Free Trade Agreement Between Canada and Costa Rica
Agreement on Labor Cooperation Between
the Government of Canada and the Government of the Republic of Costa Rica
PREAMBLE
THE GOVERNMENT OF THE REPUBLIC OF COSTA RICA AND THE
GOVERNMENT OF CANADA:
RECALLING their resolve to:
- create an expanded and secure market for the goods produced in their territories,
- create new employment opportunities and improve working conditions and living
standards in their respective territories, and
- protect, enhance and enforce basic workers' rights;
AFFIRMING their continuing respect for each other's Constitution and law;
REAFFIRMING that both countries are members of the International Labour
Organisation (ILO);
ACKNOWLEDGING that technical cooperation on labour matters ensures that in the
context of a strategy for economic and social development, economic and social policies are
mutually reinforcing components of sustainable development;
RECOGNIZING that differences exist in their respective levels of development and
sizes of their economies;
CONVINCED of the benefits to be gained from further cooperation between them on
labour matters;
HAVE AGREED as follows:
PART ONE - OBJECTIVES
ARTICLE 1
Objectives
The objectives of this Agreement are to:
(a) improve working conditions and living standards in each Party's territory;
(b) promote, to the maximum extent possible, the labour principles and rights set out in
Annexes 1 and 2;
(c) encourage cooperation to promote innovation and rising levels of productivity and
quality in each Party's territory;
(d) encourage publication and exchange of information and joint studies in order to
enhance understanding of the labour law and institutions in each Party's territory;
(e) pursue cooperative labour-related activities on the basis of mutual benefit;
(f) promote compliance with and effective enforcement by each Party of its labour
law; and
(g) foster full and open exchange of information between the Parties in regard to the
application of their labour law.
PART TWO - OBLIGATIONS
ARTICLE 2
General Commitments
Affirming full respect for each Party's Constitution and labour law and recognizing the right of
each Party to establish its own labour standards in its territory and to adopt or modify
accordingly its labour law, and set its priorities in the execution of its labour policies, each Party
shall ensure that its labour law embodies and provides protection for the labour principles and
rights set out in Annexes 1 and 2.
ARTICLE 3
Scope of the Agreement
Labour law is considered to fall within the scope of this Agreement if it is directly related to the
labour principles and rights set out in Annexes 1 and 2.
ARTICLE 4
Government Enforcement Action
1. Each Party shall, subject to Article 24, promote compliance with and effectively enforce
its labour law through appropriate government action, such as:
(a) appointing and training inspectors;
(b) monitoring compliance and investigating suspected violations; and
(c) initiating, in a timely manner, proceedings to seek appropriate sanctions or
remedies for violations of its labour law.
2. Each Party shall ensure that its competent authorities give due consideration, in
accordance with its law, to any request by an employer, employee or their representatives, or
another interested person, for an investigation of an alleged violation of the Party's labour law.
ARTICLE 5
Private Action
Each Party shall ensure that persons with a legally-recognized interest under its law have
appropriate access to administrative, quasi-judicial, and judicial tribunals for the enforcement of
rights protected by the Party's labour law.
ARTICLE 6
Procedural Guarantees
1. Each Party shall ensure that:
(a) its administrative, quasi-judicial and judicial tribunal proceedings for the
enforcement of its labour law are fair, equitable and transparent; and
(b) the tribunals that conduct or review such proceedings are impartial and independent
and do not have any substantial interest in the outcome of the matter.
2. Furthermore, each Party shall provide that:
(a) administrative, quasi-judicial and judicial tribunal proceedings for the enforcement
of its labour law comply with due process of law;
(b) any hearings in such proceedings are open to the public, except where the
administration of justice otherwise requires;
(c) the parties to such proceedings are entitled to support or defend their respective
positions and to present information or evidence;
(d) such proceedings are not unnecessarily complicated and are handled in a timely
manner;
(e) time limits for and, if applicable, any charges related to such proceedings are
reasonable;
(f) the parties to such proceedings may seek remedies to enforce their labour rights;
(g) final decisions on the merits of the case in such proceedings are:
(i) in writing and state the reasons on which the decisions are based;
(ii) made available to the parties to the proceedings in a timely manner and,
consistent with applicable law, to the public; and
(iii) based on information or evidence in respect of which the parties were
offered the opportunity to be heard; and
(h) parties to such proceedings have the right, as appropriate and in accordance with
applicable law, to seek review and, where warranted, correction of final decisions
issued in such proceedings.
