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PUBLIC REPORT OF REVIEW OF NAO SUBMISSION NO. 2000-01


U.S. National Administrative Office
Bureau of International Labor Affairs
U.S. Department of Labor

April 6, 2001


TABLE OF CONTENTS

Executive Summary

1. Introduction

2. Summary of Submission 2000-01

2.1 Case Summary

2.2 Issues

2.2.1 Occupational Safety and Health

2.2.2 Compensation in Cases of Occupational Illnesses and Injuries

2.3 Action Requested

3. U.S. NAO Review

3.1 Information from Submitters

3.2 Information from Mexican NAO

3.3 Information from Breed Technologies

3.4 Information from Unions

3.5 Information from Public Hearing

3.6 Information from Site Visit

3.7 Information from Experts

4. North American Agreement on Labor Cooperation (NAALC) Obligations

5. Mexican Law

5.1 Mexican Constitution

5.2 Mexican Federal Labor Law

5.2.1 Occupational Safety and Health

5.2.1.1 General Occupational Safety and Health Standards

5.2.1.2 Employee Training

5.2.1.3 Joint Safety and Health Committees

5.2.1.4 Workplace Inspections: Obligations and Procedures

5.2.1.5 Regulatory Powers and Sanctions

5.2.1.6 Penalties

5.2.1.7 Reporting of Violations of Labor Laws

5.2.2 Workers' Compensation

5.3 Federal Regulation on Safety, Health and the Workplace

5.3.1 Occupational Safety and Health

5.3.1.1 Employee Training

5.3.1.2 Health and Safety Studies

5.3.1.3 Inspections

5.3.1.4 Hazardous Materials

5.3.1.5 Ventilation

5.3.1.6 Personal Protective Equipment

5.3.1.7 Ergonomics

5.3.1.8 Joint Safety and Health Committees

5.3.2 Workers' Compensation

5.3.2.1 Medical Services

5.3.2.2 Notification of Occupational Accidents

5.4 Official Mexican Standards (NOMs-STPS)

5.4.1 Workplace Ventilation

5.4.2 Fire Security

5.4.3 Use of Chemicals

5.4.4 Personal Protective Equipment

5.4.5 Joint Safety and Health Committees

5.4.6 Notice of Accidents and Illnesses

5.4.7 Ergonomics

5.5 General Health Law

5.5.1 Occupational Safety and Health

5.5.1.1 Applicability

5.5.1.2 Authority of SSA

5.5.1.3 Use of Chemicals

5.5.1.4 Enforcement

5.5.2 Workers' Compensation

5.6 Official Mexican Standards-SSA (NOMs-SSA)

5.7 Social Security Law

5.8 Medical Services Regulation

5.9 Administrative Procedures

5.10 International Labor Organization (ILO) Conventions

5.10.1 Occupational Safety and Health

5.10.2 Workers' Compensation

5.11 Additional International Agreements Ratified by Mexico

6. Analysis

6.1 Occupational Safety and Health

6.1.1 Use of Chemicals

6.1.1.1 Inspections

6.1.1.2 Monitoring

6.1.2 Ergonomics

6.2 Workers' Compensation

6.2.1 Compensation Process

6.2.2 Investigations

6.2.3 Training Programs

7. Findings

8. Recommendation

End Notes


EXECUTIVE SUMMARY

PURPOSE OF THE REPORT

Submission No. 2000-01 was filed pursuant to the North American Agreement on Labor Cooperation (NAALC) on July 3, 2000, by Current and Former Workers at Auto Trim and Custom Trim/Breed Mexicana, Coalition for Justice in the Maquiladoras (CJM), and more than 20 additional unions and nongovernmental organizations in Canada, Mexico, and the United States.

The submission was accepted for review on September 1, 2000, as it raised issues related to labor law matters in Mexico and because a review would further the objectives of the NAALC. In accordance with its procedural guidelines, the U.S. NAO completed its review of the case, which included a public hearing on December 12, 2000.

SUMMARY OF THE SUBMISSION

Submission 2000-01 raises concerns about occupational safety and health and compensation in cases of occupational injuries and illnesses at Auto Trim of Mexico in Matamoros, Tamaulipas, and at Custom Trim/Breed Mexicana in Valle Hermoso, Tamaulipas.

According to the submitters, workers at Auto Trim and Custom Trim/Breed Mexicana approached management and union representatives with concerns about safety and health conditions and workers' compensation starting in 1992. These concerns were included in demands made by workers at Custom Trim/Breed Mexicana who engaged in work stoppages in May 1997.

In May 1998, current and former workers of Auto Trim and Custom Trim/Breed Mexicana sent a petition to the Secretariat of Labor and Social Welfare (STPS) regional offices in Ciudad Victoria requesting an inspection of the plants. In April 1999, the same group of workers sent petitions and made visits to STPS, the Mexican Social Security Institute (IMSS), and the Secretariat of Health (SSA) again requesting that inspections be carried out. The submitters claim that they received a letter from SSA stating that an inspection would be carried out on a certain date, but are not aware that any such inspection occurred. The submitters also state that they did not receive responses from STPS or IMSS and that, to their knowledge, these agencies have not conducted inspections at either facility.

The submitters assert that workers at Auto Trim and Custom Trim/Breed Mexicana suffer skin, respiratory, eye, central nervous system, and reproductive health problems due to their exposure to chemicals in their work. They also assert that workers suffer ergonomic ailments such as carpal tunnel syndrome and back and shoulder pain due to the repetitive nature of their work. Furthermore, the submitters claim that workers who suffer these conditions are not properly treated and compensated.

The submitters claim that the Government of Mexico failed to enforce its law by not conducting inspections at and imposing sanctions on Auto Trim and Custom Trim/Breed Mexicana. They assert that the government failed to ensure that workers received training in safety and health, medical exams, and adequate personal protective equipment; the plant had adequate ventilation and properly functioning safety and health committees; the plants conducted risk assessments and monitoring; and the plants properly reported workplace accidents and illnesses.

ANALYSIS AND FINDINGS

The U.S. NAO review determined that STPS and IMSS have carried out periodic inspections and verification visits at the facilities during the period of 1991-2000. The U.S. NAO has no information concerning SSA inspections of the facilities. There have been STPS inspections indicating review of equipment and safeguards, ventilation and temperature control systems, handling of chemicals and other hazardous materials, and training requirements. IMSS has reviewed the reporting and treatment of work place accidents and illnesses. It also is evident that in the course of conducting inspections, inspectors met with safety and health committee members and interviewed workers at the facilities and that inspection reports were provided to the unions.

Although the U.S. NAO finds that the Government of Mexico conducted inspections and verification visits, the review raises questions regarding the efficacy of these processes. Inspection reports indicate that worker interviews are not confidential, which raises a concern as to whether a worker is likely to feel free to provide any information critical of the employer. Inspectors appear to use a checklist approach in their inspections, noting the existence of work place systems and documents, without actually testing and monitoring to assure compliance. Additionally, the procedures for certifying third party monitors, which are relied on by employers and the governmental authorities, are not clear.

STPS and IMSS appear to have generally enforced applicable laws and regulations with respect to monitoring and reporting of work place accidents and illnesses. Inspection reports examined by the U.S. NAO also reveal that STPS and IMSS coordinated their activities in specific cases and that reports of work-related injuries and illnesses to IMSS were examined and verified in follow-up inspections. However, the submitters raised legitimate concerns regarding the transparency, independence, and fairness of such processes.

Workers offered credible testimony about the unwillingness of medical staff at the facilities to send workers to IMSS and of IMSS doctors to diagnose injuries as work-related. Certain physicians apparently work for both employers and IMSS, which creates a concern about conflicts of interest and a physician's credibility in reporting, diagnosis, and valuation of work place injuries and illnesses. An appearance of impropriety created by potential conflicts of interest impacts workers' perception of the fairness and transparency of the process.

Mexican law, as reflected in LFT Article 132 and RFSH Article 102, encourages an ergonomically sound work environment and requires employers to take ergonomic practices into account in the workplace. Inspection reports examined by the U.S. NAO do not include specific information or references to ergonomic conditions, which leaves it unclear as to how the Government of Mexico enforces the principles enunciated in LFT article 132 and RFSH Article 102.

