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Agreement on Labour Cooperation between the Government of Canada and the Government of the Republic of Chile [1997] CATSer 25 (5 July 1997)

E101547 - CTS 1997 No. 52

AGREEMENT ON LABOUR COOPERATION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF CHILE

PREAMBLE

The Government of Canada and the Government of the Republic of Chile (Chile):

RECALLING their resolve in the Canada-Chile Free Trade Agreement (CCFTA) to:

- create an expanded and secure market for the goods and services produced in their territories,

- enhance the competitiveness of their firms in global markets,

- create new employment opportunities and improve working conditions and living standards in their respective territories, and

- protect, enhance and enforce basic workers' rights;

AFFIRMING their continuing respect for each others Constitution and law;

DESIRING to build on their respective international commitments and to strengthen their cooperation on labour matters;

RECOGNIZING that their prosperity depends on the promotion of competition based on innovation and rising levels of productivity and quality;

SEEKING to complement the economic opportunities created by the CCFTA with the human resource development, labour-management cooperation and continuous learning that characterize high-productivity economies;

ACKNOWLEDGING that protecting basic workers' rights will encourage firms to adopt high-productivity competitive strategies;

RESOLVED to promote, in accordance with their respective laws, high-skill, high-productivity economic development in their countries by:

- investing in continuous human resource development, including for entry into the workforce and during periods of unemployment;

- promoting employment security and career opportunities for all workers through employment services;

- strengthening labour-management cooperation to promote greater dialogue between worker organizations and employers and to foster creativity and productivity in the workplace;

- promoting higher living standards as productivity increases;

- encouraging consultation and dialogue between labour, business and government;

- fostering investment with due regard for the importance of labour laws and principles;

- encouraging employers and employees in each country to comply with labour laws and to work together in maintaining a progressive, fair, safe and healthy working environment;

BUILDING on existing institutions and mechanisms in Canada and Chile to achieve the preceding economic and social goals;

CONVINCED of the benefits to be gained from further cooperation between them on labour matters; and

DESIRING to facilitate the accession of Chile to the North American Agreement on Labor Cooperation;

HAVE AGREED as follows:

PART ONE

OBJECTIVES

ARTICLE 1

Objectives

The objectives of this Agreement are to:

(a) improve working conditions and living standards in each Party's territory;

(b) promote, to the maximum extent possible, the labour principles set out in Annex 1;

(c) encourage cooperation to promote innovation and rising levels of productivity and quality;

(d) encourage publication and exchange of information, data development and coordination, and joint studies to enhance mutually beneficial understanding of the laws and institutions governing labour in each Party's territory;

(e) pursue cooperative labour-related activities on the basis of mutual benefit;

(f) promote compliance with, and effective enforcement by each Party of, its labour law; and

(g) foster transparency in the administration of labour law.

PART TWO

OBLIGATIONS

ARTICLE 2

General Commitments

Affirming full respect for each Party's Constitution, and recognizing the right of each Party to establish its own domestic labour standards, and to adopt or modify accordingly its labour laws and regulations, each Party shall ensure that its labour laws and regulations provide for high labour standards, consistent with high quality and productivity workplaces, and shall continue to strive to improve those standards in that light.

ARTICLE 3

Government Enforcement Action

1. Each Party shall promote compliance with and effectively enforce its labour law through appropriate government action, subject to Article 39, such as:

(a) appointing and training inspectors;

(b) monitoring compliance and investigating suspected violations, including through on-site inspections;

(c) seeking assurances of voluntary compliance;

(d) requiring record keeping and reporting;

(e) encouraging the establishment of worker-management committees to address labour regulation of the workplace;

(f) providing or encouraging mediation, conciliation and arbitration services; or

(g) initiating, in a timely manner, proceedings to seek appropriate sanctions or remedies for violations of its labour law.

2. Each Party shall ensure that its competent authorities give due consideration in accordance with its law to any request by an employer, employee or their representatives, or other interested person, for an investigation of an alleged violation of the Party's labour law.

ARTICLE 4

Private Action

1. Each Party shall ensure that persons with a legally recognized interest under its law in a particular matter have appropriate access to administrative, quasi-judicial, judicial or labour tribunals for the enforcement of the Party's labour law.

2. Each Party's law shall ensure that such persons may have recourse to, as appropriate, procedures by which rights arising under:

(a) its labour law, including in respect of occupational safety and health, employment standards, industrial relations and migrant workers, and

(b) collective agreements,

can be enforced.

ARTICLE 5

Procedural Guarantees

1. Each Party shall ensure that its administrative, quasi-judicial, judicial and labour tribunal proceedings for the enforcement of its labour law are fair, equitable and transparent and, to this end, each Party shall provide that:

(a) such proceedings comply with due process of law;

(b) any hearings in such proceedings are open to the public, except where the administration of justice otherwise requires;

(c) the parties to such proceedings are entitled to support or defend their respective positions and to present information or evidence; and

(d) such proceedings are not unnecessarily complicated and do not entail unreasonable charges or time limits or unwarranted delays.

2. Each Party shall provide that final decisions on the merits of the case in such proceedings are:

(a) in writing and preferably state the reasons on which the decisions are based;

(b) made available without undue delay to the parties to the proceedings and, consistent with its law, to the public; and

(c) based on information or evidence in respect of which the parties were offered the opportunity to be heard.

