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1. INTRODUCTION: A REGIONAL LABOUR DIMENSION IN AN INTERGOVERNMENTAL SETTING
As set out in Article 1 Treaty of Asuncion (‘TA’), Mercosur, which originally prioritised its economic dimension, has pursued the unification of customs and, eventually, the establishment of the ‘Southern Common Market’ as its main goal. Unsurprisingly, there was not a regional labour dimension as such, and the founding members only a ‘safeguard clause’ in Annex IV of the TA to protect employment, which could be affected by the intra-Mercosur importations (Article 3(b)). In the same vein, the preamble to the TA stated that ‘the expansion of their domestic markets, through integration, is a vital prerequisite for accelerating their processes of economic development with social justice’ (emphasis added).
The silence of the founding treaty led the Southern Cone Trade Union Coordinating Body (‘CCSCS’ in Spanish) to push for the creation of a regional labour dimension. This resulted in the adoption of the 1991 Declaration of Montevideo, which recognized that social and labour issues had to be addressed at the Mercosur level to ensure real equality in working conditions across Member States Furthermore, the Working Subgroup 10, consisting of representatives from governments, unions and employers’ organizations, proposed the ratification of 37 International Labour Organization (‘ILO’) conventions. However, the then four Member States agreed to ratify only 12 ILO conventions.
Given the swift development of the economic dimension of Mercosur, trade unions raised the alarm around the possible negative effects of regional integration and, consequently, proposed the adoption of a regional social charter. Although such instrument was not enacted, in 1998, the Heads of State and the Council of the Common Market (‘CCM’) - the highest political institution of Mercosur - adopted the 1998-Declaration, which constitutes the backbone of the Mercosur labour dimension.
The Socio-Labour Declaration (‘Declaration’) is the most important fundamental labour rights legal instrument within Mercosur and its Member States. It was originally adopted to protect workers from the potential negative impact of the economic integration. Furthermore, it was conceived and as a barrier to the 1990s neoliberal policies adopted by national governments following the Washington Consensus. According to the original Article 24, the Declaration had to be revisited after two years of its adoption. However, it took seventeen years to be reformed. The 2015 revision has not only been positive from a quantitative perspective - the Declaration has gone from 25 to 34 provisions - but also from a qualitative point of view - labour rights have been strengthened.
The recurrent use of the European Union (‘EU’) as a main source of inspiration has been one of the biggest obstacles of the development of Mercosur. It has been put forward that Mercosur should create some supranational bodies and should draw inspiration from, inter alia, the Court of Justice of the EU. This would help the South American bloc to overcome the frequent stalemates in which it has been found itself. The EU approach was conceived as the only possible way to achieve successful integration. It was ‘believed that integration could bring peace and economic development to other continents as it did in Europe’. However, the EU approach is not necessarily feasible in Latin America.
Despite the positive aspects of supranationalism, Mercosur’s institutional architecture, as developed by the TA and the Protocol of Ouro Preto (‘POP’), has embraced intergovernmentalism. A regional autonomous legal order that has primacy over national law has been recognized by the Permanent Review Court (‘PRC’) and by prestigious scholars. Nonetheless, the intergovernmental nature of Mercosur has undermined the effectiveness of Mercosur law. Its primacy over national law, its direct applicability and direct effect depend upon each Member States legal orders. This has been further heightened by the Member States’ constitutional asymmetries that consider regional law differently within their legal systems. This imperfect legal order has been a major hurdle in both the adoption and the enforcement of the Declaration by both regional and national actors.
Traditionally, despite the importance of the EU as a model, Mercosur has not pursued the path of supranationalism. There does not seem to be any changes that may make someone think that regional bodies, particularly the judicial ones, will be vested with supranational powers. Therefore, it is necessary to find alternative ways through which Mercosur can flourish in an intergovernmental framework. The existence of multiple overlapping regional organisations, which has sometimes been considered a negative feature of Latin American integration, has pushed Latin American countries to cooperate through intergovernmental rather than supranational organizations, where the intensity of integration is higher. Employment is one of the areas in which Mercosur Member States aim to cooperate, albeit not exclusively via Mercosur. The Declaration constitutes a paradigmatic example of how regional legal norms can be enforced within Member States legal orders in the current intergovernmental setting.