There is evidence that STPS responded to a request for inspection from the Auto Trim union in 1995 and the submitters’ petition for inspection in 1998. However, there is no indication that STPS officials ever communicated their efforts to the workers who submitted the 1998 petition despite numerous inquires by the workers and their representatives. With regard to the 1999 petitions to STPS, IMSS, and SSA, the Government of Mexico indicated that it has no record of their receipt. This contrasts with credible information gathered by the U.S. NAO that indicates all three agencies received the petitions.

The failure of the Government of Mexico to communicate to the workers about its efforts undertaken in response to the 1998 petition, the lack of records on the 1999 petitions, and the failure to respond to workers’ inquiries about the petitions are inconsistent with the Government of Mexico’s obligations under the NAALC, which obligate the government to require record keeping; to give due consideration to any request for an investigation of suspected violations of labor law; to ensure that persons have appropriate access to administrative proceedings for the enforcement of labor law; to ensure that proceedings are transparent; to provide for procedural guarantees in those proceedings; and to promote public awareness of labor law.

RECOMMENDATION

The U.S. NAO recommends ministerial consultations pursuant to Article 22 of the NAALC on the occupational safety and health and workers' compensation issues raised in this submission.


PUBLIC REPORT OF REVIEW OF U.S. NAO SUBMISSION NO. 2000-01

1. Introduction

The U.S. National Administrative Office (U.S. NAO) was established pursuant to the North American Agreement on Labor Cooperation (NAALC), the supplemental labor agreement to the North American Free Trade Agreement (NAFTA). The NAALC provides for the review of submissions concerning labor law matters arising in Canada or Mexico by the U.S. NAO. Article 16(3) of the NAALC states:

[e]ach NAO shall provide for the submission and receipt, and periodically publish a list, of public communications on labor law matters arising in the territory of another Party. Each NAO shall review such matters, as appropriate, in accordance with its domestic procedures.

Labor law is defined in Article 49 of the NAALC as follows:

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 labor; (e) labor 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; and (k) protection of migrant workers.

Procedural guidelines governing the receipt, acceptance for review, and conduct of review of submissions filed with the U.S. NAO were issued pursuant to Article 16(3) of the NAALC. The U.S. NAO's procedural guidelines were published and became effective on April 7, 1994 in a Revised Notice of Establishment of the U.S. National Administrative Office and Procedural Guidelines.[1]  Pursuant to these guidelines, once a determination is made to accept a submission for review, the U.S. NAO shall conduct such further examination of the submission as may be appropriate to assist the U.S. NAO to better understand and publicly report on the issues raised therein. The Secretary of the U.S. NAO shall issue a public report that includes a summary of the review proceedings and findings and recommendations. The review must be completed and the public report issued within 120 days of acceptance of a submission for review, unless circumstances require an extension of time up to 60 additional days.

Submission No. 2000-01 was filed with the U.S. NAO on July 3, 2000, by current and former workers at Auto Trim and Custom Trim/Breed Mexicana, Coalition for Justice in the Maquiladoras (CJM), and several other nonprofit organizations, unions, and religious groups.  The submission raises concerns about occupational safety and health and compensation in cases of occupational injuries and illnesses at Auto Trim of Mexico in Matamoros, Tamaulipas, and at Custom Trim/Breed Mexicana at Valle Hermoso, Tamaulipas.  It was accepted for review on September 1, 2000, and a notice of acceptance of review was published in the Federal Register on September 7, 2000.[2]

The submitters argue that Mexico has shown disregard for the principles set out in the preamble to the NAALC to protect, enhance, and enforce basic workers’ rights and to promote high-skill, high productivity economic development in North America by inter alia, encouraging employers and employees in each country to comply with labor laws and to work together in maintaining a progressive, safe, and healthy working environment. Specifically, the submitters maintain that Mexico is in violation of NAALC Articles 1, 3, 4, 5, and 7.  They also assert Mexico’s failure to comply with the Political Constitution of the United Mexican States (hereinafter the Mexican Constitution), the Federal Labor Law (Ley Federal del Trabajo) (hereinafter LFT), the General Health Law (Ley General de Salud) (hereinafter LGS), the Social Security Law (Ley de Seguro Social) (hereinafter LSS), and the current and former Federal Regulation on Safety, Health and the Workplace (Reglamento Federal de Seguridad, Higiene y Medio Ambiente de Trabajo) (hereinafter RFSH).  Additionally, they assert Mexico’s failure to comply with the Medical Services Regulations (Reglamento de Servicios Médicos) (hereinafter RSM) as well as the Official Mexican Standards (Normas Oficiales Mexicanas) (hereinafter NOMs) of the Secretariat of Labor and Social Welfare (Secretaría del Trabajo y Previsión Social) (hereinafter STPS) and the NOMs of the Secretariat of Health (Secretaría de Salud) (hereinafter SSA).  Furthermore, the submitters argue that Mexico is in violation of Conventions 155, 161 and 170 of the International Labor Organization (ILO), as well as the International Covenant on Economic, Social and Cultural Rights, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the Protocol of San Salvador, the Constitution of the World Health Organization (WHO), and the Constitution of the Pan American Health Organization (PAHO).

2. Summary of Submission

2.1 Case Summary

Auto Trim and Custom Trim/Breed Mexicana are owned by Breed Technologies, Inc., a supplier of automotive parts headquartered in Lakeland, Florida.  Breed Technologies acquired the facilities from the Canadian firm Custom Trim Limited in 1997.  Up until that time, Custom Trim Limited operated the facilities as Auto Trim Limited in Matamoros, Tamaulipas, and Custom Trim Limited in Valle Hermoso, Tamaulipas.  Among other activities, Auto Trim workers leather wrapped and sewed steering wheels, and Custom Trim workers leather wrapped and sewed gear shifts.  According to Breed management, the Custom Trim facility in Valle Hermoso was renamed Breed Mexicana Number 2 in 1998.[3]  According to management, most of the leather wrapping functions previously performed at Breed Mexicana have since been moved to Auto Trim and other Breed-owned facilities in the Matamoros area.

According to the submitters, workers at Auto Trim and Custom Trim/Breed Mexicana have suffered illnesses and injuries related to exposure to toxic substances and muscular-skeletal disorders caused by ergonomically unsound practices.  Problems cited by the petitioners include failure to provide information and training about occupational hazards, pressure on workers to meet excessively high production quotas, poorly designed work stations, inadequate personal protective equipment, lack of properly functioning safety and health committees, failure to stock medical supplies on-site, failure to institute workplace monitoring, and substandard ventilation.  The submitters also maintain that occupational illnesses and injuries are often unreported or under-reported and that workers are inadequately treated and compensated.

According to the submitters, inadequate enforcement on the part of the Mexican government, namely the failure to conduct inspections and impose sanctions or fines, has led to the unsafe work conditions at the two plants, and to the failure to properly compensate workers for illnesses and injuries.

According to the submitters, in 1992, workers began complaining to Auto Trim and Custom Trim/Breed Mexicana management about work conditions.  Over the next few years, workers approached the unions at the two plants for additional assistance.  The collective bargaining contract at Auto Trim in Matamoros has been held by a Mexican Confederation of Workers (Confederación de Trabajadores de México) (hereinafter CTM) affiliate, the Union of Day Workers, Industrial Workers, and Workers of the Maquiladora Industry (Sindicato de Jornaleros, Obreros Industriales y de la Industria Maquiladora) (hereinafter SJOIIM), for approximately 15 years.  The collective bargaining contract at Custom Trim/Breed Mexicana in Valle Hermoso has also been held by a CTM affiliate, the Union of the Maquiladora Industry of Valle Hermoso (Sindicato de la Industria Maquiladora de Valle Hermoso) (hereinafter SIMVH), for several years.  In April and May 1997, workers and union representatives at Custom Trim/Breed Mexicana entered into contract negotiations with plant management.  According to the submitters, workers requested wage increases and improvements in safety and health conditions, and when Custom Trim management suspended negotiations in mid-May, workers engaged in work stoppages and sit-ins.  At the end of May, these workers discovered that a collective bargaining agreement had been signed by the union and management.  Employees who had engaged in the sit-ins agreed to return to work, but on June 2, 1997, 28 of these workers were fired.  The employees filed a complaint with Special Conciliation and Arbitration Board No. 8 (CAB) in the state of Tamaulipas challenging their dismissals and in December 1998, the CAB ordered the workers to be reinstated.  Custom Trim/Breed Mexicana appealed the decision, and to date the workers have not been reinstated.