3. Each Party shall provide, as appropriate, that parties to such proceedings have the right, in accordance with its law, to seek review and, where warranted, correction of final decisions issued in such proceedings.

4. Each Party shall ensure that tribunals that conduct or review such proceedings are impartial and independent and do not have any substantial interest in the outcome of the matter.

5. Each Party shall provide that the parties to administrative, quasi-judicial, judicial or labour tribunal proceedings may seek remedies to ensure the enforcement of their labour rights. Such remedies may include, as appropriate, orders, compliance agreements, fines, penalties, imprisonment, injunctions or emergency workplace closures.

6. Each Party may, as appropriate, adopt or maintain labour defence offices to represent or advise workers or their organizations.

7. Nothing in this Article shall be construed to require a Party to establish, or to prevent a Party from establishing, a judicial system for the enforcement of its labour law distinct from its system for the enforcement of laws in general.

8. For greater certainty, decisions by each Party's administrative, quasi-judicial, judicial or labour tribunals, or pending decisions, as well as related proceedings shall not be subject to revision or reopened under the provisions of this Agreement.

ARTICLE 6

Publication

1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them.

2. When so established by its law, each Party shall:

(a) publish in advance any such measure that it proposes to adopt; and

(b) provide interested persons a reasonable opportunity to comment on such proposed measures.

ARTICLE 7

Public Information and Awareness

Each Party shall promote public awareness of its labour law, including by:

(a) ensuring that public information is available related to its labour law and enforcement and compliance procedures; and

(b) promoting public education regarding its labour law.

PART THREE

INSTITUTIONAL MECHANISMS

ARTICLE 8

The Canada-Chile Commission for Labour Cooperation

1. The Parties hereby establish the Canada-Chile Commission for Labour Cooperation.

2. The Commission shall comprise a ministerial Council and shall be assisted by the National Secretariat of each Party.

SECTION A : The Council

ARTICLE 9

Council Structure and Procedures

1. The Council shall comprise labour ministers of the Parties or their designees.

2. The Council shall establish its rules and procedures.

3. The Council shall convene:

(a) at least once a year in regular session, and

(b) in special session at the request of either Party.

Regular sessions shall be chaired alternately by each Party.

4. The Council may hold public sessions to report on appropriate matters.

5. The Council may:

(a) establish, and assign responsibilities to, committees, working groups or expert groups; and

(b) seek the advice of independent experts.

6. All decisions and recommendations of the Council shall be taken by mutual agreement, except as the Council may otherwise decide or as otherwise provided in this Agreement.

ARTICLE 10

Council Functions

1. The Council shall:

(a) oversee the implementation and develop recommendations on the further elaboration of this Agreement and, to this end, the Council shall, within three years after the date of entry into force of this Agreement, review its operation and effectiveness in the light of experience;

(b) direct the work and activities of any committees or working groups convened by the Council;

(c) establish priorities for cooperative action and, as appropriate, develop technical assistance programs on the matters set out in Article 11;

(d) approve the annual plan of activities of the Commission;

(e) approve for publication, subject to such terms or conditions as it may impose, reports and studies prepared by independent experts or working groups;

(f) approve any reports or studies prepared jointly by the National Secretariats at the request of the Council;

(g) facilitate consultations through the exchange of information;

(h) address questions and differences that may arise regarding the interpretation or application of this Agreement; and

(i) promote the collection and publication of comparable data on enforcement, labour standards and labour market indicators.

2. The Council may periodically request the National Secretariats to undertake projects and activities, as appropriate.

3. The Council may consider any other matter within the scope of this Agreement and take such other action in the exercise of its functions as the Parties may agree.

ARTICLE 11

Cooperative Activities

1. The Council shall promote cooperative activities between the Parties, as appropriate, regarding:

(a) occupational safety and health;

(b) child labour;

(c) migrant workers of the Parties;

(d) human resource development;

(e) labour statistics;

(f) work benefits;

(g) social programs for workers and their families;

(h) programs, methodologies and experiences regarding productivity improvement;

(i) labour-management relations and collective bargaining procedures;

(j) employment standards and their implementation;

(k) compensation for work-related injury or illness;

(1) legislation relating to the formation and operation of unions, collective bargaining and the resolution of labour disputes, and its implementation;

(m) the equality of women and men in the workplace;

(n) forms of cooperation among workers, management and government;

(o) the provision of technical assistance for the development of their labour standards; and

(p) such other matters as the Parties may agree.

2. In carrying out the activities referred to in paragraph 1, the Parties may, commensurate with the availability of resources in each Party, cooperate through:

(a) seminars, training sessions, working groups and conferences;

(b) joint research projects, including sectoral studies;

(c) technical assistance; and

(d) such other means as the Parties may agree.

3. The Parties shall carry out the cooperative activities referred to in paragraph 1 with due regard for the economic, social, cultural and legislative differences between them. They shall jointly select, implement and fund all projects falling within the category of cooperative activities referred to in paragraph 1.

