By César F. Rosado Marzán
Chicago Daily Law Bulletin
September 13, 2010 Volume: 156 Issue: 178
The 33 miners trapped in Chile, a sliver of country in South America’s southern Pacific edge, have caught the world’s attention. A story first about a tragedy and then about a miracle when the 33 miners were found alive, shook the world.
What has not been reported by the international news organizations with the same intensity is that this tragedy should not have happened at all.
As recently as July 9, 2010, only weeks before the accident, the government of Chile, Latin America’s economic “jaguar,” knew that the mine was collapsing and created a serious hazard to the health and safety of its workers.
A labor inspector of Chile’s Labor Directorate, the government agency in charge of enforcing all of the country’s labor and employment laws — including health and safety laws — had found serious structural deficiencies in the mine that resulted in labor law violations. The inspector reported these deficiencies after a number of partial collapses in the mine had caused grave injuries to some workers. Its official report stated that that the mine had violated Chilean labor law by:
[n]ot fortifying the ceiling, having noted that there was no fortification, reason why a ceiling sheet fell, not evaluating a risk situation … . Such fact constitutes noncompliance with the general conditions of safety in the workplace and implies not taking the necessary measures to protect life, health and the general physical integrity of the workers [translation by author].
However, this crass violation of the country’s labor laws, which had led to the amputation of some workers’ limbs, was punished with merely three million Chilean pesos, or about $6,000. Under the law, the fine could have been much higher.
More troubling was that even though the Chilean Labor Directorate has authority to suspend work in a workplace where the health and safety of the workers is at risk, the Labor Directorate did not order the mine to suspend work. In fact, in 2003, the Labor Directorate had closed the same mine, only to be later reopened by another government ministry, the Mining Ministry, under the guise that the mine was “safe.”
But that was then. Today, the Labor Directorate, which is under a new government administration, found new problems in the mine and essentially did nothing to fix the situation, stirring public discussions in Chile regarding workplace safety.
As a result of the public outcry, the Labor Directorate attempted to wash its hands of responsibility by stating that it did not have authority to close the mine and that the Mining Ministry should have taken on the task to suspend work. The president of Chile, through his spokesperson, echoed the same words and sacked some folks in the Mining Ministry — a symbolic gesture, at most, because that ministry has a mere 20 inspectors for the entire country, which is as long as a trek from Lisbon, Portugal, to St. Petersburg, Russia, and with hundreds of mines in its national territory.
Moreover, the government’s interpretation of Chilean law is at odds with the clear meaning of Chilean labor law and, specifically, the organic law of the Labor Directorate, which states that “Labor Inspectors can order the immediate suspension of work that in their opinion constitute imminent danger for the health or life of workers ….” Hence, on July 9, 2010, weeks before the mining accident that shook the world, the labor inspector could have ordered the suspension of work in the mine. Chilean labor law experts that I spoke with in the country agree with my opinion.
Of further interest, especially for us in the U.S., is that Chilean noncompliance with its own labor laws puts Chile in violation of the U.S.-Chile free trade agreement (FTA). Under the labor clause of the U.S.-Chile FTA, both the United States and Chile pledged to enforce their own national labor laws and not to use noncompliance of their labor laws as tools of unfair trade. If one party fails to enforce its national labor laws, the other party can attempt to compel compliance through consultation and arbitration procedures available in the FTA’s labor clause.
In my conversations with labor inspectors in Chile, I learned one simple reason why mining managers usually decide to cut corners when it comes to health and safety inside the mines. Essentially, mines make money by extracting “stuff” and more “stuff” from the rocks in shorter and shorter amounts of time. Therefore, there is a tendency to dig deeper tunnels to extract more and more “stuff” without, first, putting in place all the required safety ramparts in the mines.
Building safety structures slows the extraction processes of the “stuff” unless, of course, the mine collapses altogether — a result that some mine managers sometimes simply “forget.” Moreover, there is an incentive to cheat on health and safety compliance because, if you cheat, then you can extract more “stuff” more quickly than your competition and, therefore, you not only get richer but also more competitive — unless, again, the mine collapses altogether, and sometimes they do.
In the U.S., we should remind ourselves that Chilean mines do not compete only against other Chilean mines, but also against other world mines, including American mines. If Chilean mines are cheating on health and safety law compliance, and the American mines are in compliance with U.S. laws and regulations, then the United States has just put itself in a competitive disadvantage by freely trading with Chile.
If the labor clauses of the U.S. FTAs, such as the U.S.-Chile FTA, are to mean anything, the U.S. should start a consultation and arbitration process under the FTA. The process would serve not only the safety concerns of Chilean miners but also the economic interests of the U.S. and its workers.
Even though it may be short of another miracle if workers’ safety takes priority as a result of the FTA’s labor clause, we should get the ball rolling and see how much we can advance for workers’ rights, health, safety — and, why not, also our own, American stakes in these situations, stakes that, in our imminent, double-dip recession, seem more urgent to defend than ever.
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