiations were as follows. “Negotiations between the U.K. and European Union over their future relationship broke up a day early on Thursday amid warnings that big differences still exist between the two sides. Barnier highlighted the UK's “red lines” on the ECJ, fishing and the need to break away from EU law. He said the EU would still insist on a level playing field to ensure fair competition between the two sides, a “sustainable” fishing solution, as well as an effective dispute-resolution mechanism.” Ian Wishart, The UK will continue to be committed to the EU Charter until 2021 when it ceases to be binding on the UK. For a general introduction to the Charter, see,
As those negotiations progress, the US presidential elections approach, and as much as the Trump Administration may want to finalize a U.S.-UK FTA, the U.S. Congress must approve it. Congress may not want to provide President Trump with a pre-election trade victory and Congress could hold up final approval.
Benjamin Laker, Justin Millar,
The UK also is working to replicate existing EU deals with non-EU countries. The EU has more than 40 trade agreements with around 70 countries. During the transition period, EU trade agreements continue to apply to the UK. As of June 2020, the UK had signed continuity deals covering over 8% of total UK trade with close to 50 countries or territories, including Switzerland, Liechtenstein, Chile, Israel, and South Korea. … Also, as part of its “Global Britain” strategy, the UK is taking steps to pursue new trade deals. … Rather than rolling over the EU-Japan FTA, Japan seeks to quickly negotiate new terms with the UK in time for Japan to pass an FTA in autumn. The UK also launched FTA negotiations with Australia and New Zealand and seeks to join the regional Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) …. U.S. Trade Representative (USTR) Robert Lighthizer has committed to pursuing a comprehensive agreement that would be subject to congressional approval and not a limited, ‘skinny’ deal. He warned, however, that negotiations will take time and likely not be complete in advance of the upcoming presidential election.
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The agenda for the labor issues likely will flow from each country's prior FTA obligations; for the U.S. it will be the USMCA and for the UK, it will be the EU's CETA. Both FTAs agree to the ILO core labor obligations, USMCA, Art. 31.1–31.22.
The recent USMCA provides obligations on gender discrimination, including gender identity and LGBTQ+, and pay gap issues; it also deals with migrant workers’ rights, a hot issue in each country, as well as family care and paid medical leave, and it recognizes the right to strike. CETA, which included UK as an EU Member at the time of the signing, also has a list of progressive labor obligations. These include labor standards committing the UK to the ILO Decent Work Agenda and the Declaration on Social Justice for a Fair Globalization that are more progressive than those required by the USMCA.
CETA, Art. 23.3 Multilateral Labour Standards and Agreements, Can.-E.U., Oct. 30, 2016, O.J. (L 11) 23. (a) Health and safety at work, including prevention of occupational injury or illness and compensation in the case of such injury or illness, (b) Establishment of acceptable minimum employment standards for wage earners, including those not covered by a collective agreement; and, (c) Non-discrimination in respect of working conditions, including for migrant workers.
The article in Part II identifies the labor obligations agreed to by the Parties in their previous FTAs and sets them up as likely agenda items; Part III compares these agenda items with existing labor legislation in each country and identifies potential trouble spots likely to be put on the negotiating agenda; Part IV provides analysis of the challenges of uncertainty and the likely emerging agenda for negotiation of the labor issues in the U.S.-UK FTA; Part V concludes.
UK's trade realignment with the EU following Brexit matters significantly on the level of labor and human rights standards in the US-UK negotiations. Is the UK still bound to EU standards and the European Charter and other EU legal institutions?
The UK formally left the EU on 31 January 2020, and there is a transition period which is due to end on 31 December 2020. “During this 11-month period, the UK will continue to follow all of the EU's rules and its trading relationship will remain the same.”
The UK likewise must evaluate the risk of completing a UK-U.S. FTA before reaching agreement with EU on its future arrangement. The U.S.-UK trade (import, export, and services) is reported for UK to be at about 15 percent of its trade versus UK-EU trade is at about 49 percent. U.S. standards are often lower than that of EU, e.g., on food and health service drugs; and loss of EU trade protections could affect the viability of FDI and supply chains using UK as a base.
Luke McGee,
The UK's position on a trade deal with EU was first presented by Prime Minister Boris Johnson.
Rowena Mason,
“The UK aims for a relationship based on ‘friendly cooperation between sovereign equals’ with both sides respecting each other's ‘legal autonomy’. It will not abide by EU rules and states the UK ‘will not negotiate any arrangement in which the UK does not have control of its own laws’, will not accept any ‘obligations’ to be aligned with EU laws, or the ‘EU institutions, including the court of justice’. The UK wants a “comprehensive free trade agreement” but in the same paragraph states it wants a Canada-style agreement ‘supplemented’ by a range of other agreements including ‘fisheries law enforcement … judicial cooperation in criminal matters, transport and energy’. [Re]Workers’ rights: Here the government is committing to ‘reciprocal commitments not to weaken or reduce the level of protection afforded by labor laws and standards.’ However, it wants to reserve the right to ‘adopt or modify its labor laws.’”
Lisa O’Carroll,
A leaked draft of the EU's early proposals for the Brexit agreement affecting trade (UK-EU FTA) shows EU proposals would make some actions of future British governments irreversible, such as “social rights” which include labor rights.
“The draft document also includes a demand that the UK notify Brussels in advance of any plans for “major” new regulations, before they are proposed to the UK parliament.” Jon Stone,
The agreement drawn up by the European Commission and seen by The Independent insists that “future levels of protection” brought in by both sides must be maintained as a condition of UK access to European markets. The plan goes further than a simple “non-regression” pledge to maintain existing rules at the point of Brexit, and means any future UK government that brings in new social rights could see its changes become untouchable, as long as they are endorsed and matched by Brussels. The rule is the latest bid by the EU to ensure Britain does not unfairly deregulate itself into “Singapore-on-Thames” after Brexit, to unfairly undercut European businesses with lower standards.