ARTICLE 12

Reports and Studies

1. The Council may periodically engage independent experts of recognized experience to prepare background reports setting out publicly available information supplied by each Party on:

(a) labour law and administrative procedures;

(b) trends and administrative strategies related to the implementation and enforcement of labour law;

(c) labour market conditions such as employment rates, average wages and labour productivity; and

(d) human resource development issues such as training and adjustment programs.

2. The Council may periodically engage independent experts of recognized experience to prepare studies on any other matter. Any such study shall be prepared in accordance with terms of reference established by the Council.

3. The Council may periodically request that the National Secretariats prepare joint reports referred to in paragraph 1 or studies referred to in paragraph 2. In making such a request, the Council shall take into account the availability of resources and expertise in the National Secretariats. In responding to such a request, either National Secretariat may engage independent experts in the preparation of such reports or studies.

4. The independent experts engaged pursuant to paragraph 1 or 2 shall submit a draft of any report or study to the Council. The National Secretariats shall submit to the Council a draft of any report or study referred to in paragraph 3. If the Council considers that a report or study is materially inaccurate or otherwise deficient, the Council may remand it to the independent experts or the National Secretariats for reconsideration or other disposition.

5. Such reports and studies shall be made public 45 days after their approval by the Council, unless the Council otherwise decides.

6. When the Council requests the preparation of background reports or studies, it shall also decide on the funding involved in the preparation and publication of such reports or studies, as appropriate.

SECTION B: The National Secretariats

ARTICLE 13

National Secretariat

1. Each Party shall establish a National Secretariat at the national government level and notify the other Party of its location.

2. Each Party shall designate an Executive Secretary for its National Secretariat, who shall be responsible for its administration and management.

3. Each Party shall be responsible for the operation and costs of its National Secretariat.

ARTICLE 14

National Secretariat Functions

1. Each National Secretariat shall serve as a point of contact with:

(a) governmental agencies of the Party in whose territory the National Secretariat is located; and

(b) the National Secretariat of the other Party.

2. Each National Secretariat shall promptly provide publicly available information requested by:

(a) independent experts preparing reports and studies pursuant to a request by the Council under Article 12;

(b) the National Secretariat of the other Party; and

(c) an Evaluation Committee of Experts.

3. Each National Secretariat shall provide for the submission and receipt, and periodically publish a list, of public communications on labour law matters arising in the territory of the other Party. Each National Secretariat shall review such matters, as appropriate, in accordance with domestic procedures.

4. The National Secretariats shall submit joint annual reports to the Council on their activities.

5. Pursuant to a request by the Council, the National Secretariats shall periodically publish a joint list of matters resolved under Part Four or referred to Evaluation Committees of Experts.

SECTION C: National Committees

ARTICLE 15

National Advisory Committees

Each Party may convene a national advisory committee, comprising members of its public, including representatives of its labour and business organizations and other persons, to advise it on the implementation and further elaboration of this Agreement.

ARTICLE 16

Governmental Committees

Each Party may convene a governmental committee, which may comprise or include representatives of national and provincial governments, to advise it on the implementation and further elaboration of this Agreement.

SECTION D: Official Languages

ARTICLE 17

Official Languages

The official languages of the Council shall be English, French and Spanish. The Council shall establish rules and procedures regarding interpretation and translation.

PART FOUR

COOPERATIVE CONSULTATIONS AND EVALUATIONS

Article 18

Cooperation

The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to resolve any matter that might affect its operation.

SECTION A: Cooperative Consultations

ARTICLE 19

Consultations between National Secretariats

1. A National Secretariat may request consultations, to be conducted in accordance with the procedures set out in paragraph 2, with the other National Secretariat in relation to the other Party's labour law, its administration, or labour market conditions in its territory.

2. In such consultations, the requested National Secretariat shall promptly provide such publicly available data or information, including:

(a) descriptions of its laws, regulations, procedures, policies or practices,

(b) proposed changes to such procedures, policies or practices, and

(c) such clarifications and explanations related to such matters,

as may assist the National Secretariats to understand better and respond to the issues raised.

ARTICLE 20

Ministerial Consultations

1. Either Party may request in writing consultations with the other Party at the ministerial level regarding any matter within the scope of this Agreement. The requesting Party shall provide specific and sufficient information to allow the requested Party to respond.

2. In such consultations, the Parties shall make every attempt to resolve the matter, including through the exchange of sufficient publicly available information to enable a full examination of the matter.

SECTION B: Evaluations

ARTICLE 21

Evaluation Committee of Experts

1. If a matter has not been resolved after ministerial consultations pursuant to Article 20, either Party may request in writing the establishment of an Evaluation Committee of Experts (ECE). The requesting Party shall deliver the request to the other Party. Subject to paragraphs 3 and 4, the Council shall establish an ECE on delivery of the request.

2. The ECE shall analyze, in the light of the objectives of this Agreement and in a non-adversarial manner, patterns of practice of both Parties in the enforcement of their occupational safety and health or other technical labour standards as they apply to the particular matter considered by the Parties under Article 20.

3. No ECE may be convened if a Party obtains a ruling under Annex 21 that the matter:

(a) is not trade-related; or

(b) is not covered by mutually recognized labour laws.

4. No ECE may be convened regarding any matter that was previously the subject of an ECE report in the absence of such new information as would warrant a further report.

