As for labour, chapter 23, which addresses that topic, seems to us to be quite incomplete. Once again, we think there are some interesting good intentions with respect to forced labour, violence against workers, migrant workers, and discrimination in the workplace. However, implementing these measures seems very problematic to us.
Two days ago, Minister Freeland again stated that the new agreement, CUSMA, includes ambitious and enforceable labour obligations to protect workers from discrimination in the workplace, including gender-based discrimination. However, the first texts released on October 1, 2018 stated that each party is supposed to implement policies that protect workers from employment discrimination based on gender.
A few months later, the final text instead stated that each party shall implement policies that it considers appropriate to protect workers. The reference to “policies that protect workers” was changed to “policies that it considers appropriate to protect workers against employment discrimination on the basis of sex.” This protection is now left to the good judgment of each party. The worst part is that Canada has agreed to allow the United States to shield its federal agencies' existing policies from this article, even if watered down.
In addition, it is mentioned that cases of violence against workers must have an effect on trade or investment between the parties, which we find difficult to demonstrate and far too restrictive, just like the entire chapter.
CUSMA also fails to solve the problem of competition between workers, nor does it put forward concrete measures to improve their working conditions. Only the auto sector is subject to a target of a production wage rate of at least $16 U.S. per hour, which is an arbitrary choice and clearly insufficient overall.
Finally, we come to the brand new chapter 28 of the new agreement on good regulatory practices, a chapter that was completely absent from NAFTA and that Minister Freeland did not even mention last Tuesday. While the victory of NAFTA chapter 11 being removed was noted earlier, we must curb our enthusiasm in light of chapter 28. First of all, the title of the chapter is misleading, since the practices it highlights are not what they seem.
According to the CUSMA rules, the parties must make public each year a list of the regulations they plan to implement in the following year, in addition to being required to justify the need for new regulations and to make public all scientific studies and data consulted. That is not all. If the parties decide to conduct an impact assessment of the new regulations, which is strongly recommended, it should include an explanation of the need for the new regulation and the problem it is intended to address, a list of all other regulatory or non-regulatory alternatives that could be used to try to address the problem, a cost-benefit analysis of each of those different scenarios, and the reasons why the proposed solution is preferable.
It gets worse. Article 28.13 requires each party to adopt or maintain “procedures or mechanisms to conduct retrospective reviews of its regulations in order to determine whether modification or repeal is appropriate”. Article 28.14 requires the parties to provide the opportunity for any interested person to submit “to any regulatory authority of the Party written suggestions for the issuance, modification, or repeal of a regulation.” As a result, the doors are wide open for corporate lobbyists to attempt to directly influence those responsible for enforcing the regulations.
Deregulation is therefore the focus of the chapter on good regulatory practices, rather than regulation that could help to better protect the environment or the people.
Attempting to improve regulations or create new regulations will become so complicated that the only change left will be deregulation. There will be no need to be able to sue governments in this context, since discouraging governments from acting at the grassroots level is likely to prove just as effective, if not more so. We are really surprised that a Liberal government would support this type of provision, which makes any government action suspect in advance.
Thank you for listening.