Article LPFS.2.28 of the draft agreement, headlined “Future levels of protection” states that “where both parties have increased ... the level of labour and social protection above the level referred to in Article LPFS.2.27 [Non-regression of the level of protection], neither party shall weaken or reduce its level of labour or social protection below a level of protection which is at least equivalent to that of the other party's increased level of labour and social protection.” It is suggested this means “that if a future UK government brought in new rights and those rights were matched by the EU, they could not be repealed by a later UK government …” – without further mutual arrangements with EU. Stone,
The EU also insists on the requirement that the UK commit in writing to remain in the jurisdiction of the European Court of Human Rights. The document says both parties must have a “continued commitment to respect the European Convention on Human Rights.”
Stone, “The UK plans to publish its own draft for the proposed agreement “shortly”, with chief negotiator David Frost having said he will make the text available “before round two next week [in April 2020],”Stone, “Nathalie Loiseau MEP, former French minister of European affairs and member of the European Parliament's UK Coordination Group told The Independent: No one can ignore now that the times ahead of us are challenging and that they require more cooperation, not less, more solidarity, not less, more coordination, not less. The way we envisage the future EU-UK relationship is based on our understanding that being independent doesn’t prevent us from deciding freely to be stronger together. This is why common high standards are so important, for the safety and security of consumers, in order to preserve jobs, to protect businesses which are about to be severely challenged. My message to the British authorities: ideology doesn’t save jobs and it doesn’t save lives. The time is right for good old British pragmatism and to join forces.” Stone,
It is likely the Parties to the U.S.-UK FTA will draw upon recently negotiated FTAs, which for the U.S. would be USMCA and for the UK would be CETA, negotiated by the EU for its members, which at the time included the UK. The UK would also likely look to keep other EU residual obligations remaining after its withdrawal from the EU is final, perhaps including the Charter of Fundamental Rights of the European Union (EU Charter) and labor standards in a UK-EU FTA, if negotiated.
Charter of Fundamental Rights of the European Union, 2012 O.J. (C 326) 2.
USMCA, Art.23.1–23.17.
The
Each Party agrees to maintain in its statutes and regulations, and practices thereunder, for the following rights, as stated in the basic ILO core labor standards in the ILO Declaration on Rights at Work, including the freedom of association (and now including the USMCA, Art. 23.3(1) a–d. USMCA, Art. 23.3(2). Wages are further defined to include “acceptable conditions of work with respect to minimum wages” include requirements under that Party's labor laws to provide wage-related benefit payments to, or on behalf of, workers, such as those for profit sharing, bonuses, retirement, and healthcare. USMCA, Art. 23.1(e) note 1.
USMCA, Art. 23.4. USMCA, Art. 23.5.
Footnotes 13 and 14 further clarify this section: 13: “For greater certainty, a failure is “in a manner affecting trade or investment between the Parties” if it involves: (i) a person or industry that produces a good or supplies a service traded between the Parties or has an investment in the territory of the Party that has failed to comply with this obligation; or (ii) a person or industry that produces a good or supplies a service that competes in the territory of a Party with a good or a service of another Party.14: For purposes of dispute settlement, a panel shall presume that a failure is in a manner affecting trade or investment between the Parties, unless the responding Party demonstrates otherwise.” USMCA, Art. 23.7.
USMCA, Art. 23.8.
USMCA, Art. 23.9. While sounding high-minded, the US. added footnote 15 which appears to greatly ameliorate or eliminate its obligations, “The United States’ existing federal agency policies regarding the hiring of federal workers are sufficient to fulfill the obligations set forth in this Article. The Article thus requires no additional action on the part of the United States, including any amendments to Title VII of the Civil Rights Act of 1964, in order for the United States to be in compliance with the obligations set forth in this Article.” Article 23.9 footnote 15. For insight into the origins of footnote 15, see, Chantal Da Silva,
USMCA, Art. 23.17. USMCA, Art. 31, 31.3, 31.16. For a description of the state-to-state dispute settlement system under the USMCA compared with NAFTA, see, J. Anthony VanDuzer, State-to-state Dispute Settlement under the USMCA: Better than NAFTA? (Feb. 27, 2020) (forthcoming) (available at: “The North American Free Trade Agreement (NAFTA) put the famous investor–state dispute settlement mechanism (ISDS) on the map. Now its rebirth as the United States–Mexico–Canada Agreement (USMCA) is taking it off again—at least between the United States and Canada.” Nathalie Bernasconi-Osterwalder, If a dispute regarding a matter arises under this Agreement and under another international trade agreement to which the disputing Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute. USMCA, Art. 31.1. The Investor-State Dispute Settlement (ISDS), Facility Specific Rapid Response Labor Mechanism, both of which are available only in disputes with Mexico; and the State-to-State disputes resolution mechanisms, are available to all parties. USMCA, Art. 31.4.1. USMCA, Art. 31.14. USMCA, Art. 31.6. USMCA, Art. 31.4–17.5. USMCA, Art. 31.19. In certain situations, the complaining party may suspend benefits in other sectors, unless negated by the USMCA. USMCA, Art. 31.19.2(a). In the case the Facility Specific Rapid Response Labor Mechanism with Mexico is used, there is a review by a three-person arbitration panel that should be issued within thirty days. The complaining party is empowered to impose remedies if the panel finds that there was a violation of worker's rights or free association. This rapid resolution mechanism allows the arbitrators to conduct an on-site investigation to verify whether workers’ rights have been violated, subject to the other party's consent. Therefore, under the ISDS, dispute resolution can be completed in a few months rather than years. USMCA, Art. 31-A.8.