ARTICLE 7
Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of
general application respecting any matter covered by this Agreement are promptly published or
otherwise made available in such a manner as to enable interested persons and the other Party
to become acquainted with them.
2. When so required by its law, each Party shall:
(a) publish in advance any such measure that it proposes to adopt; and
(b) provide interested persons a reasonable opportunity to comment on such proposed
measures.
ARTICLE 8
Public Information
Each Party shall make available public information respecting its labour law, including
information related to enforcement and compliance procedures.
PART THREE - INSTITUTIONAL MECHANISMS
ARTICLE 9
Ministerial Council
1. There shall be a Ministerial Council that comprises Ministers responsible for labour affairs
of the Parties or their designees. The Council shall meet from time to time and shall oversee the
implementation of this Agreement and review progress under it.
2. The Council may consider any matter within the scope of this Agreement and take such
other action in the exercise of its functions as the Parties may agree.
ARTICLE 10
National Points of Contact (NPC)
Each Party shall designate an office within their governmental department responsible for labour
affairs that shall serve as a point of contact with the other Party. Until a Party gives a notice of
change of NPC, its NPC is that set out in Annex 7.
ARTICLE 11
Public Communications
1. Each Party shall provide for the submission and receipt and periodically make available a
list of public communications on labour law matters that:
(a) are raised by a national of the Party or an entity that is established in the territory of
the Party;
(b) arise in the territory of the other Party; and
(c) pertain to obligations under this Agreement.
2. Each Party shall review such matters, as appropriate, in accordance with domestic
procedures.
ARTICLE 12
Cooperative Activities
1. The Parties may develop programs of cooperative activities to promote the achievement
of the objectives of this Agreement. An indicative list of areas of possible cooperation between
the Parties is set out in Annex 3 to this Agreement.
2. In carrying out the cooperative activities, the Parties may, commensurate with the
availability of resources of each Party, cooperate through:
(a) seminars, training sessions, working groups and conferences;
(b) joint research projects, including sector studies;
(c) technical assistance; and
(d) other means to which the Parties may agree.
3. The Parties shall carry out the cooperative activities with due regard for the economic,
social, cultural and legislative differences between them.
ARTICLE 13
General Consultations
1. The Parties shall at all times endeavour to agree on the interpretation and application of
this Agreement.
2. The Parties shall make every attempt, including through cooperation, consultations and
the exchange of information, to address any matter that might affect its operation.
PART FOUR - REVIEW OF EFFECTIVE ENFORCEMENT
ARTICLE 14
Ministerial Consultations
1. In the event that either Party has a concern regarding the other Party's effective
enforcement of its labour law directly related to principles and rights set out in Annex 1, that
Party may request in writing consultations with the other Party at the ministerial level. The Party
that is the object of the request shall respond in a timely manner.
2. The Party that made the request shall provide the other Party with any publicly-available
information in its possession that would allow a full examination of the matters underlying the
concern.
3. Ministerial consultations shall be concluded no later than 180 days after the request unless
both Parties agree to another date.
ARTICLE 15
Review Panel
1. A Party may request that a Review Panel be convened if the Party considers that:
(a) there is a persistent pattern of failure by the other Party to effectively enforce its
labour law directly related to principles and rights set out in Annex 1;
(b) the matter has not been satisfactorily addressed through ministerial consultations;
(c) the matter is trade-related; and
(d) the matter is covered by mutually-recognized labour law.
2. Unless otherwise agreed by the Parties, the panel shall be established and perform its
functions in a manner consistent with the provisions of this Part.
ARTICLE 16
Panelists
1. A Review Panel shall comprise three panelists.
2. Panelists shall:
(a) be chosen on the basis of expertise in labour matters or other appropriate
disciplines, objectivity, reliability and sound judgment;
(b) be independent of, and not be affiliated with or take instructions from, either Party;
and
(c) comply with a code of conduct to be established by the Parties.
3. If either Party believes that a panelist is in violation of the code of conduct, the Parties
shall consult and, if they agree, the panelist shall be removed and a new panelist shall be
selected in accordance with the procedures set out in Annex 6 that were used to select the
panelist who was removed. The time limits shall run from the date of their agreement to remove
the panelist.