ARTICLE 22

Rules of Procedure

1. The Council shall establish rules of procedure for ECEs, which shall apply unless the Council otherwise decides. The rules of procedure shall provide that:

(a) an ECE shall normally comprise three members;

(b) the chair shall be selected by the Council from a roster of experts developed in consultation with the International Labour Organization (ILO) pursuant to Article 42 and, where possible, other members shall be selected from a roster developed by the Parties;

(c) ECE members shall

(i) have expertise or experience in labour matters or other appropriate disciplines,

(ii) be chosen strictly on the basis of objectivity, reliability and sound judgment,

(iii) be independent of, and not be affiliated with or take instructions from, either Party, and

(iv) comply with a code of conduct to be established by the Council;

(d) an ECE may invite written submissions from the Parties and the public;

(e) an ECE may consider, in preparing its report, any information provided by

(i) the National Secretariat of each Party,

(ii) organizations, institutions and persons with relevant expertise, and

(iii) the public; and

(f) each Party shall have a reasonable opportunity to review and comment on information that the ECE receives and to make written submissions to the ECE.

2. The National Secretariats shall provide appropriate administrative assistance to an ECE, in accordance with the rules of procedure established by the Council under paragraph 1.

3. The Parties shall agree on a separate budget for each ECE. The Parties shall contribute equally to the ECE budget.

ARTICLE 23

Draft Evaluation Reports

1. Within 120 days after it is established, or such other period as the Council may decide, the ECE shall present a draft report for consideration by the Council, which shall contain:

(a) a comparative assessment of the matter under consideration;

(b) its conclusions; and

(c) where appropriate, practical recommendations that may assist the Parties in respect of the matter.

2. Each Party may submit written views to the ECE on its draft report within 30 days. The ECE shall take such views into account in preparing its final report.

ARTICLE 24

Final Evaluation Reports

1. The ECE shall present a final report to the Council within 60 days after presentation of the draft report, unless the Council otherwise decides.

2. The final report shall be published within 30 days after its presentation to the Council, unless the Council otherwise decides.

3. The Parties shall provide to each other written responses to the recommendations contained in the ECE report within 90 days of its publication.

4. The final report and such written responses shall be tabled for consideration by the Council. The Council may keep the matter under review.

PART FIVE

RESOLUTION OF DISPUTES

ARTICLE 25

Consultations

1. Following presentation to the Council under Article 24(1) of an ECE final report that addresses the enforcement of a Party's occupational safety and health, child labour or minimum wage technical labour standards, either Party may request in writing consultations with the other Party at a special session of the Council regarding whether there has been a persistent pattern of failure by the other Party to effectively enforce such standards in respect of the general subject matter addressed in the report.

2. In such consultations, the Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter.

3. Unless agreed otherwise, the Council shall convene within 60 days of the delivery of the request and shall endeavour to resolve the dispute promptly.

4. The Council may:

(a) call on such technical advisers or create such working groups or expert groups as it deems necessary, or

(b) have recourse to good offices, conciliation, mediation or such other dispute resolution procedures,

as may assist the Parties to reach a mutually satisfactory resolution of the dispute.

5. Where the Council decides that a matter is more properly covered by another agreement or arrangement to which the Parties are party, it shall refer the matter for appropriate action in accordance with such other agreement or arrangement.

ARTICLE 26

Request for an Arbitral Panel

1. If the matter has not been resolved within 60 days after the Council has convened pursuant to Article 25, the Council shall, on the written request of either Party, convene an arbitral panel to consider the matter where the alleged persistent pattern of failure by the Party complained against to effectively enforce its occupational safety and health, child labour or minimum wage technical labour standards is:

(a) trade-related; and

(b) covered by mutually recognized labour laws.

2. Unless otherwise agreed by the Parties, the panel shall be established and perform its functions in a manner consistent with the provisions of this Part.

ARTICLE 27

Roster

1. The Council shall establish and maintain a roster of up to 30 individuals, six of whom must not be citizens of either of the Parties, who are willing and able to serve as panelists. The roster members shall be appointed by mutual agreement for terms of three years, and may be reappointed.

2. Roster members shall:

(a) have expertise or experience in labour law or its enforcement, or in the resolution of disputes arising under international agreements, or other relevant scientific, technical or professional expertise or experience;

(b) be chosen strictly on the basis of objectivity, reliability and sound judgment;

(c) be independent of, and not be affiliated with or take instructions from, either Party; and

(d) comply with a code of conduct to be established by the Council.

ARTICLE 28

Qualifications of Panelists

1. All panelists shall meet the qualifications set out in Article 27(2).

2. Individuals may not serve as panelists for a dispute in which:

(a) they have participated pursuant to Article 25(4) or participated as members of an ECE that addressed the matter; or

(b) they have, or a person or organization with which they are affiliated has, an interest, as set out in the code of conduct established under Article 27(2)(d).

ARTICLE 29

Panel Selection

1. For purposes of selecting a panel, the following procedures shall apply:

(a) The panel shall comprise five members.

(b) The Parties shall endeavour to agree on the chair of the panel within 15 days after the Council decides to convene the panel. If the Parties are unable to agree on the chair within this period, the Party chosen by lot shall select within five days a chair who is not a citizen of that Party.