Mercosur has adopted an intergovernmental legal order in which regional bodies have reduced powers and Member States remain the main legislator and enforcement actors. Consequently, the effectiveness and impact of the Declaration depends largely on national bodies. This article begins by analysing the legal nature and the content of the Declaration. It then examines the ‘limited’ role of regional bodies and explores some feasible reforms to the current dispute resolution system. Furthermore, it explores the importance of national judicial activism to use the Declaration as a key legal instrument to protect workers’ rights. It concludes by identifying some possible ways forward to strengthen the Declaration as the regional bedrock that protects workers’ fundamental rights.
2. A REGIONAL FUNDAMENTAL LABOUR RIGHTS FRAMEWORK
2.1. Decent Work as the Beacon of Mercosur Legislation
Both the original and revised Declaration have adopted a tripartite structure, which includes an axiological, a normative, and an enforcement dimension. The preamble to the Declaration constitutes the main foundation of the axiological dimension, which sets out that the regional bloc requires not only an economic dimension, but also a regional social sphere. The Declaration intends to ensure the protection of workers’ rights, which may be endangered by the integration of the Member States’ economies and the liberalization of their markets. Moreover, since Member States are founding members of the ILO and have ratified several ILO conventions, it is not a surprise that the Declaration embraces the 1998 ILO Declaration on Fundamental Principles and Rights at Work as one of the main guiding principles. The axiological dimension has been strengthened by the 2015 revision, which underlined the importance of the 1944 Philadelphia Declaration and has reasserted the importance of the ILO notion of ‘Decent Work’, which is enshrined in Article 2 of the 2015-Declaration.
The normative dimension of the Declaration consists of individual and collective labour rights, and public policy provisions. The individual labour rights dimension was reinforced by the 2015 revision, which strengthened the content protected in the 1998-Declaration, such as the principle of non-discrimination and equal opportunities (Article 4), equal treatment between men and women and disabled workers (Articles 5 and 6), equal treatment between migrant and frontier workers and national workers (Article 7), elimination of forced labour (Article 8), and elimination of child and adolescent labour (Article 9). Further, the 2015 revision introduced four provisions related to working time: a maximum workday of eight hours, the right to daily and weekly rest time, and the right to paid annual leave (Articles 11 to 13). It also adopted a provision related to the right to a minimum wage (Article 14) and the protection against unfair dismissal (Article 15). Moreover, relying upon ILO Conventions 155 and 167, the 2015-Declaration introduced an eleven-paragraph right to health and safety at work, which is essential in a post-pandemic world (Article 25).
Collective rights were reinforced, too. The 2015 revision substantially improved and emphasized the importance of freedom of association by imposing two duties upon Member States: a ‘negative duty’ whereby they cannot intervene in the creation and management of trade unions; and a ‘positive duty’ whereby Member States commit to ensure the right to create and freely manage trade unions as well as to recognize and respect the role of trade union representatives (Article 16). In addition, the 2015 revision imposed an obligation on Member States to promote the exercise of collective bargaining across different levels of the public sector (Article 17). Drawing upon ILO Convention 144 on Tripartite Consultation, social dialogue was recognised as a key element of industrial relations to bring together governments, employers, and workers to develop, implement, and promote international labour standards (Article 20). The only minor drawback of the 2015 revision was the regulation of the right to strike. Whilst the original Article 11 guaranteed the right to strike to ‘every’ worker, the current Article 18 set out that only ‘workers and trade unions’ can enjoy this right. Leaving out the term ‘every’ has the potential to weaken the position of professions such as the armed forces and the police, whose right to strike is usually contested.
As per ‘public policy’ provisions, the 2015 revision emphasized the importance of ‘employment’ to achieve sustainable development (Articles 21 and 22). Furthermore, the 2015-Declaration reiterated the need to have strong labour inspectorates to ensure the effectiveness of workers’ rights (Article 26), and the need to protect social security rights (Article 27).
The Declaration has gone from merely ‘copying’ the rights enshrined in ILO instruments and national constitutions to the adoption of substantive norms such as those related to child labour, working time, health and safety in the workplace. It has also strengthened the protection of freedom of association, and has reinforced the importance of social dialogue as a mechanism to develop labour policies. This reform has resulted in the development of a common regional framework that Member States must respect.