In proving violations, the USMCA has added provisions,
USMCA, Art. 31.11.2(b). The applicable arbitration rules, whether they were the ICSID Rules, the ICSID or UNCITRAL Rules, will govern the rule of evidence. USMCA Art. 23.3 footnotes 4 and 5 provide further clarification: “4. A failure to comply with an obligation under paragraphs 1 or 2 must be in a manner affecting trade or investment between the Parties. For greater certainty, a failure is “in a manner affecting trade or investment between the Parties” if it involves: (i) a person or industry that produces a good or supplies a service traded between the Parties or has an investment in the territory of the Party that has failed to comply with this obligation; or (ii) a person or industry that produces a good or supplies a service that competes in the territory of a Party with a good or a service of another Party. 5. For purposes of dispute settlement, a panel shall presume that a failure is in a manner affecting trade or investment between the Parties, unless the responding Party demonstrates otherwise.” The USMCA did not include the competitive advantage required in earlier U.S. FTAs to prove the case. These and other USMCA improvements were called for in a comprehensive article by Professor Lance Compa. Eric Gottwald & Jeff Vogt,
The Parties also may decide to use alternative methods, such as “arbitration, mediation, online dispute resolution and other procedures for the prevention and resolution of international commercial disputes between private parties in the free trade area.
USMCA, Art. 31.22.1.
Another avenue of resolution, permits referrals to judicial or administrative forums:
If an issue of interpretation or application of this Agreement arises in a domestic judicial or administrative proceeding of a Party that a Party considers would merit its intervention, or if a court or administrative body solicits the views of a Party, that Party shall notify the other Parties and its Section of the Secretariat. The Commission shall endeavor to agree on an appropriate response as expeditiously as possible. 2. The Party in whose territory the court or administrative body is located shall submit an agreed interpretation of the Commission to the court or administrative body in accordance with the rules of that forum.
USMCA, Art. 31.20.
Comprehensive Economic and Trade Agreement Between Canada of the One Part, and the European Union and its Member States, of the Other Part, Art. 23.1–23.11, Can.-E.U., Oct. 30, 2016 [hereinafter CETA]
The Parties affirm their commitment to respect, promote and realize the principles and rights in accordance with the CETA, Art. 23.3.1.
Further, each Party shall ensure that its labor law and practices promote the ILO Decent Work Agenda, and in accordance with the ILO Declaration on Social Justice for a Fair Globalization of 2008,
CETA, Art. 23.3.2. “Article 23.3.3. Pursuant to subparagraph 2(a), each Party shall ensure that its labour law and practices embody and provide protection for working conditions that respect the health and safety of workers, including by formulating policies that promote basic principles aimed at preventing accidents and injuries that arise out of or in the course of work, and that are aimed at developing a preventative safety and health culture where the principle of prevention is accorded the highest priority. …” CETA, Art. 23.3.2. CETA also adopted ILO standards regarding migrants. CETA, Art. 23.3. And see, Ferdi De Ville, Jan Orbie & Lore Van den Putte,
The Parties have the CETA, Art. 23.2. CETA, Art. 23.4.
CETA, Art. 23.11.
For any labor dispute that arises under this Chapter, the Parties shall only have recourse to the rules and procedures provided in this Chapter on l CETA, Art. 23.11.2.
The Parties understand that the obligations included under this Chapter are binding and enforceable through the procedures for the resolution of disputes provided in Article 23.10. Within this context, the Parties shall discuss, through the meetings of the Committee on Trade and Sustainable Development, the effectiveness of the implementation of the Chapter, policy developments in each Party, developments in international agreements, and views presented by stakeholders, as well as possible reviews of the procedures for the resolution of disputes provided for in Article 23.10.
CETA, Art. 23.11.3. “In the case of disagreement under paragraph 3, a Party may request consultations according to the procedures established in Article 23.9 in order to review the provisions for the resolution of disputes provided for in Article 23.10, with a view to reaching a mutually agreed solution to the matter. Article 23.11.4. Further action may include, “The Committee on Trade and Sustainable Development may recommend to the CETA Joint Committee modifications to relevant provisions of this Chapter, in accordance with the amendment procedures established in Article 30.2 (Amendments). CETA, Art. 23.11.5. See discussion in, Anaëlle Idjeri, The ISDS mechanism provided for under the CETA is compatible with EU law, CETA: EU and Canada agree on new approach on investment in trade agreement,
This earlier briefing by TUC specifically targets what it identified as deficiencies in the US labor system.
U.S. union leader of the AFL-CIO, President Richard Trumka, joined with the British union leader of TUC, General Secretary Frances O’Grady, to announce to the White House and Downing Street that any UK-U.S. trade deal must put workers’ jobs and rights first. U.S. and UK unions demand fair trade and will vigorously oppose any deal that seeks to promote the narrow interests of multinational corporations over those of working people.
T
The TUC and AFL-CIO – union federations which together represent over 18 million workers – agree that the UK's first priority should be negotiating a good trade deal with the EU. Their statement outlines a series of needed requirements for any UK-U.S. deal, including:
Enforceable commitments to protect workers’ rights.
Exclusion of all kinds of special courts which allow foreign investors to sue governments for actions that threaten their profits, such as Investor-State Dispute Settlement (ISDS) or the Investment Court System (ICS).
Contain enforceable commitments to respect International Labor Organization core conventions on labor rights including the right to take industrial action, to join and form a trade union and the right to collective bargaining, with swift and certain enforcement mechanisms applied to business and governments when labor rights are abused;
Include a rapid-response labor enforcement mechanism that would provide for facility specific inspections and appropriate sanctions including denial of entry of goods and access to the government procurement market for businesses that violate the agreement's labor standards commitments.
Before undertaking negotiations on any trade deal involving the UK and US, and throughout any negotiations, our governments must engage with trade unions to ensure the objectives of any deal are to promote good jobs and protect high standards of employment, environment and safety.
