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. 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.
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. 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. 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. 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.
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.
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. 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.
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.
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. The Government of Mexico responded to the first set of
questions by letter dated February 14, 2001 and received on February 27, 2001. 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. Breed legal staff also issued the U.S. NAO
an invitation to visit the plants, meet with management and workers, and review
additional documents. 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)
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). 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. 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. 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. 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.
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.
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
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.
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. 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.” 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.
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.
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. The RFSH replaced the General Regulation on
Safety and Health (RGSH) in the Workplace, which entered into force in 1978.< 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).
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.
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.
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.
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;
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.
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.
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).
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. 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,
describes the kinds of testing that must be carried out in workplaces where
benzene, toluene and xylene are used. 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). 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.” 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.
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. 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.
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. | 