2.2. The Declaration as an Atypical Act
Mercosur is an intergovernmental organisation, which relies almost entirely upon Member States. Unsurprisingly, this institutional architecture has largely had an impact upon the effectiveness of Mercosur norms, and, more specifically, upon the legal nature of the Declaration. In the aftermath of the Declaration of Montevideo, trade unions urged Member States to adopt a regional social charter that would enshrine fundamental labour.They argued for the adoption of a legally binding protocol of the TA that would oppose the implementation of national reforms that sought to make labour markets regulations more flexible. However, in 1998, the Argentine, Brazilian and Uruguayan companies’ representatives staunchly refused the adoption of the Declaration as a protocol. In the same vein, Member States’ governments expressed their reluctance to adopt a legally binding instrument and favoured the political declaration avenue. Their pressure took effect and the Common Market Group (‘CMG’) - the Mercosur executive branch - decided that the Declaration would not be a protocol and would not be subjected to the Mercosur dispute settlement system. Instead, the Declaration was adopted via a presidential declaration signed by all the four Member States’ Presidents.
The exclusion of the Declaration from the POP - which defines the sources of Mercosur law (Article 41) - would, in principle, mean that the Declaration is not a legally binding source of Mercosur law. Nevertheless, prestigious scholars, trade unions, and several national judges have considered that the Declaration legally binding. The most widespread approach argues that the Declaration is an international treaty because it recognizes fundamental rights that are already protected by the most important international human rights instruments, in particular ILO conventions, which, in turn, in some cases these instruments belong to the Member States’ constitutional rules (bloques de constitucionalidad). Their jus cogens nature makes them directly applicable within the Mercosur and Member States’ legal orders. Therefore, the Declaration is a legally binding instrument that must be respected and if it were not complied with, that would engage Member States’ international responsibility.
Notwithstanding the appeal of the international law argument, this article considers that it is necessary to analyse the legal nature of the Declaration from a Mercosur law perspective. It is worth noting that regional integration organizations do not have a numerum clausus sources of law. Although the Declaration was adopted via a presidential declaration, given its objectives, its content, and its impact upon regional and national legal orders, the Declaration is more than a ‘simple’ political declaration. It constitutes a legally binding atypical act.
The preamble of the Declaration states that Mercosur aims to achieve economic integration with social justice. To do so, it relies upon the 1998 ILO Declaration on Fundamental Principles and Rights and the fact that Member States have ratified several ILO conventions. This has been further strengthened by the 2015 revision, which reiterates that the Declaration, which is the backbone of the Mercosur labour dimension, aims to further develop a regional social dimension.
Furthermore, the content of the Declaration evidences that it is more than a simple political proclamation. As previously developed, this instrument enshrines a wide range of fundamental labour rights protected in human rights and international law instruments, which in many cases have been granted constitutional status in the Member States’ legal orders. The 2015 reform has incorporated a particular provision, which stipulates ‘[n]otwithstanding the previous subsection, all individuals and legal entities, in order to be part of the projects financed by MERCOSUR funds, shall comply with the content of the rights established in this Declaration’ (Article 31(4)). However minor, this constitutes another step forward in the strengthening of the Declaration.
Moreover, the concrete and tangible impact of the Declaration upon Mercosur and Member States’ legal orders makes an important case in favour of its legally binding nature. On the one hand, the Declaration has been the basis upon which the most important regional labour plans have been designed and adopted. On the other hand, the Declaration expressly states that Member States commit to respect the rights recognised therein (Article 28). Although the national executive and legislative powers have played a limited role in implementing the Declaration, national judges have extensively referred to it in their judgments to protect labour rights. Moreover, the recent recognition of the Declaration, in principle, as part of the general principles of Mercosur law by the Mercosur Administrative-Labour Court confirms that it does constitute a legally binding atypical act.