As the UK exits from the EU, it also reaches out to other states to form new trade relations. As EU members cannot enter separate FTAs and must be under the umbrella of the EU, the UK will now be free to is move ahead with future individual FTA arrangements with numbers of countries.
Matthew Ward,
Japan and Singapore are included in the “rest of the world” as their EU trade deals had not come into force in 2018. Tom Edgington, 
After Brexit and since March 2020, the UK has made 19 trade deals to be effective following its transition from the EU on December 31, 2020. While it was an EU member, the UK was automatically part of around 40 trade deals the EU had struck with more than 70 countries. The UK has been trying to copy these arrangements. So far, 19 such deals, covering 50 countries or territories, have been rolled over. These deals represent just over 8% of total UK trade. [A number of] deals are expected to take effect at the end of the transition period, according to the Department for International Trade.
Kosovo (£8m of trade in 2018); Jordan (£448m in 2018); Morocco (£2.5bn in 2018); Georgia (£123m in 2018); Southern African nations (£10.2bn in 2018); Tunisia (£542m in 2018); Lebanon (£762m in 2018); South Korea (£14.8bn in 2018); Central America (£1.1bn in 2018); Andean countries (£3.4bn in 2018); Caribbean countries (£3.7bn in 2018); Pacific Islands (£163m in 2018); Liechtenstein (£146m in 2018); Israel (£4.2bn in 2018); Palestinian Authority (£41m in 2018); Switzerland (£32.4bn in 2018); The Faroe Islands (£252m in 2018); Eastern and Southern Africa (£2bn in 2018); Chile (£2bn in 2018). The government says it is still in negotiation with a further 16 countries, including Canada and Mexico. Tom Edgington,
The UK will need an agreement with the EU to stop new tariffs and other trade barriers coming into force after the transition period ends on 31 December 2020. If any trade deals are reached, either with the EU or other countries, they will not start until the transition period ends. The UK and the EU currently share the same rules in areas like workers’ rights, competition and environmental policy - they’re known as level playing field rules.
If negotiators fail to reach a deal, the UK faces the prospect of trading with the EU under the basic rules set by the World Trade Organization (WTO). If the UK had to trade under WTO rules, tariffs would be applied to most goods which UK businesses send to the EU. This would make UK goods more expensive and harder to sell in Europe. Having WTO terms would also mean full border checks for goods, which could cause traffic bottlenecks at ports. And the UK service industry would lose its guaranteed access. Qualifications would no longer be recognized, and it would be much harder for workers to travel to the EU.
Under the USMCA, the labor agenda earlier identified and summarized below, is followed by brief highlights of UK and U.S. relevant labor laws, allowing a comparison to help further identify potential trouble spots in the negotiations.
The US has ratified two of the ILO's core labor standards: No. 105 on the Abolition of Forced Labor and No. 182 on the Elimination of the Worst Forms of Child Labor. USMCA Art. 23.3.2. National Minimum Wage Act 1998, c. 39 (UK). Trade Union and Labour Relations (Consolidation) Act 1992, c. 52 (UK), §§ 62(5), 178(2). If still applicable the Human Rights Act's Schedule 1, Part 1, Article 11 asserts the United Kingdom's obligation not to restrict its citizens’ freedom of assembly and association. This freedom of association includes association with other people as well as the formation or membership with a trade union created in order to protect individual rights and interests. Human Rights Act 1998, c. 42, Art. 11(1), (UK). Trade Union and Labour Relations (Consolidation) Act 1992, c. 52, § 62, (UK). However, there are cumbersome procedural requirements before a strike can occur and questions whether a permanently replaced striker has the right to return to the job after the strike. Trade Union and Labour Relations (Consolidation) Act 1992, c.52 §180(1) (UK). Employment Rights Act 1996, c. 18 §94 (UK). “The Regulations apply: (a) when a business or undertaking, or part of one, is transferred to a new employer; or (b) when a ‘service provision change’ takes place (for example, where a contractor takes on a contract to provide a service for a client from another contractor). D National Minimum Wage Act 1998, c. 39 (UK). Provides the right to 28 days paid holidays, breaks from work, and attempts to limit excessively long working hours. Working Time Regulations 1998, No. 1833 (UK). Provides the right to leave for childcare, and the right to request flexible working patterns. Employment Rights Act 1996, c. 18 (UK). Provides the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act. Pensions Act 2008, c. 30 (UK). Modern Slavery Act 2015, c. 30 (UK). If applicable, the Human Rights Act Article 4 also prohibits “slavery or servitude” and “no one shall be required to perform forced or compulsory labour.” Human Rights Act 1998, c. 42, Art. 4(1)–(2) (UK). The Trade Union and Labour Relations Act authorizes collective bargaining. Trade Union and Labour Relations (Consolidation) Act 1992, c. 52, § 70B(1), (UK). National Labor Relations Act of 1935, 29 U.S.C.A. §§151–69 (Westlaw through Pub. L. No. 116–30). Equal Employment Opportunity Act of 1972, 29 C.F.R. §§ 1600–1899. Fair Labor Standards Act of 1938, 29 U.S.C.A §§ 201–19 (2016); Civil Rights Act of 1964, 42 U.S.C.A § 2000e (Westlaw through Pub. L. No. 116–45); Title VII, Civil Rights Act of 1991, 42 U.S.C.A. § 2000e (Westlaw through Pub. L. No. 102–66); Occupational Health and Safety Act of 1970, 29 U.S.C.A. §§ 651–78 (Westlaw through Pub. L. No. 116–45).