(c) Within 15 days of selection of the chair, each Party shall select two panelists who are citizens of the other Party.

(d) If either Party fails to select its panelists within such period, such panelists shall be selected by lot from among the roster members who are citizens of the other Party.

2. Panelists shall normally be selected from the roster. Either Party may exercise a peremptory challenge against any individual not on the roster who is proposed as a panelist by the other Party within 30 days after the individual has been proposed.

3. If either Party believes that a panelist is in violation of the code of conduct, the Parties shall consult and, if they agree, the panelist shall be removed and a new panelist shall be selected in accordance with this Article.

ARTICLE 30

Rules of Procedure

1. The Council shall establish Model Rules of Procedure. The procedures shall provide:

(a) a right to at least one hearing before the panel;

(b) the opportunity to make initial and rebuttal written submissions; and

(c) that no panel may disclose which panelists are associated with majority or minority opinions.

2. Unless the Parties otherwise agree, panels convened under this Part shall be established and conduct their proceedings in accordance with the Model Rules of Procedure.

3. Unless the Parties otherwise agree within 20 days after the Council convenes the panel, the terms of reference shall be:

"To examine, in light of the relevant provisions of the Agreement, including those contained in Part Five, whether there has been a persistent pattern of failure by the Party complained against to effectively enforce its occupational safety and health, child labour or minimum wage technical labour standards, and to make findings, determinations and recommendations in accordance with Article 32(2)."

ARTICLE 31

Role of Experts

On request of either Party, or on its own initiative, the panel may seek information and technical advice from any person or body that it deems appropriate, provided that the Parties so agree and subject to such terms and conditions as the Parties may agree.

ARTICLE 32

Initial Report

1. Unless the Parties otherwise agree, the panel shall base its report on the submissions and arguments of the Parties and on any information before it pursuant to Article 31.

2. Unless the Parties otherwise agree, the panel shall, within 180 days after the last panelist is selected, present to the Parties an initial report containing:

(a) findings of fact;

(b) its determination as to whether there has been a persistent pattern of failure by the Party complained against to effectively enforce its occupational safety and health, child labour or minimum wage technical labour standards in a matter that is trade-related and covered by mutually recognized labour laws, or any other determination requested in the terms of reference; and

(c) in the event the panel makes an affirmative determination under subparagraph (b), its recommendations, if any, for the resolution of the dispute, which normally shall be that the Party complained against adopt and implement an action plan sufficient to remedy the pattern of non-enforcement.

3. Panelists may furnish separate opinions on matters not unanimously agreed.

4. Either Party may submit written comments to the panel on its initial report within 30 days of presentation of the report.

5. In such an event, and after considering such written comments, the panel, on its own initiative or on the request of either Party, may:

(a) request the views of the Parties;

(b) reconsider its report; and

(c) make any further examination that it considers appropriate.

ARTICLE 33

Final Report

1. The panel shall present to the Parties a final report, including any separate opinions on matters not unanimously agreed, within 60 days of presentation of the initial report, unless the Parties otherwise agree.

2. The Parties shall transmit to the Council the final report of the panel, as well as any written views that either Party desires to be appended, on a confidential basis within 15 days after it is presented to them.

3. The final report of the panel shall be published five days after it is transmitted to the Council.

ARTICLE 34

Implementation of Final Report

If, in its final report, a panel determines that there has been a persistent pattern of failure by the Party complained against to effectively enforce its occupational safety and health, child labour or minimum wage technical labour standards, the Parties may agree on a mutually satisfactory action plan, which normally shall conform with the determinations and recommendations of the panel.

ARTICLE 35

Review of Implementation

1. If, in its final report, a panel determines that there has been a persistent pattern of failure by the Party complained against to effectively enforce its occupational safety and health, child labour or minimum wage technical labour standards, and:

(a) the Parties have not agreed on an action plan under Article 34 within 60 days of the date of the final report, or

(b) the Parties cannot agree on whether the Party complained against is fully implementing

(i) an action plan agreed under Article 34,

(ii) an action plan deemed to have been established by a panel under paragraph 2, or

(iii) an action plan approved or established by a panel under paragraph 4,

either Party may request that the panel be reconvened by delivering a request in writing to the other Party. The Council shall reconvene the panel on delivery of the request to the other Party.

2. No Party may make a request under paragraph 1(a) earlier than 60 days, or later than 120 days, after the date of the final report. If the Parties have not agreed to an action plan and if no request was made under paragraph l(a), the last action plan, if any, submitted by the Party complained against to the other Party within 60 days of the date of the final report, or such other period as the Parties may agree, shall be deemed to have been established by the panel 120 days after the date of the final report.

3. A request under paragraph l(b) may be made no earlier than 180 days after an action plan has been:

(a) agreed under Article 34,

(b) deemed to have been established by a panel under paragraph 2, or

(c) approved or established by a panel under paragraph 4,

and only during the term of any such action plan.

4. Where a panel has been reconvened under paragraph l(a), it:

(a) shall determine whether any action plan proposed by the Party complained against is sufficient to remedy the pattern of non-enforcement and

(i) if so, shall approve the plan, or

(ii) if not, shall establish such a plan consistent with the law of the Party complained against, and

(b) may, where warranted, impose a monetary enforcement assessment in accordance with Annex 35,

within 90 days after the panel has been reconvened or such other period as the Parties may agree.