3. INTERGOVERNMENTALISM AND THE LIMITED ENFORCEMENT OF THE MERCOSUR DECLARATION
3.1. The socio-labour commission as a social dialogue mechanism
Following in the footsteps of the ILO supervision bodies, and relying upon Article 20 of the Declaration the CMG created the Socio-Labour Commission (‘SLC’) as a tripartite auxiliary body, which consists of governments’ representatives, trade unions and employers. The SLC has two main functions: firstly, it examines any consultation related to the implementation of the Declaration, and, secondly, it monitors and enforces the rights recognized in the Declaration.
The latter function could be an encouraging sign that the Declaration is a legally binding instrument that can be enforced by a regional body. However, the rather weak institutionalisation of Mercosur has meant that its regional bodies lack decisional authority, enforcement capacities, and an ability to represent the regional common interest beyond and over Member States. The implementation of the Declaration has not been an exception. As a result of the business groups’ pressure, the SLC has not been vested with any enforcement powers in the event of the violation of the Declaration. This flawed structure constitutes a major weakness in the Declaration enforcement framework and explains, to a large extent, the limited role played by the SLC.
The creation of an independent supranational institution was put forward to ensure the effectiveness of the Declaration. It is true that the 2015-Declaration and the CMG Resolution 22/18, which repealed and replaced the CMG Resolution 12/00 that had set up the SLC, made less ambitious changes. It is true that the 2015-Declaration and the CMG Resolution 22/18, which repealed and replaced the CMG Resolution 12/00 that had set up the SLC, made less ambitious changes. However, this reform strengthened the SLC’s role as a social dialogue mechanism. It can design action plans and recommendation projects to foster compliance with the Declaration (Articles 3(f) and 10). Furthermore, it can examine trade unions, employers’ associations, and governments’ requests regarding the scope of the Declaration (Articles 3(g) and 17). Though these opinions are not legally binding, they may impact upon the national authorities’ interpretation of the Declaration. Furthermore, the SLC examines national reports (Memorias) - drawn up by Member States with the contribution of trade unions and employers’ organizations - and suggests possible reforms to national legal orders (Article 29). To conclude, it can be pointed out that the SLC has been one of the most active regional bodies fighting against the Covid-19 crisis by adopting declarations and lobbying to regulate teleworking at the regional level in future reforms.
3.2. The Ambivalent Role of Mercosur Courts
The main judicial body in Mercosur is the PRC whose primary function is to guarantee a homogeneous interpretation of Mercosur law. Unlike its European counterpart, though, the PRC has had a modest activity and remains currently constrained due to its intergovernmental nature and its limited enforcement powers (Article 31-32 PO). Moreover, the lack of direct locus standi in favour of individuals to make claims in the event of breach of Mercosur law, and the need to go through the national section of the CMG and potentially through the CMG to challenge Mercosur law constitutes another major institutional hurdle.
Furthermore, Article 25 of the 1998-Declaration and today Article 31(3) of the 2015-Declaration expressly sets out that “States Parties highlight that this Declaration, and its follow-up mechanism shall not be invoked or used for ends other than those established, particularly safeguarding its application to commercial, economic and financial matters.” Therefore, the lack of compliance with the Declaration cannot trigger, for instance, the suspension of tariff advantages. It is not surprising that no labour matters have been heard by the PRC.
In contrast to this, the Mercosur Administrative-Labour Court, which hears cases related to Secretariat of Mercosur’s and other regional bodies’ employees has delivered four judgments, which have referred to the Declaration. In its judgments 1 and 2, which dealt with different employments issues between the Secretariat of Mercosur and its employees, the Administrative-Labour Court considered that other than the specific regime for Mercosur’s employees, the Declaration, amongst other instruments, was applicable. Under a new legislative framework (CCM/Decision 07/07), this approach was followed in its third judgment. Given the incompleteness of the regime of Mercosur’s employees, the Administrative-Labour Court based relied upon the general principles of regional and international law, specifically the ILO Declaration on the Fundamental Principles and Rights at Work as well as the Declaration to deliver its decision.
There seems to be an interesting change in the Administrative-Labour Court approach in its judgment 4 where, unlike previous decisions, the regional tribunal changed the wording in the ‘applicable law’ section and seems to explicitly consider the Declaration as part of the Mercosur’s general principles of law. If this interpretation were to be upheld in future judgments, that would reinforce the notion of the Declaration as a legally binding instrument. This remains to be seen.