“There are also five specific health and safety laws that extend to violence at work: laws include the Health and Safety at Work Act 1974 (HASAWA);the Management of Health and Safety at Work Regulations 1999; the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013(RIDDOR); the Safety Representatives and Safety Committees Regulations 1977; and the Health and Safety (Consultation with Employees) Regulations 1996. Employers may also owe you duties under the Protection from Harassment Act 1997. The Act protects you against harassment and victimisation on grounds of sex, sexual orientation, trans-sexuality, marriage, civil partnership, pregnancy, maternity, race, nationality, disability, religion and belief, and age. In Northern Ireland, protection extends to harassment and victimisation on grounds of political opinion.” Trade Union and Labour Relations (Consolidation) Act 1992, c. 52 (UK). The right to strike is contained in Trade Union and Labour Relations (Consolidation) Act 1992, c. 52, § 62 (UK). Equality Act 2010, c. 15, § 27(1) (UK). Article 14 of the Human Rights Act also protects citizens from all forms of discrimination. Human Rights Act 1998, c. 42, Art. 14 (UK). National Labor Relations Act of 1935, 29 U.S.C.A. § 158 (Westlaw through Pub. L. No. 116–45); Fair Labor Standards Act of 1938, 29 U.S.C.A. § 215 (Westlaw through Pub. L. No. 116–45); Title VII, Civil Rights Act of 1991, 42 U.S.C.A. § 2000e (Westlaw through Pub. L. No. 102–66).
In June 2011, the UK was one of only nine EU states that did not vote in favor of the ILO's Domestic Workers Convention recognizing domestic workers’ rights to the same labor protections as other workers. For a report by UK's largest union, UNISON, with 1.3 million members representing staff who provide public services in the public and private sector on the alleged abuses of migrant domestic labor in UK, see, In the Sure-Tan, Inc. v. N.L.R.B, 476 U.S. 883 (1984), the NLRB held an employee under the law who was an illegal alien, though protected under the law, was not entitled to the usual remedy of reinstatement. Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U. S. 137, 142–52 (2002) (Federal immigration policy, as expressed by Congress in IRCA, foreclosed the Board from awarding backpay to an undocumented alien who has never been legally authorized to work in the United States for an employer's violation of the worker's rights under the NLRA). Although agricultural migrant workers have a series of labor protection laws, it is often argued to be inadequate.
Chandra Bhatnagar, Agricultural workers, including migrants who often make up a large percentage of that labor force, are excluded from federal legislation that provides basic protections like the right to a minimum wage, overtime pay, freedom of association, and health and safety guarantees while at work. Domestic service employees may or may not have the full protections of the labor laws, but are provided some protections, such as minimum wages, depending on a variety of federal and state laws.
See for example, 29 U.S.C. §206(f) (Westlaw through Pub. L. No. 116–130) (minimum wages except when not compliant with §209(a)(6) of the Social Security Act, or when that employee 1) is employed in multiple households during a given week and 2) is employed for more than eight hours total).
The USMCA provides for the Equality Act 2010, c. 15,§ 4,(UK). Equality Act 2010, c. 15, § 71, (UK). Equality Act 2010, c. 15, § 26, (UK). An additional form of prohibited discrimination is “victimization,” which is similar to “retaliation” under US law. Equality Act 2010, c. 15, § 27, (UK). Equality Act 2010, c. 15, § 4, (UK). UK laws have adopted protections provided under the European Human Rights Act against discrimination for LGBTQ+ status. Human Rights Act 1998, c. 42 (UK). The Statutory Mandatory Pay Act makes all working mothers eligible for up to fifty-two weeks of maternity leaves, with thirty-nine paid weeks, the first six of which are at the rate of 90% of the mother's full pay. Equality Act 2010, c. 15, § 74, (UK). Statutory Paternity Pay and Leave: employer guide, Gov.UK, Analyzing the most recent Census Bureau data from 2018, women of all races earned, on average, just 82 cents for every $1 earned by men of all races. A further breakdown shows the gender wage gap is more significant among women of color: White 79%; Black 62%; Hispanic or Latino 54%; Asian 90%; and American Indian or Alaska Native 57%. Robin Bleiweis, Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). The U.S. is the only OECD country without a national statutory paid maternity, paternity or parental leave. The Family and Medical Leave Act (FMLA) enables some employees to take up to 12 weeks unpaid maternity leave but only 60% of workers are eligible. Miranda Bryant, Bostock v. Clayton Cty., Georgia, No. 17–1618, 2020 WL 3146686 (U.S. June 15, 2020). Nina Totenberg,
By statute, the EEOC does not have enforcement powers and therefore does not receive the same judicial deference. “Under Title VII of the Civil Rights Act, EEOC's authority to issue legislative regulations is limited to procedural, record keeping, and reporting matters. Regulations issued by EEOC without explicit authority from Congress, called “interpretive regulations,” do not create any new legal rights or obligations, and are followed by courts only to the extent they find EEOC's positions to be persuasive.”
The most contentious labor issues or the ones with political risks of domestic law not meeting the obligations of the negotiated FTA are emerging as follows. Keep in mind also that to claim violations of obligations under the language of the USMCA, the violation must be shown to be “in a manner affecting trade or investment.” So, one can ask: “what evidence demonstrates a claim and what evidence overcomes the presumption under the FTA that it did not affect trade or investment?”
The ILO does not expressly mention the right to strike but the Freedom of Association Committee through ongoing rulings established principles on the right to strike as an essential element of the freedom of association protected by Convention No. 87.
For full discussion, see, Jeffrey Vogt, Janice Bellace, Lance Compa, K. D. Ewing, John Hendy QC, Klaus Lörcher, Tonia Novitz, The Right to Strike in International Law, The ILO has concluded striker replacement, while not in contravention of ILO agreements, carries with it significant risks for abuse and places trade union freedoms “entails a risk of derogation from the right to strike.”
The EU Charter of Fundamental Rights establishes a right to strike, and the right to associate, in the European Convention on Human Rights, but leaves it to national legislation how it will be administered; therefore, UK law and an applicable FTA are determinative.