On May 19, 1998, current and former employees of Auto Trim and Custom Trim/Breed Mexicana filed a petition with the STPS Regional Office in Ciudad Victoria, Tamaulipas requesting that STPS conduct inspections of both plants.[4]  The petition also alleged numerous violations of Mexico’s occupational safety and health laws and regulations.

On April 15, 1999, current and former workers at Auto Trim and Custom Trim/Breed Mexicana filed three additional petitions.

[5]  Workers filed a second petition with STPS in Ciudad Victoria in which they requested that STPS conduct plant inspections.  Workers also filed a petition with the Mexican Social Security Institute (Instituto Mexicano del Seguro Social) (hereinafter IMSS) regional headquarters in Ciudad Victoria, requesting investigations of local IMSS offices and doctors that refused to provide proper medical attention and benefits to workers at both plants.  Workers further filed a petition with the SSA regional office in Ciudad Victoria in which they requested that SSA carry out verification visits and inspections of both plants.  The submitters claim that workers and lawyers assisting them visited the offices of STPS, IMSS, and SSA both in Ciudad Victoria and Mexico City to press their case.  Submitters allege that workers received a letter from SSA stating that an inspection would be scheduled, but by the time the letter was received, the scheduled date had already passed.  The submitters state that workers were not aware of such an inspection being conducted.  The submitters state that they have received no other responses to their petitions.[6]

2.2 Issues

2.2.1 Occupational Safety and Health

The submitters argue that Mexico is in violation of various NAALC objectives as laid out in Article 1 of the agreement.  Article 1(a) commits signatories to improve working conditions and living standards; Article 1(b) commits the NAALC countries to promote, to the maximum extent possible, the labor principles set out in Annex 1; Article 1(f) calls on signatories to promote compliance with, and effective enforcement by each Party, of its labor law; and Article 1(g) commits signatories to foster transparency in the administration of labor law. 

The submitters also assert that Mexico has violated NAALC Articles 3(1)(b) by failing to monitor compliance and investigate suspected violations; Article 3(1)(c) by failing to seek assurance of voluntary compliance; Article 3(1)(d) by failing to enforce required record keeping and reporting; Article 3(1)(e) by encouraging the establishment of worker-management committees to address labor regulation of the workplace; and Article 3(1)(g) by failing to initiate proceedings in a timely manner to seek appropriate sanctions or remedies for violation of labor law.  The submitters likewise argue that Mexico is out of compliance with Article 3(2) by failing to require that due consideration be given to a request for an investigation of an alleged violation of the Party’s labor law.

In addition, the submitters assert that Mexico is in violation of Article 4(1) by failing to ensure that persons have appropriate access to administrative and labor tribunals, as well as Article 4(2) by failing to ensure that persons have recourse to procedures by which rights arising under its labor law and collective agreements can be enforced.  Also questioned is Mexico’s compliance with its commitment under Article 5(1)(d) to provide that legal proceedings are not unnecessarily complicated and do not entail unreasonable charges or time limits or unwarranted delays, and under Article 5(2)(a) to provide decisions on cases in writing.  Submitters also assert that Mexico has failed to promote public awareness of its labor law as called for in Article 7.

The submitters assert that the Mexican government, in failing to enforce safe and healthy working conditions, is in violation of several national laws, regulations, and standards.  They charge the government has neglected to enforce the Mexican Constitution, the LFT, the LGS, the RFSH, and several NOMs of STPS and SSA.

Finally, the submitters argue that Mexico is in violation of ILO Convention 155 on occupational safety and health, Convention 161 on occupational health services, and Convention 170 on chemicals.  The Mexican government is also said to be in violation of the International Covenant on Economic, Social and Cultural Rights, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the Protocol of San Salvador, the Constitution of the World Health Organization (WHO), and the Constitution of the Pan American Health Organization.

2.2.2 Compensation in Cases of Occupational Illnesses and Injuries

In relation to workers’ compensation, the submitters claim that Mexico is in violation of NAALC Articles 1(a), 1(b), 1(f), 1(g), 3(1), 3(2), 4(1), 4(2), 5(1), and 7.  The submitters also argue that the Mexican government failed to enforce relevant provisions of the Mexican Constitution, the LFT, the LSS, the LGS, the RFSH, and RSM.  The submitters likewise assert that Mexico has failed to uphold the International Labor Organization’s Convention 17 on workers compensation in cases of occupational accidents and Convention 42 on workers compensation in cases of occupational illnesses.

2.3 Action Requested

The submitters requested the U.S. NAO:

1.                  To investigate and examine the serious health and safety violations at Auto Trim and Custom Trim/Breed Mexicana and the persistent pattern of failure by the Mexican government to enforce Mexican laws designed to improve workplace health and safety conditions.

 

2.                  To request the U.S. Secretary of Labor to consult with her Mexican counterpart to secure the expeditious remedy of the health and safety violations in both plants through bilateral ministerial consultations between both the U.S. NAO and the Mexican NAO pursuant to NAALC articles 22 and 27.

 

3.                  To call for a public hearing in San Antonio or Brownsville, Texas, making the necessary arrangements for visas and simultaneous translators for witnesses.

 

4.                  To convene an inspection and fact-finding commission of health and safety experts from all NAALC member states to thoroughly evaluate and assess the serious allegations raised in this complaint.

 

5.                  To report and make public the conclusions of the fact-finding commission with the appropriate recommendations as per NAALC article 21.2.b.

 

6.                  To hold hearings whereby workers or their designated representatives,  Mexican government officials from the STPS, IMSS, and SSA, plant managers, and independent health and safety experts from the NAALC member states will testify to determine the full scale of the violations of labor, health and safety laws at Auto Trim and Custom Trim/Breed Mexicana, and the extent of the negligence and lack of enforcement by the Mexican government of Mexico’s occupational health and safety laws, regulations, and norms, the NAALC, and international treaties to which Mexico is a party.

 

7.                  To compel the Mexican government to abide by Mexican occupational health and safety laws, regulations; (sic) and norms, as well as the principles of the NAALC; (sic) relevant ILO Conventions, and international human rights law.

 

8.                  To determine the required fines and penalties for each health and safety violation at Auto Trim and Custom Trim/Breed Mexicana according to the conclusions of the fact-finding commission.

 

9.                  To establish an inspection commission to verify and oversee that Auto Trim and Custom Trim/Breed Mexicana comply with health and safety regulations, and assume responsibility for work-related accidents and illnesses.

 

10.              Should these violations remain uncorrected 30 days after the commission’s recommendations have been made public, to request the convening of an Evaluation Committee of Experts (ECE), as per NAALC article 23 for the enforcement of Mexico’s health and safety regulations.  After receipt of the ECE report, and if the recommendations for corrective actions have not been implemented within 30 days, to request the U.S. [Secretary of Labor]for ministerial consultations with regard to the continued pattern of failure by the Mexican government to enforce its labor laws and health and safety regulations at Custom Trim/Breed Mexicana and Auto Trim as per NAALC article 28.

 

11.              Finally, if the matter has not been successfully resolved by the aforementioned ministerial consultations, that the U.S. NAO request the Council to constitute an arbitral panel in order to determine the appropriate actions to be taken in view of the continued failure by the Mexican government to enforce its labor laws and health and safety regulations, including pursuant to Annex 39 the assessment of monetary sanctions.[7]


3. U.S. NAO Review

Submission No. 2000-01 was accepted for review on September 1, 2000. The review was deemed appropriate as it raised issues related to labor law matters in Mexico and because a review would further the objectives of the NAALC. The decision to review was not intended to indicate any determination as to the validity or accuracy of the allegations contained in the submission.

In conducting its review, the U.S. NAO considered information from the submitters, workers, Breed Technologies’ management, the Government of Mexico, and representatives from three unions in the Matamoros area that represent Breed Technologies’ workers, as well as testimony received at a public hearing.  The U.S. NAO also visited Breed Technologies’ facilities to observe general working conditions, meet with management and workers, and view documents related to inspections, training, and other safety and health issues at the facilities.  Finally, technical experts provided the U.S. NAO with assistance in the review of the submission. 

The focus of the review was to gather information to assist the U.S. NAO to better understand and publicly report on the issues raised in the submission concerning occupational safety and health conditions and workers’ compensation. 