3.3. A Stronger Regional Judicial Body: The Way Forward
The role of the judiciary is essential for the enforcement of regional norms and the fostering of regional integration projects. The EU, characterized by ‘political integration by jurisprudence’, has recognised a major role to the Court of Justice of the European Union. Their active role has been crucial to ensure the unity of the regional legal order and its primacy over domestic legal systems. This is even more important within embryonic regional organisations. Nevertheless, given the intergovernmental nature of Mercosur, their dispute resolution systems remain in hands of their Member States. Therefore, regional and national courts face significant challenges to ensure the enforcement of Mercosur norms.
Since the transition from intergovernmentalism to supranationalism seems implausible, it is necessary to consider reforms that can be implemented within the current institutional and legal framework. In this regard, locus standi restrictions, which today only allow Member States to bring actions before the PRC, should be eased. Individuals, be it natural or legal persons, need to navigate an extremely complicated procedure to challenge any action or omission committed by any of the Member States. Individuals are not entitled to directly lodge a claim for arbitration. They do not have either direct access to Mercosur tribunals. It is true that individuals may have an indirect access through advisory opinions requests made before national courts. Furthermore, individuals can rely upon Mercosur legal instruments before national courts to challenge domestic legislation - as explained in the following section.
Despite some the internal differences, it is possible to enhance the Mercosur dispute resolution system by expanding the ‘access’ dimension. There are two possible avenues to bring about this reform: firstly, as put forward in the bill on the Creation of a Permanent Court of Justice for Mercosur (Project No 02/10), which was supported by the PARLASUR in 2017, authorising individuals as well as intermediary bodies, such as trade unions and business organization, to lodge claims against Member States due to failure to comply with Mercosur law, as well as to request advisory opinions would constitute a step forward in the strengthening of the regional legal order. It is worth noting that this ‘liberal’ approach vis-à-vis the individual’s locus standi is shared by regional courts beyond Europe. Secondly, as far as the Socio-Labour Declaration is concerned, it would be possible to include it within the material scope of the PRC. This would need a procedural reform regarding locus standi, which would authorise workers, employers, trade unions and business organisations to challenge State Parties if they would not comply with the Socio-Labour Declaration.
4. NATIONAL JUDICIAL ACTIVISM AND THE EFFECTIVENESS DECLARATION
The intergovernmental nature of Mercosur means that Member States, which have delegated no sovereign powers to any regional entity, are in charge of the enactment and enforcement of regional norms. Member States must, therefore, ensure that Mercosur law is implemented and complied with within their legal orders. Article 1 TA mandates that Member States have a legal obligation to harmonize their legislation in order to achieve Mercosur goals. Furthermore, Article 38 POP sets out that the parties commit themselves to adopt the necessary measures to ensure compliance with Mercosur law.
Whilst national executive and legislative powers, traditionally reluctant to confer powers upon regional organizations, have paid little attention to the Declaration, the activism of the Member States judiciary has been pivotal to make sure that the Declaration did not turn into dead letter. National courts’ case law has overwhelmingly considered the Declaration as a justiciable instrument. Although they were initially hesitant, national judges have consistently referred to the Declaration, along with other national, regional and international instruments, in the legal reasoning of countless judicial decisions. This has undoubtedly rendered the Declaration one of the most important Mercosur legal instruments.
In Argentina, provincial supreme courts and several employment appeal courts have relied upon the Declaration,viewing it not only as a vital regional integration instrument alongside ILO conventions, which are hierarchically above ordinary law, but also as an integral component of the bloque de constitucionalidad as a source of subjective rights. In the same vein, the Argentine Supreme Court has drawn upon the Declaration alongside with other constitutional norms and human rights international instruments in the ratio decidendi of several key cases to protect workers’ rights. Aquino represents a pivotal, marking the first instance in which this court incorporated the Declaration in its recital 12.In a landmark judgment that deemed the Occupational Safety and Health Act (Ley de Riesgos del Trabajo) unconstitutional, the Supreme Court, after citing a myriad of international and human rights instruments and the Declaration, highlighted that attaining the objective of economic development with social justice was one of its main goals. In the same vein, in the Álvarez judgment, another landmark case where the applicants had challenged again the constitutionality of the Occupational Safety and Health Act (Ley de Riesgos de Trabajo), the Argentine Supreme Court reiterated the importance of the Declaration, along with other human rights and international instruments, as the legal basis to protect equal treatment in employment and occupation. Asociación de Trabajadores del Estado constitutes another major case where Argentine Supreme Court declared the unconstitutionality of the domestic trade union system relying upon multiple international human rights instruments, ILO instruments as well as Article 14 of the 1998-Declaration. References to the Declaration have been further included by the Buenos Aires Employment Courts of Appeal even in the aftermath of the 2015 revision, particularly in cases related to equality and non-discrimination in the workplace.