Workers and employers, or their respective organizations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action. “The textual note points out “[T]his Article is based on Article 6 of the European Social Charter and on the Community Charter of the Fundamental Social Rights of Workers (points 12 to 14). The right of collective action was recognized by the European Court of Human Rights as one of the elements of trade union rights laid down by Article 11 of the ECHR. … The modalities and
In the UK, workers and employers, or their respective organizations, have, in accordance with the Trade Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action. However, this right is limited.
There is no explicit legal right to strike in the UK, but there is limited protection for individuals from unfair dismissal.
Trade Union and Labour Relations (Consolidation) Act 1992, c. 52, § 238A (UK). The UK Court of Appeals in the Metrobus case in 2009 held delay in informing an employer of the outcome of a ballot for strike action will cause the subsequent strike action to be unlawful, and consequently not protected under the Trade Union and Labor Relations (Consolidation) Act 1992. Metrobus Ltd v Unite the Union [2009] EWCA Civ 829 CA (UK). It is an unfair dismissal to terminate an employee who has taken part in any lawful industrial action within 12 weeks of the action. “The right of an employer to dismiss those taking part in lawful action is restricted. In the case of unofficial action, the employer can dismiss and later pick and choose who it re-employs – with no protection from victimization for those it chooses not to reemploy.”
UK's Trade Union Act
Trade Union Act 2016, c. 15,§§ 5–9, (UK).
There is protection to strike when: “the dismissal is within 12 weeks of the action starting; it is after 12 weeks but the employee ceased the action within the 12-week period; the employer failed to take reasonable procedural steps to resolve the dispute. It is important to note that an employer can legally dismiss all those who take part in unlawful action.”
Unison Industrial Action Handbook, U
Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) precludes the provision of temporary workers to perform the duties normally performed by a worker who is taking part in a strike or other industrial action.
The Regulation reads: Restriction on providing work-seekers in industrial disputes 7.—(1) Subject to paragraph (2) an employment business shall not introduce or supply a work-seeker to a hirer to perform—(a) the duties normally performed by a worker who is taking part in a strike or other industrial action (“the first worker”), or (b)the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform the duties normally performed by the first worker, unless in either case the employment business does not know, and has no reasonable grounds for knowing, that the first worker is taking part in a strike or other industrial action. (2) Paragraph (1) shall not apply if, in relation to the first worker, the strike or other industrial action in question is an unofficial strike or other unofficial industrial action for the purposes of section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992(1). The Conduct of Employment Agencies and Employment Businesses Regulations 2003, No. 3319 (UK), Reg. 7; also,
The U.S. grants the right to strike and at the same time allows the employer to hire striker replacements; and, for economic strikers, but not unfair labor practice strikers,
It is argued that in practice, the distinction between an unfair labor practice strike and an economic strike fails to protect workers’ right to strike. As the ILO Committee on Freedom of Association noted, “that distinction obfuscates the real issue because workers and employers only find out years after the strike took place, and by then, even with a decision in favor of the workers, the strike is often long broken, and workers scattered to other jobs.” N.L.R.B. v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938), The US Supreme Court held workers who strike remain employees for the purposes of the National Labor Relations. The Court granted the relief sought by the Board, to reinstate the workers. However, the decision in dictum said an employer may hire strikebreakers and is not bound to discharge any of them if or when the strike ends. This applies to economic but not unfair labor practice strikes where workers have the right to immediate reinstatement. “An employer can replace employees who engage in economic strikes and are not required to reinstate strikers after they apply unconditionally to go back to work. If, however, the strikers do not obtain regular and substantially equivalent employment after the strike, they are entitled to be recalled to their jobs when openings occur. Employees who strike in order to protest an unlawful practice of the employer, such as disciplining employees for engaging in union activity, have greater rights to reinstatement. They are entitled to immediate reinstatement even if replacement employees have to be discharged.”
The permanent-replacement doctrine is not used only against workers’ exercise of the right to strike. Employers aggressively use the threat of permanent replacement in campaigns against workers’ efforts to form and join a union and to bargain collectively. In every organizing drive examined by Human Rights Watch for this report, management raised the prospect of permanent replacement in written materials, in captive-audience meetings, and in one-on-one meetings where supervisors spoke with workers under their authority.
The United States is almost alone in the world in allowing permanent replacement of workers who exercise the right to strike. Some of the United States’ key trading partners take a polar opposite approach. In Mexico, for example, federal law requires companies to cease operations during a legal strike.
Lance A. Compa,
The USMCA prohibits employment discrimination on the basis of sex (including with regard to sexual harassment), pregnancy, sexual orientation, gender identity, and caregiving responsibilities; provide job protected leave for birth or adoption of a child and care of family members; and protect against wage discrimination.
USMCA, Art. 23.9.
Could violations of these provisions provide an advantage to the employers and the country that utilizes this work, made cheaper by discriminating and avoiding having to pay higher wages and benefits costs?
Analyzing the most recent Census Bureau data from 2018, women of all races earned, on average, just 82 cents for every $1 earned by men of all races.3 This calculation is the ratio of median annual earnings for women working full time, year round to those of their male counterparts, and it translates to a gender wage gap of 18 cents. When talking about the wage gap for women, it is important to highlight that there are significant differences by race and ethnicity. The wage gap is larger for most women of color. Robin Bleiweis,
Laws on gender rights and benefits in the UK are comprehensive and of a higher standard than the U.S., bolstered in part by EU standards and the government enforcement mechanisms are regularly used;
The gender pay gap among full-time employees stands at 8.9%, little changed from 2018, and a decline of only 0.6 percentage points since 2012. Many settlements happen long before cases reach court. Bloomberg has analyzed the court database's sex discrimination cases. There are 3,585 judicial cases, of which 2,195 were apparently settled or withdrawn. The gender pay gap among all employees fell from 17.8% in 2018 to 17.3% in 2019 and continues to decline. For age groups under 40 years, the gender pay gap for full-time employees is now close to zero. Among 40- to 49-year-olds the gap (currently 11.4%) has decreased substantially over time. Among 50- to 59-year-olds and those over 60 years, the gender pay gap is over 15% and is not declining strongly over time. One of the reasons for differences in the gender pay gap between age groups is that women over 40 years are more likely to work in lower-paid occupations and, compared with younger women, are less likely to work as managers, directors or senior officials.