3.1 Information from Submitters

The U.S. NAO engaged in meetings, telephone conversations, and written correspondence with the submitters in order to obtain additional information.  The submission included four appendices containing petitions sent to STPS, IMSS, and SSA; worker affidavits, interviews and IMSS documents; reports on Mexican maquiladora safety and health conditions; and Material Safety Data Sheets (MSDSs) for chemicals in use at the facilities.[8]  The submitters also supplied the U.S. NAO with copies of press reports and a video concerning the collapse of a section of the roof at Auto Trim in  December 1992.[9] In addition, the submitters provided written comments on the documents filed with the U.S. NAO by Breed Technologies in a letter dated February 23, 2001.[10]

3.2 Information from Mexican NAO

The U.S. NAO sent two two sets of questions relating to the issues raised in the submission to the Mexican NAO, dated October 10, 2000 and February 5, 2001.[11]   The Government of Mexico responded to the first set of questions by letter dated February 14, 2001 and received on February 27, 2001.[12]   The response discussed the institutional roles and obligations of relevant agencies in the application of labor laws, regulations and procedures in the area of safety and health and workers’ compensation. Specifically, the response described the respective roles of management and public officials in monitoring workplace hazards; policies and programs to promote worker training and the reduction of workplace injuries and accidents; and administrative procedures to be followed by management, joint safety and health committees, and medical staff in response to work-related injuries and the reporting of accidents. The response also discussed a series of inspections carried out at Auto Trim and Custom Trim/Breed Mexicana over a period of years, as well as the findings and actions taken in each case. As of the date of this report, the U.S. NAO has not received a response to the second set of questions.

3.3 Information from Breed Technologies

The U.S. NAO engaged in telephone conversations and written correspondence with Breed Technologies in order to obtain information related to the issues raised in the submission.  On November 8, 2000, the U.S. NAO sent the company a series of questions, to which Breed responded on December 11, 2000.  The U.S. NAO received a written response to its inquiries, supplemented by a wide variety of documents including copies of STPS inspection reports, records of worker training, monitoring studies, and photographs.[13]  Breed legal staff also issued the U.S. NAO an invitation to visit the plants, meet with management and workers, and review additional documents.[14]  A delegation composed of representatives from the U.S. NAO, the U.S. Embassy in Mexico City, the U.S. Occupational Safety and Health Administration (OSHA), and the National Institute for Occupational Safety and Health (NIOSH)[15] visited Breed Technologies’ facilities in Matamoros and Valle Hermoso January 22-24, 2001.

3.4 Information from Unions

The U.S. NAO sent a series of questions to the Mexican NAO with a request that they be forwarded to three unions representing Breed Technologies’ workers in the Matamoros area: SJOIIM, the CTM affiliate that holds the bargaining contract at Auto Trim; SIMVH, the CTM affiliate that holds the collective bargaining contract at Custom Trim/Breed Mexicana; and the Industrial Union of Maquiladora Plant Workers and Assemblers of Matamoros and its Municipality (Sindicato Industrial de Trabajadores de Plantas Maquiladoras y Ensambladoras de Matamoros y su Municipio) (hereinafter SITPME), a CTM affiliate that holds the bargaining contract at a third Breed Technologies plant (Custom Trim de Ramírez).[16]  The unions did not provide written responses to the U.S. NAO’s inquiries.  However, during the site visit, the U.S. delegation had the opportunity to meet with representatives from these unions.  Representatives of SIMVH provided the U.S. delegation with information concerning inspections at Custom Trim/Breed Mexicana by STPS and IMSS.  Members of SITPME described working conditions at Custom Trim de Ramírez and provided the delegation with copies of the union’s collective bargaining agreement and information on additional union activities.[17]  SJOIIM representatives gave the delegation information about working conditions at Auto Trim and about the role of the union in service of its members at the facility, and showed the delegation copies of correspondence from 1995 between union leaders and STPS in regard to worker concerns about health and safety conditions at the plant.

3.5 Information from Public Hearing

As part of the review process, the U.S. NAO conducted a public hearing in San Antonio, Texas, on December 12, 2000.  Notice of the hearing was published in the Federal Register on November 8, 2000.[18]  Notice of the hearing also was provided to Breed Technologies, whose representatives attended the hearing but did not provide testimony, the Mexican NAO, and unions that represent Breed Technologies’ workers in the Matamoros area.

Five experts testified at the hearing.  Linda Delp of the Labor Occupational Safety and Health Program, University of California at Los Angeles, provided an overview of the plants’ production process and its impacts on workers’ health and safety.  Garrett Brown, a certified industrial hygienist with California state OSHA and the coordinator of the Maquiladora Health and Safety Support Network (MHSSN), and Dr. Francisco Mercado, a professor at the Mexican National Autonomous University (UNAM), coordinator for the Center for Union Research and Assessment (CILAS), and Deputy Director of Health and Safety in the Workplace for the Mexico City government, testified regarding the use of chemicals in the workplace.  In addition, Mr. Brown and Dr. Mercado provided the U.S. NAO with relevant journal articles on occupational safety and health, material safety data sheets, and copies of applicable Mexican laws.  Lida Orta, an ergonomist at the Health and Safety Department of the International United Auto Workers (UAW), testified on ergonomics issues and provided the U.S. NAO with an ergonomics video.[19]  Alfonso Otero, a Mexican attorney, testified on Mexican law with a focus on workers’ compensation. 

Twelve former workers of Auto Trim and Custom Trim/Breed Mexicana testified at the hearing.  Matias Pecero, Veronica Lopez, Pedro Lopez Morales, and Isabel Morales testified on the production process and its impacts; Joaquin Gonzalez, Bruno Mantagna Lopez, and Ezequiel Tinajero testified in regard to chemical hazards; Consuelo Silva and Beatriz Reyna Vasquez testified on ergonomics issues; and Toribio Resendez, Elsa Alamillo, and Isabel Morales testified on workers’ compensation issues.  A representative of a local worker rights organization known as Pastoral Juvenil Obrera) (hereinafter PJO), Manuel Mondragon, also provided testimony and gave the U.S. NAO a videotape of television news stories pertaining to Auto Trim.[20]

3.6 Information from Site Visit

A team from the U.S. NAO, the U.S. Embassy in Mexico City, OSHA, and NIOSH visited Matamoros and Valle Hermoso January 22-24, 2001.  At the invitation of Breed Technologies, the delegation visited the Auto Trim and Custom Trim de Ramírez facilities.[21] During these visits, the delegation spoke with management, plant safety and health committee representatives, and company doctors; reviewed company documents; conducted walk-throughs; and spoke with workers on the plant floor.  The delegation also attended a meeting with Breed management at the Breed Mexicana 1 facility in Valle Hermoso.  After visiting the plants, the delegation attended meetings with SJOIIM (which holds the bargaining contract at Auto Trim); SIMVH, (which holds the collective bargaining contract at Custom Trim/Breed Mexicana); and SITPME (which holds the bargaining contract at Custom Trim de Ramírez).  The delegation was provided written documentation[22] during these meetings related to union programs and services for members at the respective facilities.  The delegation also was informed about the unions’ general monitoring role related to occupational safety and health in local plants.  During the visit, the delegation also engaged in a meeting with submitters on January 23, 2001.

3.7 Information from Experts

The U.S. NAO also sought information and views from technical experts on the occupational safety and health issues raised in the submission.  Experts from OSHA and NIOSH participated in the site visit and provided the U.S. NAO with their observations.[23]

4. North American Agreement on Labor Cooperation (NAALC) Obligations

Articles 1, 3, 4, 5, and 7 of the NAALC are relevant to this submission.  Article 1 of the NAALC contains objectives of the signatory Parties and Articles 3, 4, 5, and 7 contain obligations to which the Parties are committed.

Article 1(a) calls for the improvement of working conditions and living standards in the three countries.  Article 1(b) calls for the promotion, to the maximum extent possible, of the labor principles set out in Annex 1.  Principle 9 of Annex 1 commits the parties to “prescribing and implementing standards to minimize the causes of occupational injuries and illnesses” and Principle 10 requires the establishment of a system of compensation in cases of occupational injuries and illnesses.  Article 1(f) seeks to “promote compliance with, and effective enforcement by each Party of, its labor law.”  Article 1(g) requires the Parties to “foster transparency in the administration of labor law.”

Article 3(1) calls for each Party to “promote compliance with and effectively enforce its labor law through appropriate government action,” such as:

(b) monitoring compliance and investigating suspected violations, including through on-site inspections; (c) seeking assurance of voluntary compliance; (d) requiring record keeping and reporting; (e) encouraging the establishment of worker-management committees to address labor regulation of the workplace; . . . and (g) initiating, in a timely manner, proceedings to seek appropriate sanctions or remedies for violation of its labor law.