5. Where a panel has been reconvened under paragraph l(b), it shall determine either that:

(a) the Party complained against is fully implementing the action plan, in which case the panel may not impose a monetary enforcement assessment, or

(b) the Party complained against is not fully implementing the action plan, in which case the panel shall impose a monetary enforcement assessment in accordance with Annex 35,

within 60 days after it has been reconvened or such other period as the Parties may agree.

6. A panel reconvened under this Article shall provide that the Party complained against shall fully implement any action plan referred to in paragraph 4(a)(ii) or 5(b), and pay any monetary enforcement assessment imposed under paragraph 4(b) or 5(b), and any such provision shall be final.

ARTICLE 36

Further Proceeding

A complaining Party may, at any time beginning 180 days after a panel determination under Article 35(5)(b), request in writing that a panel be reconvened to determine whether the Party complained against is fully implementing the action plan. On delivery of the request to the other Party, the Council shall reconvene the panel. The panel shall make the determination within 60 days after it has been reconvened or such other period as the Parties may agree.

ARTICLE 37

Domestic Enforcement and Collection

1. For the purposes of this Article, "panel determination" means:

(a) a determination by a panel under Article 35(4)(b) or 5(b) that provides that the Party complained against shall pay a monetary enforcement assessment; and

(b) a determination by a panel under Article 35(5)(b) that provides that the Party complained against shall fully implement an action plan where the panel:

(i) has previously established an action plan under Article 35(4)(a)(ii) or imposed a monetary enforcement assessment under Article 35(4)(b); or

(ii) has subsequently determined under Article 36 that the Party complained against is not fully implementing an action plan.

2. In Canada, the procedures shall be the following:

(a) subject to subparagraph (b), the National Secretariat of Chile, acting on behalf of the Commission, may in the name of the Commission file in a court of competent jurisdiction a certified copy of a panel determination;

(b) the National Secretariat of Chile, acting on behalf of the Commission, may file in court a panel determination that is a panel determination described in paragraph 1(a) only if the Party complained against has failed to comply with the determination within 180 days of when the determination was made;

(c) when filed, the panel determination, for purposes of enforcement, shall become an order of the court;

(d) the National Secretariat of Chile, acting on behalf of the Commission, may take proceedings for enforcement of a panel determination that is made an order of the court, in that court, against the person in Canada against whom the panel determination is addressed in accordance with paragraph 6 of Annex 43;

(e) proceedings to enforce a panel determination that has been made an order of the court shall be conducted in Canada by way of summary proceedings;

(f) in proceedings to enforce a panel determination that is a panel determination described in paragraph 1(b) and that has been made an order of the court, the court shall promptly refer any question of fact or any question of interpretation of the panel determination to the panel that made the panel determination, and the decision of the panel shall be binding on the court;

(g) a panel determination that has been made an order of the court shall not be subject to domestic review or appeal; and

(h) an order made by the court in proceedings to enforce a panel determination that has been made an order of the court shall not be subject to review or appeal.

3. In Chile, the procedures shall be the following:

(a) subject to subparagraph (b), the National Secretariat of Canada, acting on behalf of the Commission, may in the name of the Commission file in a court of competent jurisdiction a certified copy of a panel determination;

(b) the National Secretariat of Canada, acting on behalf of the Commission, may file in court a panel determination that is a panel determination described in paragraph 1(a) only if the Party complained against has failed to comply with the determination within 180 days of when the determination was made;

(c) the court of competent jurisdiction is the Supreme Court;

(d) the National Secretariat of Canada, acting on behalf of the Commission, shall certify that the panel determination is final and not subject to appeal;

(e) the Supreme Court shall issue a resolution ordering the enforcement of the panel determination within 10 days of when the petition was filed;

(f) the resolution of the Supreme Court shall be addressed to the competent administrative authority for its prompt compliance.

4. Any change by the Parties to the procedures adopted and maintained by each of them pursuant to this Article that has the effect of undermining the provisions of this Article shall be considered a breach of this Agreement.

ARTICLE 38

Funding of Panel Proceedings

The Parties shall agree on a separate budget for each set of panel proceedings pursuant to Articles 26 to 36. The Parties shall contribute equally to this budget.

PART SIX

GENERAL PROVISIONS

ARTICLE 39

Enforcement Principle

Nothing in this Agreement shall be construed to empower a Party's authorities to undertake labour law enforcement activities in the territory of the other Party.

ARTICLE 40

Private Rights

Neither Party may provide for a right of action under its domestic law against the other Party on the ground that the other Party has acted in a manner inconsistent with this Agreement.

ARTICLE 41

Protection of Information

1. If a Party provides confidential or proprietary information to the other Party, including its National Secretariat, or the Council, the recipient shall treat the information on the same basis as the Party providing the information.

2. Confidential or proprietary information provided by a Party to an ECE or a panel under this Agreement shall be treated in accordance with the rules of procedure established under Articles 22 and 30.

ARTICLE 42

Cooperation with the ILO

The Parties shall seek to establish cooperative arrangements with the ILO to enable the Council and Parties to draw on the expertise and experience of the ILO for purposes of implementing Article 22(1).

