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 Act83 and the Rural Workers Act84 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 legislation85. 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 (86). 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 (87). 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.
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83 Law 18065, 05 December 2006, Uruguay.
84 Law 18441, 24 December 2008, Uruguay.
85 CASTELLO, Alejandro. Op.cit. p. 647.
86 Law 23551, 23 March 1988, Argentina, and 1988 Brazilian Constitution, Article 8, II. GODINHO DELGADO, Mauricio. “Constitución de la República, Sistema Laboral Brasileño y Derecho Colectivo del Trabajo”. Derecho Laboral. Revista de Doctrina, Jurisprudencia e Informaciones Sociales. 2015, vol. 57, no. 259, p. 347-374; VALDOVINOS, Oscar. “La reforma de la Ley de Asociaciones Sindicales: una deuda impaga en un contexto mutante, pleno de desafíos”. Revista de Derecho Laboral. 2014, no. 1, p.227-268.
87 ATE s/ acción de inconstitucionalidad, 18 June 2013.