Therefore, from the U.S. perspective an argument could be made that if the UK's post-Brexit arrangement with EU does not maintain the EU standards, the UK could allow its gender laws to weaken, providing a less expensive market for U.S. investors. Whether that could manifest itself into violations of an FTA “in a manner affecting trade or investment” is certainly speculative at this point as arguably the US already provides fewer gender-based benefits than the UK.
The answer for the U.S. was provided by footnote 15 of Article 23.9 of the USMC.
The United States’ existing federal agency policies regarding the hiring of federal workers are sufficient to fulfill the obligations set forth in this Article. The Article thus requires no additional action on the part of the United States, including any amendments to Title VII of the Civil Rights Act of 1964, in order for the United States to be in compliance with the obligations set forth in this Article.
USMCA, Art. 23.9 at note 5.
So, it would seem if the U.S. were able to use this approach of a footnote agreement to there being no violations, it would not be a trouble spot for the U.S.
In Article 23.8 of the USMCA, migrant workers are recognized as vulnerable and each Party shall ensure that migrant workers are protected under its labor laws, whether they are nationals or non-nationals.
The UK policies on migrant labor is now in a bit of a flux, and it has recently proposed policies that would limit foreign workers who often are the ones doing the dirty, dangerous jobs that British citizens do not want to do. In February 2020, Britain announced it is considering a policy to close its borders to unskilled workers and those who can’t speak English as part of a fundamental overhaul of immigration laws that will end the era of cheap EU labor in factories, warehouses, hotels and restaurants.
Low-skilled factory and construction 21%; Factory and machine operators 17%; Food preparation and other skilled trades 13%; Low-skilled administration and service 12%; Drivers and mobile machine operators 11%; Skilled construction and building trades 9%; STEM professionals 9%; Leisure, travel and related personal service 8%; STEM associate professionals 7%; Culture, media and sports 7%.
While UK laws may provide basic rights and benefits for these workers, the absence of these workers certainly would be a factor affecting labor costs and possibly impact trade and investment. It appears this policy, if implemented, it would not drive UK toward cheap labor, but just the opposite, making the migrant issue a possible plus for US traders who can supply the more UK products which have become more expensive. Thus, if the UK policy stays after it is finally separated from EU, the migrant issue likely would not be a trouble spot in the negotiations.
Generally, in the U.S., migrant workers fall into two main categories: domestic and foreign. Domestic workers are legal immigrants who have moved to the U.S. to work and who either are in the process of obtaining citizenship, or who have citizenship.
Mary Jo Dudley,
The Conversation, CC-BY-ND Source: USDA, Pew Research Center
Advocates of migrant workers’ rights point out they can be easily exploited and provide the country with a cheap labor supply, especially for the dirty, dangerous jobs that American citizens do not want, that can greatly reduce the cost of labor for employers.
Daniel Costa,
Our current immigration system isn’t working for workers. Instead, it benefits low-road employers who exploit the immigration status of unauthorized immigrants and authorized guest workers through a legal framework that puts downward pressure on wages and leaves migrant workers powerless to enforce their labor rights and hold employers accountable. This hurts both migrants and the U.S. workers—citizens and lawful permanent residents—who work alongside them.
Could it be demonstrated that violations of USMCA-style labor obligations relating to migrant labor are occurring and are in a manner affecting trade or investment?
U.S. total exports of agricultural products to the United Kingdom totaled $2.0 billion in 2018. Leading domestic export categories include wine & beer ($261 million), tree nuts ($197 million), prepared food ($168 million), soybeans ($109 million), and live animals ($90 million).
So, again, one can ask: “what evidence demonstrates a claim and what evidence overcomes the presumption under the Treaty that it did not affect trade or investment?”
And in this case, one could ask who will lodge the complaint?
The EU approach to dispute resolution mechanisms in FTAs, to which the UK has been a party, is to provide an exclusive section for trade and a different one for labor. The labor settlement process is a series of consultations and negotiations, but no penalties or real remedies at the end of the process. This contrasts with the U.S. approach of a unified dispute resolution process including both labor and trade issues with a possible penalty in the end versus the EU approach of having a separate path for each with labor issues not having an enforceable remedy for a violation.
CETA, supra note 56.
The USMCA presumes that labor violations affect trade and investment, shifting the burden of proof to the party alleged to have violated USMCA labor provisions to prove otherwise. The State to State dispute settlement provisions of Chapter 31 of the USMCA apply “when a Party considers that an actual or proposed measure of another Party is or would be inconsistent with an obligation of this Agreement or that another Party has otherwise failed to carry out an obligation of this Agreement;”
USMCA, Art. 31.2(b). USMCA, Art. 31.6, 31.18.2, 31.19.1. The U.S. approach of combining labor and trade issues for dispute settlement paths contrasts with the EU approach of having a separate path for each.
The USMCA is instructive in its “determinative footnotes” that lay out the path for finding violations of the Labor Article. The summary conclusion from the multiple explanatory footnotes in Article 23 is that a violation occurs if it is “in a manner affecting trade or investment between the Parties” and “a panel shall presume that a failure is in a manner affecting trade or investment between the Parties, unless the responding Party demonstrates otherwise.”