In the same vein, the Uruguayan Supreme Court has considered the Declaration as part of the ‘constitutional bloc’ of the Uruguayan legal system. This approach has been consistently followed by Uruguayan employment appeal courts, which, relying upon, inter alia, the Declaration as part of the constitutional bloc, have considered labour rights, in particular decent work, as a key element to protect workers’ dignity. Furthermore, drawing upon Article 4 of the Declaration, it has been decided that the Uruguayan judiciary power has a legal obligation to respect the principle of non-discrimination when delivering judgments in matters related to employment. Consequently, the Declaration cannot only be relied upon against other individuals, such as employers, but also against the State in a broader sense. Uruguayan courts have also consistently drawn inspiration form the Declaration to protect the right to freedom of association, which is unsurprising given the fact that the Uruguayan 2006 Freedom of Association Act (Law 17940, 2 January 2006) refers to Article 9 of the 1998-Declaration.
Similarly, Paraguayan courts have used the Declaration as a legally binding instrument. Prior to any judgments explicitly referencing the Declaration, Myriam Peña, a former judge of the Paraguayan Supreme Court, maintained that the Declaration was legally binding. However, there seems to be an interesting evolution in a recent case heard by the Paraguayan Supreme Court, where Article 4 of the 1998-Declaration was invoked. Relying upon this provision, which protects the principle of equality and non-discrimination in the workplace, this court declared the unconstitutionality of a 2014 reform to the Aeronautical Code, which forced companies to give preference to Paraguayan pilots.
Relying upon this provision, which protects the principle of equality and non-discrimination in the workplace, this court declared the unconstitutionality of a 2014 reform to the Aeronautical Code, which forced companies to give preference to Paraguayan pilots.
Traditionally, Brazilian courts have been much more reluctant to rely upon Mercosur norms. In 2019, as far as the authors of the present article are aware, for the first time, the Supreme Labour Court (Tribunal Superior do Trabalho) relied upon Article 4 of the Declaration to underline the importance of the principle of equality and non-discrimination in the workplace within the Brazilian legal order. It referred to this provision along with other instruments of constitutional nature. This seemed to be in line with the approach of the TST president at the time the decision was made who considered that the Declaration could constitute a constitutional norm in light of the 2004 constitutional reform regarding human rights. This marks significant progress, especially considering that prior to 2019, the Supreme Labour Court had only made incidental mentions of the Declaration in four instances, albeit without integrating it into the core reasoning of those judgments. However, in a more recent development, relying upon an extensive array of international instruments and Articles 2 and 4 of the Declaration, a regional labour court, Tribunal Regional do Trabalho da 4ª Região, concluded that a conduct which involved harassment in the workplace violated the worker’s dignity which is protected by constitutional norms.
In another case, where an employer was held liable for failing to guarantee safe and healthy working conditions, the same court concluded that there was a ‘direct’ violation of the Declaration, along with other international and regional human rights instruments as well as ILO Conventions, which enshrine the worker’s right to a health and safety working environment. Interestingly, the judgment concluded by stating that the judiciary had a duty to ensure the effectiveness of human rights in employment relationships.
All in all, the Declaration, whose legal nature has been discussed since its adoption, has been consistently relied upon by first instance and appeal labour courts, as well as national supreme courts to protect workers’ rights across Mercosur Member States. This constitutes a strong indication that the Declaration is a legally binding instrument, and the judiciary has played a significant role in bringing this instrument to life.