Article 3(2) commits each Party to require that due consideration be given to any request by an employer, employee, their representatives, or other interested parties, for an investigation of an alleged violation of the Party’s labor law.

Article 4(1) calls on each Party to ensure that persons have appropriate access to administrative and labor tribunals.  Article 4(2) ensures that such persons may have recourse to, as appropriate, procedures by which rights arising under: “(a) [a Party’s] labor law, including in respect of occupational safety and health . . . and (b) collective agreements, can be enforced.”

Article 5 spells out the procedural guarantees to which the signatories of the NAALC are committed.  Article 5(1)(d) commits the Parties to provide that legal proceedings “are not unnecessarily complicated and do not entail unreasonable charges or time limits or unwarranted delays.”  Article 5(2)(a) calls on Parties to provide that decisions on cases are written and preferably state the reasons on which they are based. 

Article 7 states that “[e]ach Party shall promote public awareness of its labor law, including by: (a) ensuring that public information is available related to its . . . law and enforcement and compliance procedures; and (b) promoting public education regarding its labor law.”

5. Mexican Law

5.1 Mexican Constitution

Various articles of the Mexican Constitution provide authority for the labor and health laws applicable to the instant submission.[24]  Article 4 provides for the basic right to the protection of an individual’s health.   Article 123 sets out the basic principles that underlie Mexican labor law.  Section XV of Article 123 requires employers to observe safety and health regulations at their companies and to make efforts to prevent workplace accidents and illnesses. Section XXXI.A of Article 123 states that the Federal government shall have exclusive jurisdiction in applying Mexican labor law to the automotive industry, including auto parts.  Article 123, Section XV also calls for the inclusion of sanctions in the laws for occupational safety and health violations. 

With regard to workers’ compensation, Article 123.A, Section XIV of the Mexican constitution obligates employers to indemnify employees who suffer work-related accidents.  Article 123.B, Section XI specifically states that work-related accidents and illnesses are covered by Social Security.

5.2 Federal Labor Law

Mexican labor law in the private sector is codified as the Federal Labor Law (LFT).  The law primarily is enforced by the Secretariat of Labor and Social Welfare (STPS).  The following LFT articles are relevant to the issues discussed in the instant submission.

5.2.1 Occupational Safety and Health

5.2.1.1 General Occupational Safety and Health Standards

Article 132, Section XVI obligates employers “to equip the factories, workshops, offices and other places in which the work is to be performed in accordance with the principles of safety and health to prevent work accidents and losses to the workers, as well as to adopt the necessary measures to assure that contaminants do not exceed the maximums permitted in the regulations and instructions issued by the competent authorities.”[25]  The Article goes on to give the authorities power to demand changes in workplaces failing these standards, stating that “for these purposes, installations must be modified as set forth by the proper authorities, if they do not meet the norms.”

5.2.1.2 Employee Training

Article 132, Section XV states that employers have an obligation to provide training to workers.

Article 153.A reiterates the fact that each worker has a right to training, and Article 153.F states that one of the purposes of training is to prevent work accidents. Moreover, Article 153.M requires that collective bargaining contracts at workplaces spell out this training requirement. 

5.2.1.3 Joint Safety and Health Committees

Article 509 provides that “[s]afety and health committees consisting of an equal number of representatives of the workers and the employer shall be established as found necessary in every enterprise or establishment, to investigate the causes of accidents and diseases, proposing preventive measures and enabling compliance therewith."  Article 510 states that the committees have to operate during work hours and cannot be paid.

5.2.1.4 Workplace Inspections: Obligations and Procedures

Pursuant to Article 527 workplace inspections in the automobile industry are carried out by the Federal Inspectorate of Labor (Dirección General de Inspección Federal del Trabajo) of the STPS and supported by the respective state governments.

Article 511 lays out the general duties of labor inspectors, which are:

I.                    To ensure compliance with the laws and regulations respecting the prevention of employment hazards and the protection of the workers’ life and limb;

 

II.                 To report in writing any failure to comply with the above which may come to their knowledge; and

 

III.               To collaborate with the workers and the employer in publicizing and making generally known the rules respecting accident prevention and health.

Article 540 lays out the functions of the inspection authorities. They are:

I.                    To ensure fulfillment of the labor norms;

 

II.                 To provide technical information and advise workers and employers as to the most effective manner of fulfilling the labor norms;

 

III.               To report to authority any failure to observe, and violations of, the labor norms it discovers in enterprises and establishments;

 

IV.              To make such studies and collect such data as may be required by the authorities and those which it seems necessary to achieve harmony in the relations between workers and employers;

 

V.                 Such other duties as may be assigned to it by law.

Article 541 lays out the specific responsibilities of labor inspectors.  It states that inspectors shall have the following powers:

I.                    To ensure that the labor norms are observed, in particular those prescribing the rights and obligations of workers and employers, those concerning the prevention of employment injuries, safety and health;

 

II.                 To inspect enterprises and establishments during the hours of work (day or night) on producing identification;

 

III.               To put questions to workers and employers, in the presence or absence of witnesses, on any matter connected with the application of the labor norms;

 

IV.              To require the production of any books, registers or other documents required to be kept by the labor norms;

 

V.                 To suggest that any nonobservance of the employment conditions be corrected;

 

VI.              To suggest that any duly ascertained defects in plans and methods of work be put right if they constitute a violation of the labor norms or a danger to the workers’ safety or health, and the adoption of immediate measures in the case of any imminent danger;

 

VII.            To examine the substances and materials used in enterprises and establishments in the case of dangerous work;

 

VIII.         Any other power and duties assigned to them by law.

Article 542 lays out the obligations of labor inspectors. The obligations include:

I.                    To display their credentials to workers and employers;

 

II.                 To inspect enterprises periodically;

 

III.               To carry out special tours of inspection whenever required to do so by their superiors or whenever they receive reports of nonobservance of the labor norms;

 

IV.              To draw up a report of each inspection they make, consulting the workers and the employer, reporting any nonfulfillment or violation of the labor norms, to give a copy of such report to the parties consulted and to forward the report to the appropriate authority.

Article 547 states that inspectors will be held liable for failing to carry out legally mandated inspections, giving false information in their reports, for violating a provision of Article 544 (which deals with conflicts of interest), or if they receive any bribe or gift from workers or employers.

5.2.1.5 Regulatory Powers and Sanctions

Article 512 establishes that measures to prevent workplace injuries and to insure that work is performed under safe conditions shall be based on LFT regulations. Article 512.D states:

Employers must make the modifications that the labor authorities order for the purpose of adjusting their establishment, installations or equipment to the provisions of this Law, of its regulations or of the instructions based on them issued by the competent authorities. If they do not make the modifications within the period of time granted to do so, the Ministry of Labor and Social Welfare shall fine the employer who fails to do so, providing a higher fine if he does not comply within the new period granted.

 

If the irregularity persists after the abovementioned fines have been imposed, the Ministry, taking into account the nature of the modifications ordered and the extent of the risk, may partially or totally close the work center until the respective obligation has been fulfilled, after hearing the opinion of the corresponding Mixed Committee of Safety and Health, without prejudice to the Ministry’s own adoption of pertinent measures to bring about the employer’s compliance with that obligation.

 

If the Ministry of Labor decides to partially or totally close the work center, it must notify the employer and the representatives from the trade union, three working days in advance, in writing. If the workers are not unionized, the notice shall be sent to their representative on the Mixed Committee of Safety and Health.

5.2.1.6 Penalties

Article 992 establishes that monetary penalties for violations of labor rules committed by employers or workers shall be based on the daily amount of the general minimum wage in force in the place and at the time in which the violation was committed.

Article 994, Section V states that the penalties will be 15 to 315 times the general minimum wage in the case of the employer who fails to observe the safety and health rules in equipping his establishments or measures set forth in the laws to prevent work accidents. The fine shall be doubled if the irregularity is not corrected within the time period specified.