More specifically, the footnotes of the Labor Article provides the “obligations set out in this Article: i. as they relate to the ILO, refer only to the ILO Declaration on Rights at Work;
USMCA, Art. 23.3 at note 3. And therefore, not to the more specifically worded obligations of the Conventions. It reads: “A failure to comply with an obligation under paragraphs 1 or 2 must be in a manner affecting trade or investment between the Parties. For greater certainty, a failure is “in a manner affecting trade or investment between the Parties” if it involves: (i) a person or industry that produces a good or supplies a service traded between the Parties or has an investment in the territory of the Party that has failed to comply with this obligation; or (ii) a person or industry that produces a good or supplies a service that competes in the territory of a Party with a good or a service of another Party.” USMCA, Art. 23.3 at note 4, 23.4 at note 8, 23.5 at note 11, 23.7 at note 13. It reads: “For greater certainty, a “sustained or recurring course of action or inaction” is “sustained” if the course of action or inaction is consistent or ongoing, and is “recurring” if the course of action or inaction occurs periodically or repeatedly and when the occurrences are related or the same in nature. A course of action or inaction does not include an isolated instance or case.” USMCA, Art. 23.5 at note 10. It reads: For purposes of dispute settlement, a panel shall presume that a failure is in a manner affecting trade or investment between the Parties, unless the responding Party demonstrates otherwise. USMCA, Art. 23.3 at note 5, 23.4 at note 9, 23.5 at note 12, 23.7 at note 14.
One can predict these footnotes will be used in a future US-UK FTA.
The impact of the Pandemic on the global economy and the ability of governments and businesses to trade and invest is still unknown as of this date. How this may affect US-UK negotiations for a FTA is uncertain.
“A free-trade agreement could still be agreed but it would be hard to implement. Even if we were coming to the end of this pandemic by then, businesses will not be prepared.” Lisa O’Carroll, David Lawder & Andrea Shala, Ed Balls, Nyasha Weinberg, Jessica Redmond & Simon Borumand,
Following Brexit, the European Parliamentary Briefing in 2020, summarized the future EU-UK trade relationship as follows.
The withdrawal of the United Kingdom (UK) from the European Union (EU) came into effect on 1 February 2020, [and the] transition period began on the same day and is due to run until the end of 2020. During this period, although no longer part of the EU institutions, the UK remains in the customs union and single market, and within the jurisdiction of the Court of Justice of the EU (with some exceptions). Negotiations during the transition period are aimed at reaching agreements that will shape the future EU-UK relationship in a range of domains, and especially that of trade.
In the Political Declaration accompanying the Withdrawal Agreement, the EU and the UK ‘agree to develop an ambitious, wide-ranging and balanced economic partnership’. However, some major obstacles have surfaced. The UK insists that it is unwilling to submit to EU Court of Justice jurisdiction, and demands autonomy in its regulatory and trade policies. The UK indicates that it seeks a free trade agreement similar to that agreed between the EU and Canada: comprehensive, but very different to the previous relationship. The EU has taken note of the UK objectives, but emphasizes that the deeper the trade agreement, the more UK regulations and standards must align with those of the EU. To the EU, alignment is essential to preserve a level playing field, on the grounds that the EU and UK are close neighboring economies and strongly interconnected. The European Commission's 3 February 2020 recommendation for a Council decision authorizing the opening of negotiations on the future relationship confirms this approach.
In this context, time is critical. The Withdrawal Agreement allows for an extension to the transition period, but the UK Withdrawal Act explicitly prohibits extension. In addition, to allow for ratification, the trade agreement should be ready well ahead of the end of the transition period…. Time constrained negotiation may give rise to a limited economic and trade agreement that covers only priority areas, rather than the ambitious single comprehensive agreement sought under the Political Declaration and Commission recommendation.
Issam Hallak,
The important question for the U.S.-UK negotiations will be how much, if any, will the UK still be bound by any residual obligations from laws and institutions of EU, especially regarding EU labor standards which are higher than that of UK and U.S. laws. Again, the answer is uncertain at this time.
The reality of U.S. politics is that a Democratically controlled House of Representatives, in its involvement with the text of the FTA, would be very reluctant to give Republican President Trump a ‘win” of a new FTA with the UK. It therefore would be reluctant to finalize the text in the treaty before the issue of Senate consent arose, and before the November Presidential election.
Further, some trade experts hypothesize that while both Johnson and Trump had advertised the trade deal as a top priority, the Johnson administration will likely focus on the domestic economy for the foreseeable future. This and the U.S. politics may force President Trump to focus more on the domestic economy and getting past the economic impacts of the Pandemic.
Josh Zumbrun,
In the ongoing negotiations ahead, with all the attendant uncertainties, many think it prudent to wait for the UK-EU separation and possible UK-EU FTA to be completed. In December, 2019, it was reported that the “U.S. and UK have announced a desire to pursue a free trade agreement as soon as the U.K. completes its exit from the EU.”
Shayerah Ilias Akhtar and Rachel F. Fefer, Brexit and Outlook for a U.S.-UK Free Trade Agreement (July 8, 2020),
The issue to consider is to whose advantage, if anyone's, is it to complete the U.S.-UK FTA first before knowing the extent of any residual obligations of EU laws and institutions that the UK may retain in its UK-EU trade relationship? This definitely is a debatable point.
The background in this paper provides a primer for understanding and identifying the variables of some of the more pressing points on labor and employment issues facing the negotiators in the future U.S.-UK FTA. It also can provide for some reflection on the future contents of labor and dispute settlement provisions in a future U.S.-EU FTA (TTIP). As stated earlier, although the future cannot be predicted, it can be prepared for.
Nancy Pelosi, the speaker of the House, said that if the UK violates its international agreements [re Northern Ireland], “there will be absolutely no chance of a U.S.-UK trade agreement passing the Congress.” UK's post-Brexit plan puts trade deal with the EU — and the U.S. — at risk (Sept. 10, 2020), Sylvia Amaro,