ARTICLE 43

Extent of Obligations

Annex 43 applies to the Parties specified in that Annex.

ARTICLE 44

Definitions

For purposes of this Agreement:

A Party has not failed to "effectively enforce its occupational safety and health, child labour or minimum wage technical labour standards" or comply with Article 3(1) in a particular case where the action or inaction by agencies or officials of that Party:

(a) reflects a reasonable exercise of the agency's or the official's discretion with respect to investigatory, prosecutorial, regulatory or compliance matters; or

(b) results from bona fide decisions to allocate resources to enforcement in respect of other labour matters determined to have higher priorities;

"citizen" means a citizen as defined in Annex 44 for the Party specified in that Annex;

"labour law" means laws and regulations, or provisions thereof, that are directly related to:

(a) freedom of association and protection of the right to organize;

(b) the right to bargain collectively;

(c) the right to strike;

(d) prohibition of forced labour;

(e) labour protections for children and young persons;

(f) minimum employment standards, such as minimum wages and overtime pay, covering wage earners, including those not covered by collective agreements;

(g) elimination of employment discrimination on the basis of grounds such as race, religion, age, sex, or other grounds as determined by each Party's domestic laws;

(h) equal pay for men and women;

(i) prevention of occupational injuries and illnesses;

(j) compensation in cases of occupational injuries and illnesses; or

(k) protection of migrant workers;

"mutually recognized labour laws" means laws of both Parties that address the same general subject matter in a manner that provides enforceable rights, protections or standards;

"pattern of practice" means a course of action or inaction beginning after the date of entry into force of the Agreement, and does not include a single instance or case;

"persistent pattern" means a sustained or recurring pattern of practice;

"province" means a province of Canada, and includes the Yukon Territory and the Northwest Territories and their successors;

"publicly available information" means information to which the public has a legal right under the statutory laws of the Party;

"technical labour standards" means laws and regulations, or specific provisions thereof, that are directly related to subparagraphs (d) through (k) of the definition of labour law. For greater certainty and consistent with the provisions of this Agreement, the setting of all standards and levels in respect of minimum wages and labour protections for children and young persons by each Party shall not be subject to obligations under this Agreement. Each Party's obligations under this Agreement pertain to enforcing the level of the general minimum wage and child labour age limits established by that Party;

"territory" means for a Party the territory of that Party as set out in Annex 44; and

"trade-related" means related to a situation involving workplaces, firms, companies or sectors that produce goods or provide services:

(a) traded between the territories of the Parties; or

(b) that compete, in the territory of the Party whose labour law was the subject of ministerial consultations under Article 20, with goods or services produced or provided by persons of the other Party.

1. The Parties may agree on any modification of or addition to this Agreement.

2. When so agreed, and approved in accordance with the applicable legal procedures of each Party, a modification or addition shall constitute an integral part of this Agreement.

ARTICLE 48

Accession of Chile to the North American Agreement on Labor Cooperation

The Parties shall work toward the early accession of Chile to the North American Agreement on Labor Cooperation.

ARTICLE 49

Termination

Either Party may terminate this Agreement by giving written notice to the other Party. Such termination shall take effect six months after the date of receipt of the written notice by the other Party.

ARTICLE 50

Authentic Texts

The Spanish, English and French texts of this Agreement are equally authentic.

IN WITNESS WHEREOF, the undersigned, being duly authorized by the respective Governments, have signed this Agreement.

DONE in duplicate, in Ottawa, this 6th day of February, 1997.

Alfonso Gagliano

FOR THE GOVERNMENT OF CANADA

Rodrigo Diaz

FOR THE GOVERNMENT OF THE REPUBLIC OF CHILE

ANNEX 1

LABOUR PRINCIPLES

The following are guiding principles that the Parties are committed to promote, subject to each Party's domestic law, but do not establish common minimum standards for their domestic law. They indicate broad areas of concern where the Parties have developed, each in its own way, laws, regulations, procedures and practices that protect the rights and interests of their respective workforces.

1. Freedom of association and protection of the right to organize

The right of workers exercised freely and without impediment to establish and join organizations of their own choosing to further and defend their interests.

2. The right to bargain collectively

The protection of the right of organized workers to freely engage in collective bargaining on matters concerning the terms and conditions of employment.

3. The right to strike

The protection of the right of workers to strike in order to defend their collective interests.

4. Prohibition of forced labour

The prohibition and suppression of all forms of forced or compulsory labour, except for types of compulsory work generally considered acceptable by the Parties, such as compulsory military service, certain civic obligations, prison labour not for private purposes and work exacted in cases of emergency.

5. Labour protections for children and young persons

The establishment of restrictions on the employment of children and young persons that may vary taking into consideration relevant factors likely to jeopardize the full physical, mental and moral development of young persons, including schooling and safety requirements.

6. Minimum employment standards

The establishment of minimum employment standards, such as minimum wages and overtime pay, for wage earners, including those not covered by collective agreements.

7. Elimination of employment discrimination

Elimination of employment discrimination on such grounds as race, religion, age, sex or other grounds, subject to certain reasonable exceptions, such as, where applicable, bona fide occupational requirements or qualifications and established practices or rules governing retirement ages, and special measures of protection or assistance for particular groups designed to take into account the effects of discrimination.