5.2.1.7 Reporting of Violations of Labor Laws

Article 1003 of the LFT establishes which parties may make complaints of violations of labor law.  The article states: “Any worker, employer, trade union, federation or confederation of employers or workers may report violations of the labor norms to the authorities.”  When STPS receives a petition, the agency makes a determination on a case by case basis as to whether to conduct an inspection.  The following issues are considered in the decision: whether safety and health form the substance of the complaint; the background and compliance history of the company; and the state of labor management relations at the facility.[26]

5.2.2 Workers’ Compensation

Article 132, Section XVII places responsibility on an employer to institute policies that will prevent workplace illnesses and injuries.  It also requires an employer to “notify the competent authorities at once of every accident occurring.”  Specifically, Article 504, Section V requires employers to provide notification of injuries within 72 hours. Article 504, Section V also specifies that “(a) name and address of the enterprise; (b) name and address of worker, as well as his post or category and the amount of his salary; (c) place and hour of accident, with a concise expression of facts; (d) name and address of the persons who witnessed the accident; and (e) place in which medical attention was rendered or will be rendered” must be provided to the appropriate authority.[27]

The responsibility of employers to maintain a stock of first aid medications and medical supplies is codified in Article 132, Section XVII.  It states that employers must “keep at all times a stock of such medicaments and therapeutic materials as are necessary in the opinion of the competent authorities, so that efficient first aid may be given in due time.”  Article 504 requires: “If there are more than 100 workers in a given enterprise, an infirmary with appropriate staff must be established.  Enterprises employing more than 300 workers must have a sick bay staffed with adequate medical and auxiliary personnel.”

Articles 472-515 address occupational injuries.  Of particular relevance to this submission is the scope of occupational injuries defined in Articles 472-476, and the classifications of disabilities and their appropriate compensation set out in Articles 477-480 and Articles 491-496, respectively.  Temporary disability is defined in Article 478 as “loss of faculties or skill rendering a person either partially or totally unable to perform his work for a certain time.”  Permanent partial disability is defined in Article 479 as “the loss of a person’s work faculties or skills.”  Permanent total disability is defined in Article 480 as “the loss of a person’s work faculties or skills rendering him incapable of working for the rest of his life.” 

The rights of employees who suffer work-related injuries or illnesses are set out in Article 487.  Included in these rights are medical and surgical attendance, rehabilitation, and compensation.  Article 490 provides that if it is proven that “inexcusable negligence” occurred on the part of an employer, an employee’s compensation may be increased by up to 25%.  The article considers inexcusable negligence demonstrated:

I.        if he [the employer] fails to observe the laws and regulations for the prevention of employment injuries;

 

II.     if, in spite of the fact that previous accidents have occurred, he has failed to adopt adequate measures to avoid a repetition thereof;

 

III.   if he fails to adopt the preventive measures recommended by the joint committees established by workers and employers or by the labor authorities;

 

IV.  if there are similar circumstances of the same degree of seriousness as those referred to in the above items.

Article 512.E delineates the relationship between IMSS and STPS.  The Article states that STPS is responsible for coordinating with IMSS to develop campaigns and programs that aim to prevent workplace injuries and illnesses.

5.3 Federal Regulation on Safety, Health and the Workplace (RFSH)

Enacted in 1997, the RFSH establishes the rules and procedures for the enforcement of safety and health standards. [28]  The RFSH replaced the General Regulation on Safety and Health (RGSH) in the Workplace, which entered into force in 1978.< [29]  Because the submitters claim that Mexican occupational safety and health laws were not enforced at Auto Trim and Custom Trim/Breed Mexicana both before and after 1997, both federal regulations will be discussed in this report.

As was the case with the RGSH, the RFSH is intended for application throughout Mexico and has as its purpose the establishment of measures necessary for the prevention of workplace accidents and illnesses.  The objective of both regulations is to ensure that work takes place under conditions of safety and health that are appropriate for workers and in accordance with the LFT and international treaties ratified by Mexico (See Article 1 of both regulations). Many of the provisions of the regulations are similar, but the language used in the RGSH tends to emphasize STPS responsibilities, while the RFSH places greater emphasis on the responsibilities of employers and employees.

5.3.1 Occupational Safety and Health

5.3.1.1. Employee Training

Article 189 of the RGSH stated that the labor authorities must carry out training programs to inform employers and employees of the importance of adopting sound safety and health practices.  In addition, workers were to be provided training based on studies of workplace hazards carried out under the supervision of STPS (See Articles 218-219).  Articles 15 and 135 of the RFSH place the burden of training on employers, by requiring them to inform workers of the risks associated with their work activities, as well as train them on prevention and control measures. Articles 136 and 137 of the RFSH require that the Joint Safety and Health Committees and employers monitor such trainings.

Article 213 of the RGSH and Article 17, Section VII of the RFSH specifically call for worker training in the prevention of risks and attendance to emergencies.  The RFSH, however, mandates additional training efforts. Article 17, Section VI and Articles 130 - 134 of the RFSH provide that companies must draw up safety and health programs and manuals, which must be continually reevaluated.  Article 134 requires employers to publish and execute these programs and train and qualify workers in their application.  Article 138 of the RFSH states that “[t]he personnel responsible for . . . as well as involved in the handling, transport or storage of hazardous substances and chemicals should have specialized training.”  Article 141 reiterates that employers must inform workers of the workplace safety and sanitation program, as well as train and qualify them in its execution.

5.3.1.2 Health and Safety Studies

Article 190 of the RGSH stated that the labor authorities will promote studies and technical investigations to determine workplace hazards, and that the employers and workers must cooperate with authorities in the development of such studies.  Articles 217-218 likewise referred to the development of health and safety risk prevention programs in workplaces based on risk assessments and other types of studies.

Article 17, Section III of the RFSH requires companies to undertake studies and risk assessments in matters relating to occupational safety and health and to apply appropriate control measures. Section IV states that employers must identify and maintain within allowable levels the environmental conditions at the workplace.  Employers must present such evidence to the authorities when requested. Section IX requires employers to present opinions issued by private inspection units with regard to the safety and health standards of the employer’s facilities.  Article 28 requires that risk assessments with regard to fire and explosion hazards be conducted and used to design fire safety programs. Article 128 mandates employers to prepare occupational risk statistics each year and notify workers and the safety and health commission at the workplace. These statistics must be presented to STPS upon request.

Articles 11 and 163 of the RFSH gives private labs and engineering firms the power to conduct studies and risk assessments in workplaces.  These parties, known as “verification units,” must be accredited by STPS through a process established in the Federal Law on Measurements and Standards (LFMN). [30]

5.3.1.3 Inspections

Articles 236 through 252 of the RGSH laid out STPS’s right to inspect workplaces and specified how such inspections were to be conducted.  Article 5 of the RFSH gives STPS the responsibility to promote compliance with the regulations to “safety and sanitation commissions, safety officers and supervisors and company physicians.”  Article 11 states that verification units, such as testing laboratories and certification agencies, may verify compliance with workplace standards.  Article 17, Section VIII, requires employers to permit the inspection and monitoring activities that STPS or other labor authorities undertake.  Articles 161 and 163 make clear that STPS retains the authority and responsibility to conduct inspections.

5.3.1.4 Hazardous Materials

The RGSH laid out specific requirements with regard to the prevention of and emergency preparedness for fires in the workplace.[31]

Articles 122 through 134 of the RGSH and Articles 54 through 75 of the RFSH discuss requirements for the handling, transport and storage of hazardous chemical materials, including: proper work facilities for the handling and storage of such materials; communication of risk and training in proper handling and corrective measures (including the dissemination of material safety data sheets [Article 63]) to those workers who carry out these activities; risk assessments; and the use and labeling of appropriate storage containers.  Article 84 specifically states that safety and health programs must include measures for the reduction of exposure to pollutants, including hazardous chemicals.

5.3.1.5 Ventilation

Article 154 of the RGSH and Article 99 of the RFSH require proper ventilation at work sites.  At locations where operations are capable of affecting worker health, employers are responsible for monitoring and providing adequate ventilation, air quality and volume.

Article 100 of the 1997 law asserts that employers must set up maintenance schedules and inspection programs for their artificial ventilation systems.

5.3.1.6 Personal Protective Equipment (PPE)

Articles 159 and 160 of the RGSH and Article 101 of the RFSH mandate employers to provide workers with appropriate PPE when necessary.  Articles 162-174 of the former law described the specific types of PPE that workers must be given depending on the tasks they must perform; these specifics are now incorporated into the relevant NOMs.

Article 180 of the former regulation and Article 103 of the new regulation state that, depending on the type of work, employers are required to establish showers for worker use and provide dressing rooms and lockers.

Article 161 of the RGSH gave the Joint Safety and Health Committee the responsibility for ensuring the proper use of PPE. Article 140 of the RFSH requires that employers train workers in the use, maintenance and replacement of PPE.