5. THE FUTURE OF THE SOCIO-LABOUR DECLARATION
5.1. A Supplement to Domestic Legal Orders
The Declaration has been a watershed in the recognition and protection of workers’ rights in regional trade blocs. Despite the Mercosur institutional hurdles, inherent to an intergovernmental organization, both regional, but mainly national courts have transformed the Declaration into a living instrument upon which workers and citizens can rely. Despite this rather positive evolution, a crucial question has arisen is: how should Mercosur move forward to further ensure the effectiveness of the Declaration? Given the current context of Mercosur, it seems unlikely that there will be any major institutional changes. Consequently, the role of national actors - executive and legislative powers, and particularly the judiciary remains crucial to further use the Declaration as a bulwark to protect fundamental workers’ rights. It has been argued that there are two areas of domestic labour legislation that could be reformed in light of the 2015 revision, namely: working time and freedom of association.
Working time regulation in Argentina and Uruguay would be at odds with the current content of the Declaration. The current Argentine legislation enshrines a maximum of a 48-hour work week and authorizes a 9-hour workday without overtime pay. These provisions, in principle, seem to be incompatible with the Declaration which sets an 8-hour workday as a maximum (Article 11). In the same vein, the Uruguayan Domestic Service Act and the Rural Workers Act do not guarantee a minimum daily rest. Article 12 of the Declaration expressly recognizes that workers have the right to a minimum daily rest. Although the Declaration does not establish a precise limit, relying upon the ILO and other international instruments, which recognise a nine-hour daily rest, national actors, be it judges or legislators, could challenge and/or reform the current legislation.
On the other hand, inspired largely by the ILO Conventions 87 and 98, the Declaration considers freedom of association, collective bargaining and the right to take collective action as essential elements of industrial relations within Mercosur (Articles 16, 17 and 18 respectively). Furthermore, the preamble to the Declaration refers to the 1998 ILO Declaration on Fundamental Principles and Rights at Work, which considers freedom of association and the right of collective bargaining as fundamental principles. It has been argued that national actors could rely on these provisions to challenge at least some features of the current Argentine and Brazilian trade unions regime. Both countries have adopted a system of ‘unicidad/unicidade sindical’ whereby only one trade union can be created in a specific sector in the same territory.
In principle, this conflicts with the principle of freedom of association because it gives excessive powers to one specific trade union, which would be against a ‘democratic’ trade union system. In addition, the State enjoys too much power in regulating and registering trade unions’ activities. An illustrative example of this is the legal challenge brought by one of the major Argentine trade unions in the public sector, relying upon multiple international human rights instruments, ILO instruments as well as Article 14 of the 1998-Declaration, the Argentine Supreme Court in the case Asociación de Trabajadores del Estado declared the unconstitutionality of the trade union regime. No major legal reform has not taken place in the aftermath of this judgment. However, it is possible to see that the Declaration offers an avenue to national actors, be they executive, legislative or judicial, to reform and strengthen national labour laws.
5.2. A New Revision is Overdue
Article 32 of the Declaration sets out that the 2015 version shall be revisited after 6 years. This should have been done by 2021. However, given that a major crisis took place in this period, the Covid-19 pandemic, it is understandable that such a revision has not taken place yet.
There are two key elements that must be considered in a future revision: on the one hand, it has been argued that the Declaration should become a protocol to the TA. This would put an end to the debate regarding its legal nature and would allow both regional and national actors to confidently rely upon the Declaration to effectively protect workers’ rights and, eventually, to reform domestic legal orders. On the other hand, although the 2015 revision enriched quantitively and qualitatively the content of the Declaration, there are new recent phenomena that have had an impact and are still shaping the current Mercosur labour markets, namely: platform work and climate change.
Whilst the significant development of the platform economy, specifically in the sector of ride-hailing and food delivery services has given precarious groups, such as migrants or informal workers, a chance to have access to the labour market, the conditions upon which they perform their jobs are in many cases unsafe and unhealthy in direct violation to the notion of decent work. Furthermore, the increasing impact of climate change upon Mercosur Member States constitutes another area which requires particular attention from the national and regional authorities particularly when it comes to adoption of green employment and just transition policies.
The Declaration has proven over time to be an effective legal instrument despite the intergovernmental nature of Mercosur. Both regional and national actors must keep using it creatively to ensure the protection of workers’ rights across the region, particularly, in these unsettling times.