8. Equal pay for women and men

Equal wages for women and men by applying the principle of equal pay for equal work in the same establishment.

9. Prevention of occupational injuries and illnesses

Prescribing and implementing standards to minimize the causes of occupational injuries and illnesses.

10. Compensation in cases of occupational injuries or illnesses

The establishment of a system providing benefits and compensation to workers or their dependents in cases of occupational injuries, accidents or fatalities arising out of, linked with or occurring in the course of employment.

11. Protection of migrant workers

Providing migrant workers in a Party's territory with the same legal protection as the Party's nationals in respect of working conditions.

ANNEX 21

1. Where a Party has requested the Council to convene an ECE, the Council shall, on the written request of the other Party, select an independent expert to make a ruling concerning whether the matter is:

(a) trade-related; or

(b) covered by mutually recognized labour laws.

2. The Council shall establish rules of procedure for the selection of the expert and for submissions by the Parties. Unless the Council decides otherwise, the expert shall present a ruling within 15 days after the expert is selected.

ANNEX 35

1. Any monetary enforcement assessment shall be no greater than 10 million dollars (U.S.) or its equivalent in the currency of the Party complained against.

2. In determining the amount of the assessment, the panel shall take into account:

(a) the pervasiveness and duration of the Party's persistent pattern of failure to effectively enforce its occupational safety and health, child labour or minimum wage technical labour standards;

(b) the level of enforcement that could reasonably be expected of a Party given its resource constraints;

(c) the reasons, if any, provided by the Party for not fully implementing an action plan;

(d) efforts made by the Party to begin remedying the pattern of non-enforcement after the final report of the panel; and

(e) any other relevant factors.

3. All monetary enforcement assessments shall be paid in the currency of the Party complained against into a fund established in the name of the Commission by the Council and shall be expended at the direction of the Council to improve or enhance the labour law enforcement in the Party complained against, consistent with its law.

1. On the date of signature of this Agreement, or of the exchange of written notifications under Article 46, Canada shall set out in a declaration a list of any provinces for which Canada is to be bound in respect of matters within their jurisdiction. The declaration shall be effective on delivery to Chile, and shall carry no implication as to the internal distribution of powers within Canada. Canada shall notify Chile six months in advance of any modification to its declaration.

2. Unless a communication relates to a matter that would be under federal jurisdiction if it were to arise within the territory of Canada, the Canadian National Secretariat shall identify the province of residence or establishment of the author of any communication regarding the labour law of Chile that it forwards to the Chilean National Secretariat. The Chilean National Secretariat may choose not to respond if that province is not included in the declaration made under paragraph 1.

3. Canada may not request consultations under Article 20, the establishment of an Evaluation Committee of Experts under Article 21, consultations under Article 25, or the establishment of a panel under Article 26 at the instance, or primarily for the benefit, of the government of a province not included in the declaration made under paragraph 1.

4. Canada may not request consultations under Article 20, the establishment of an Evaluation Committee of Experts under Article 21, consultations under Article 25, or the establishment of a panel under Article 26, unless Canada states in writing that the matter would be under federal jurisdiction if it were to arise within the territory of Canada, or:

(a) Canada states in writing that the matter would be under provincial jurisdiction if it were to arise within the territory of Canada; and

(b) the federal government and the provinces included in the declaration account for at least 35 percent of Canada's labour force for the most recent year in which data are available; and

(c) where the matter concerns a specific industry or sector, at least 55 percent of the workers concerned are employed in provinces included in Canada's declaration under paragraph 1.

5. Chile may not request consultations under Article 20, the establishment of an Evaluation Committee of Experts under Article 21, consultations under Article 25, or the establishment of a panel under Article 26, concerning a matter related to a labour law of a province unless that province is included in the declaration made under paragraph 1 and the requirements of subparagraphs 4(b) and (c) have been met.

6. Canada shall, no later than the date on which an arbitral panel is convened pursuant to Article 26 respecting a matter within the scope of paragraph 5 of this Annex, notify Chile in writing of whether any monetary enforcement assessment or action plan imposed by a panel under Article 35(4) or (5) against Canada shall be addressed to Her Majesty in right of Canada or Her Majesty in right of the province concerned.

7. Canada shall use its best efforts to make the Agreement applicable to as many of its provinces as possible.

For purposes of this Agreement:

"citizen" means:

(a) with respect to Canada, a natural person who is a citizen of Canada under the Citizenship Act, R.S.C. 1985, c. C-29, as amended from time to time or under any successor legislation; and

(b) with respect to Chile, a Chilean as defined in Article 10 of the Political Constitution of the Republic of Chile (Constitución Política de la República de Chile); and

"territory" means:

(a) with respect to Canada, the territory to which its customs laws apply, including any areas beyond the territorial seas of Canada within which, in accordance with international law and its domestic law, Canada may exercise rights with respect to the seabed and subsoil and their natural resources; and

(b) with respect to Chile, the land, maritime, and air space under its sovereignty, and the exclusive economic zone and the continental shelf over which it exercises sovereign rights and jurisdiction in accordance with international law and its domestic law.