5.3.1.7 Ergonomics

Reference to ergonomics in the RGSH was made in Articles 183 and 184, which required employers to supply workers with ergonomic chairs.

Article 2, Section V of the RFSH defines ergonomics as

the suitability of the workplace, equipment, machinery and tools to the worker, in accordance with their physical and psychological features, in order to prevent occupational accidents and illnesses and to optimize the latter’s activity with the least amount of effort, as well as to prevent fatigue and human error.

Article 102 of the RFSH states: “The Secretariat shall encourage employers to take ergonomic aspects into consideration in the facilities, machinery, equipment, or tools of the workplace, with a view to preventing occupational accidents and illnesses.”

5.3.1.8 Joint Safety and Health Committees

Article 193 of the RGSH stated that STPS should promote the establishment of Joint Safety and Health Committees at the workplace.  Article 17, Section XIII of the RFSH states that employers must facilitate the establishment of the mixed commissions at the workplace.

Articles 193 through 212 of the RGSH and Articles 123 through 126 of the RFSH lay out the regulations that apply to the safety and health committees.  Both the former and current laws require that committees be established within 30 days after the startup of operations of the facility and that they be composed of an equal number of worker and employer representatives. Articles 203 and 204 of the RGSH state that the joint committees were responsible for promoting the training of workers regarding workplace safety and hygiene and that committees had to ensure that workers were familiar with workplace regulations.  Both the RGSH and RFSH state that these committees are responsible for investigating causes of occupational accidents and illnesses, monitoring compliance, describing violations in the necessary paperwork, and proposing preventive measures.

5.3.2 Workers’ Compensation

5.3.2.1 Medical Services

The focus of the medical services provisions of the RGSH was on preventive services (Articles 213 through 216).  Similarly, several sections of the RFSH address preventative and curative medical services provided to employees.  Article 17 Section X denotes an employer’s obligation to provide preventative medical services while Article 143 states that medical services may be offered either internally or externally of the place of production.  Article 83 of the RFSH states that employers must perform medical exams on workers exposed to hazardous materials.  Article 148 states that an employer is responsible for providing first aid medication and materials. The requirement that physicians be fully autonomous to issue opinions regarding the degree and cause of an employee’s disability is addressed in Article 145.  Further, Article 146 requires physicians to inform the employer of an employee’s ability or inability to work.  Article 150 of the RFSH requires STPS, employers and workers to promote the implementation of occupational safety and health preventive services, in accordance with the characteristics of the work performed.  Article 151 of the RFSH states that this preventive service shall involve activities such as the investigation of workplace conditions and the causes of workplace accidents and illnesses, and the development of occupational safety and health programs. Article 152 of the RFSH states the such services may be provided by an external agent or by the company itself.

5.3.2.2 Notification of occupational accidents

Article 17 and 127 codify an employer’s responsibility to notify STPS of occupational accidents in writing, while article 129 requires STPS to maintain statistics on such accidents.  Article 149 mandates that an employer must submit the medical records to STPS when requested.  Finally, the Sixth Transitory Provisions established in RFSH state that STPS shall coordinate with IMSS in assisting employers with their compliance in submitting accident notices.

5.4 Official Mexican Standards (NOMs-STPS)

Articles 3 and 5 of the RGSH and Articles 3-13 of the RFSH address the development and enforcement of standards known as NOMs on the full range of occupational safety and health issues.  The NOMs cover matters ranging from specific hazards to technical specifications for protective and monitoring equipment and analytical methods.  Under the authority granted by Article 40 of the 1976 Federal Public Administration Act (Ley Orgánica de la Administración Pública Federal) (hereinafter LOAPF), STPS is in charge of enforcing the LFT and developing and enforcing the appropriate NOMs in the area of occupational health and safety.[32]

Since 1997, a number of NOMs have been revised and consolidated. Because the submitters allege a failure to enforce certain NOMs both before and after these revisions, current as well as former NOMs will be discussed in this report.

5.4.1 Workplace Ventilation

NOM-001-STPS-1999: Health and Safety Conditions in Buildings, Premises, Installations and Areas in Work Centers, sets forth the minimum requirements for workplace ventilation systems.[33] The NOM requires that ventilation systems be started at least 15 minutes before employees work in a particular area and that employers establish a systems maintenance program with a log of repairs.  In addition, the Reference Guide contained in the NOM requires employers to abide by the standards of “comfort ventilation” in interior work spaces, which set limits for humidity, temperature, and air velocity.  NOM-010-STPS-1999, Section 9.2 requires the implementation of feasible engineering controls, including the use of local exhaust ventilation, when air-monitoring results demonstrate overexposures to hazardous chemicals.

5.4.2 Fire Security

NOM-002-STPS-2000: Safety Conditions- Prevention, Protection and Fire Fighting in the Workplace, establishes minimum fire safety requirements.  Requirements include the installation of fire extinguishers and labeling of flammable substances.  In addition, the NOM requires employers to train workers in fire prevention and combating fires.

5.4.3 Use of Chemicals

NOM 005-STPS-1998: Health and Safety Conditions in Workplaces for the Handling, Transport, and Storage of Dangerous Chemicals, condenses the requirements of four separate NOMs previously in effect in Mexico: NOM 009-STPS-1994: Relative to the Safety and Health Conditions for the Storage, Transport, and Handling of Corrosives, Irritants, and Toxics in Workplaces;[34] NOM 008-STPS 1993: Relative to the Safety and Health Conditions for the Production, Storage and Handling of Explosives in the Workplace; NOM 018-STPS 1993: Relative to the Requirements and Characteristics of Showers, Lockers and Changing Room Services in Workplaces; and NOM-020-STPS-1993: Relative to Medicaments, Curative Materials and First Aid Personnel in Workplaces. [35] 

Both the former NOMs and the current NOM 005 mandate employers to gather information by conducting risk assessments and to inform workers of the health and safety risks to which they may be exposed.  NOM 005 also states that employers are obligated to develop a specific program on the use and storage of dangerous chemicals.  Under this program, employers must draw up plans for clean up and emergencies and maintain up to date Material Safety Data Sheets (MSDSs), manuals and information on PPE and exposure limits.  Employers must also ensure that chemicals are stored properly and have a maintenance program for equipment that is used to handle such chemicals.

Both the former NOMs and NOM 005 state that employers are required, based on the results of the risk assessment, to provide sufficient PPE, changing rooms, showers, and/or laundry services.   Employers are also required to create a first aid manual, provide sufficient first aid in case of emergencies, and train personnel in the provision of first aid. NOM 005 requires employers to conduct entrance, periodic and special medical exams on workers exposed to dangerous chemicals.

NOM-010-STPS-1999: Health and Safety Measures in Workplaces that handle, transport, process or store chemical substances capable of contaminating the workplace environment, establishes permissible exposure limits (PELs) to chemicals in the workplace. The NOM directs employers to study contaminant concentration levels based on methods laid out in the standard and to keep such information current.  It requires employers to inform workers of the risks to which they are exposed and to train them in the safe use of possible contaminants. [36]

NOM-018-STPS-2000: System for the Identification and Communication of Hazards and Risks from Dangerous Chemical Substances in the Workplace, establishes requirements for the labeling of hazardous chemicals and communication of risks to workers that use such chemicals.  Employers must identify hazardous substances used in the workplace, obtain MSDS on such chemicals; and communicate hazard information to employees through the use of labels, MSDSs, and annual training.  NOM 018 supersedes NOM-114-STPS-1994.

5.4.4 Personal Protective Equipment (PPE)

NOM-017-STPS-1994: Relative to Personal Protective Equipment for Workers in the Workplace, requires employers to study workplace processes to determine the need for PPE, and, in cases where it is necessary, to provide proper PPE and training in its use.  NOM-116-STPS-1994 and NOM-030-STPS-1993 set specific requirements for respirators, while NOM-113-STPS-1994 and NOM-115-STPS-1994 lay out regulations in regard to safety shoes and hard hats, respectively.

5.4.5 Joint Safety and Health Committees

Per NOM -019-STPS-1993: Constitution and Function of the Safety and Health Committees in Workplaces, employers are required to support the committees by providing necessary training to committee members, giving proper attention to the committee’s recommendations, and providing the committee with the training it requests regarding work processes.  Employers must give training to the workforce that is proposed by the committee and make information about committee participants available to employees. Committees are responsible for establishing and carrying out an annual program of inspections, producing reports on these inspections which the employer must keep for 12 months, and investigating the causes of accidents and illnesses and proposing corrections.

5.4.6 Notice of Accidents and Illnesses

NOM-021-STPS-1994: Relative to the Requirements and Characteristics of the Reports on Worksite Hazards in order to form Statistics, requires employers to give notice of workplace accidents to STPS, the Federal Labor Delegate, the Inspector of Labor, the Permanent Conciliation Board or the Conciliation and Arbitration Board, and the joint safety and health committee within 72 hours of the accident or of detection in the case of illness.  This standard also mandates companies to keep a register of workplace accidents and illnesses.

5.4.7 Ergonomics

NOM-004-STPS-1999: Protection Systems and Safety Devices for Machinery and Equipment used in Workplaces, requires employers to conduct an assessment to determine the risks involved in operating machinery in the workplace. Based on this assessment, the employer is mandated to develop safety and health programs and provide training to workers. Related standards include NOM-006-STPS-1993: Relative to Safety and Health Conditions for Loading and Unloading Materials in Workplaces; NOM-009-STPS-1999: Suspended Access Equipment—Installation, Operation and Maintenance, Safety Conditions; NOM-011-STPS-1993: Relative to Safety and Health Conditions in Workplaces in which Noise is Generated; NOM-015-STPS-1993: Relative to Occupational Exposure to High or Low Temperature Conditions in Workplaces; NOM-023-STPS-1993: Relative to Safety Components and Devices For Hoisting Equipment in Workplaces; NOM-024-STPS-1993: Relative to Safety and Health Conditions in Workplaces in which Vibrations Are Generated; and NOM-025-STPS-1999: Lighting Conditions in Workplaces.

5.5 General Health Law (LGS)

5.5.1 Occupational Safety and Health

Mexican health law in the private sector is codified as the General Health Law (LGS). [37]  The LGS regulates the right to health of the individual as provided for in Article 4 of the Mexican Constitution.

5.5.1.1 Applicability

Article 3, Section XIV of the LGS establishes that the law covers occupational health.  Article 128 mandates that all work activities must be carried out respecting rules laid out by SSA. Article 132 of the LGS indicates that any type of workplace, including subsidiaries, is covered under the LGS.

5.5.1.2 Authority of SSA

Article 39 Section XVII of the LOAPF mandates that SSA implement measures to enforce the protection of health in the workplace. Articles 116, 118, 119, 120, and 129 of the LGS give federal government authorities the power to protect environmental health and to work with the states to protect health and provide health services in certain areas including instances where toxic substances and hazardous materials are used. Article 130 declares that SSA should coordinate with labor authorities at state and federal level to undertake studies and develop programs to prevent occupational accidents and injuries. Article 194 gives SSA the authority to engage in sanitary control, such as training, monitoring, and taking samples. Further, SSA has the authority to apply sanctions when necessary. Articles 393 and 394 establish that SSA and the states have authority to apply the LGS and its regulations, but that if other entities discover problems they should inform SSA.

5.5.1.3 Use of Chemicals

Article 278 defines dangerous and toxic substances and mandates SSA to publish a list in the Official Daily of the Federation (Diario Oficial de la Federación) of such substances.  Article 281 requires labels for toxic and dangerous materials, which must identify the materials and give handling and emergency instructions in Spanish.  Articles 298, 299 and 375 state that companies that import toxic substances must get sanitary authorizations (permits per Articles 368 and 369) from SSA.

5.5.1.4 Enforcement

The LGS is enforced through a variety of methods including regular and special verification visits (Articles 396 and 398). These visits have as their objective to verify that potentially toxic substances used in the workplace do not adversely affect worker health, and of investigations of workplace accidents.[38]  Article 401 mandates that during such a visit, the employer must appoint two witnesses who must accompany the inspector during the inspection, the inspector records problems found in writing, and the employer must be given an opportunity to make written comments about the inspector’s report. Articles 401 BIS 1 and 401 BIS 2 describe procedures for taking samples if necessary.

Article 400 obligates employers to provide free access to the workplace during an inspection.  Articles 416-425 lay out the types of sanctions that can be assessed against an employer who violates the LGS.  These sanctions include fines and arrests, suspension of work, or partial or complete closure of a facility.  Some of the violations for which an establishment may be closed include operating without authorization, committing wanton violations of LGS, failure to remedy problems, and the existence of grave health and safety problems.

5.5.2 Workers’ Compensation

The relevance of the LGS to workers’ compensation is established in Articles 2 and 3 of this law.  Article 2 affirms the right to the full use and enjoyment of one’s health while Article 3 makes clear that Mexican workers are covered by the LGS.

Article 130 references several agencies with which SSA should coordinate, including IMSS, in an effort to prevent and control occupational illnesses and injuries.

5.6 Official Mexican Standards-SSA (NOMs-SSA)

NOM-047-SSA1-1993: Establishing the Maximum Permissible Exposure Limits for Organic Solvents for Workers Exposed to those Chemicals,[39] describes the kinds of testing that must be carried out in workplaces where benzene, toluene and xylene are used.[40]  Part 6 of the NOM requires that workers be tested if biological monitoring (urine/blood) shows levels of dangerous substances above the PELs.  It also states that if environmental monitoring shows levels above PELs, such a situation must be corrected. Part 7 of the standard requires employers to conduct entrance medical exams and to exclude possible employees with medical histories that show a particular sensitivity to the effects of toluene and xylene; to conduct annual medical exams; and to perform biological monitoring on employees working in areas where toluene and xylene are used.

NOM-048-SSA1-1993: Establishing the Standardized Method for Risk Evaluation at the Workplace due to environmental agents, suggests methods to avoid personal exposure to dangerous substances such as the use of less dangerous substances in place of more toxic ones, and the use of PPE.

NOM-056-SSA1-1993: Sanitary Requirements for PPE, lays out the requirements for use of PPE in the workplace.  The NOM states that PPE must be in good condition and must fit the needs of the worker employing it.  It also requires workers to receive adequate instruction in the use of PPE.

5.7 Social Security Law (LSS)

IMSS is a decentralized agency that, along with local government agencies, is responsible for administering Mexico’s Social Security Law (Ley de Seguro Social) (hereinafter LSS).[41]  The objectives of the social security programs include “affording health security, medical assistance, support for economic subsistence, and social services for the well being of individuals and families, and a pension.”[42]  Social insurance in Mexico is divided into two categories: compulsory and voluntary.  For the purpose of this report, the compulsory plan, which deals with workers’ compensation for work-related illnesses and injuries and covers all “individuals who enter into an employer-employee relationship of any kind, whether permanent or casual,” is most relevant.[43]

Article 42 of the LSS states that a “[w]ork-related injury means a bodily injury or impairment of physical function, whether sustained immediately or manifesting itself subsequently . . . .”  Article 43 defines an occupational illness as “a pathological condition arising out of or in the course of employment or attributable to the environment in which the employee is required to work.  All diseases classified in the Federal Labor Act as occupational diseases are work-related diseases.”

Article 44 guarantees an employee’s right to appeal any IMSS determination as to the nature of an accident or injury.  The Article also provides for certain employee benefits while an employee pursues such an appeal. Article 294 requires that the appeal must follow the regulations of the respective District Advisory Board, which is responsible for making a determination on the appeal.

Article 55 of the LSS affirms four categories of work-related disabilities and defers to the LFT for the appropriate definitions.  The four categories are temporary disability, permanent partial disability, permanent total disability, and death.[44]  Article 56 of the LSS names four types of in-kind assistance available to employees who incur a work-related illness or injury.  These include “I. Medical and surgical care and medicines; II. Hospital care; III. Prosthetic and orthopedic appliances; and IV. Rehabilitation services.”

Article 58 outlines the monetary benefits an employee may claim through the compulsory social insurance plan. The Article provides:

The pension shall be calculated using the disability valuation table in the Federal Labor Act, using as a basis the pension entitlement for permanent total disability.  The percentage of incapacity will be set between the maximum and minimum indicated in the said table, taking into account the worker’s age, severity of disability, and whether the disability precludes absolutely the performance of his occupation but not the performance of another occupation, or whether his performance skills have simply diminished for purposes of his occupation or for the performance of gainful activity comparable to his previous occupation.[45]

Article 62 provides that an employee who sustains a work-related injury or illness and later suffers a relapse on account of the same illness or injury is entitled to “100% of his contributory earnings as of the date of injury or onset of the illness.”

Inspections are referenced in several sections of the LSS.