4. Individuals may not serve as panelists with respect to a review in which they have, or a
person or organization with which they are affiliated has, an interest.
5. The chairperson shall not be a national of either Party.
ARTICLE 17
Panel Selection Procedures
Panelists shall be selected in accordance with the procedures set out in Annex 6.
ARTICLE 18
Rules of Procedure
The review shall be conducted in accordance with the procedures set out in Annex 6.
ARTICLE 19
Information for the Review Panel
The Review Panel may consider written submissions or any information from organisations,
institutions and persons with relevant information or expertise.
ARTICLE 20
Initial Report
1. Unless the Parties otherwise agree, the Review Panel shall base its report on the
submissions and arguments of the Parties and on any information before it pursuant to Article
19.
2. Unless the Parties otherwise agree, the panel shall, within 180 days after the last panelist
is selected, present to the Parties an initial report containing:
(a) findings of fact;
(b) its determination as to whether the matter is trade-related and covered by mutually-recognized
labour law;
(c) in the event of a positive determination under subparagraph (b), its determination as
to whether there has been a persistent pattern of failure by the Party that is the
object of the request to effectively enforce its labour law directly related to
principles and rights set out in Annex 1 or any other determination requested in the
terms of reference; and
(d) in the event the panel makes an affirmative determination under subparagraph (c),
its recommendations, if any, for addressing the matter.
3. For greater certainty, the recommendations shall take into account the existing differences
in the level of development and size of the economies of the Parties.
4. Panelists may furnish separate opinions on matters that are not the subject of unanimous
agreement.
5. Either Party may submit written comments to the panel on its initial report within 45 days
of presentation of the report.
6. After considering such written comments, the panel, on its own initiative or on the request
of either Party, may:
(a) request the views of the Parties;
(b) reconsider its report; and
(c) make any further examination that it considers appropriate.
ARTICLE 21
Final Report
1. The Review Panel shall present to the Ministers responsible for labour affairs of both
Parties a final report, including any separate opinions on matters not unanimously agreed to,
within 90 days of the presentation of the initial report, unless the Parties agree to make it
available at another date.
2. The Parties shall make the final report available to the public in the three official languages
120 days after it is transmitted to the Ministers.
ARTICLE 22
Implementation of Final Report
If, in its final report, a Review Panel determines that there has been a persistent pattern of failure
by the Party that was the object of the request to effectively enforce its labour law directly
related to the principles and rights set out in Annex 1, that Party shall make best efforts to
remedy the pattern of failure, including by responding positively to the recommendations of the
panel.
ARTICLE 23
Review of Implementation
1. On the second anniversary of the publication of the final report of the Review Panel, the
Party that made the request for the establishment of the panel may request that the panel be
reconvened to review the implementation of the recommendations. If the original panel cannot
be reconvened, the Party may request that another panel be convened in its place.
2. Where a panel has been reconvened or convened under paragraph 1, it shall determine
whether the persistent pattern of failure to effectively enforce its labour law directly related to
principles and rights set out in Annex 1 has been remedied.
3. The panel shall present to the Ministers responsible for labour affairs its follow-up report
within 90 days of being convened.
4. The Parties shall make the follow-up report available to the public in the three official
languages 120 days after it is transmitted to the Ministers.
5. If the panel determines that the Party that was the object of the request has not remedied
its persistent pattern of failure to effectively enforce its labour law directly related to principles
and rights set out in Annex 1, the Party that made the request may take reasonable and
appropriate measures, exclusive of fines or any measure affecting trade, but including the
modification of cooperative activities pursuant to Article 12, to encourage the other Party to
remedy that persistent pattern, in keeping with the panel's determinations and recommendations.
PART FIVE - GENERAL PROVISIONS
ARTICLE 24
Enforcement Principle
Nothing in this Agreement shall be construed to empower a Party's authorities to undertake
labour law enforcement activities in the territory of the other Party.
ARTICLE 25
Private Rights
Neither Party may provide for a right of action under its domestic law against the other Party on
the ground that the other Party has acted in a manner inconsistent with this Agreement.
ARTICLE 26
Security of Domestic Procedures
For greater certainty, decisions by each Party's administrative, quasi-judicial or judicial tribunals,
or pending decisions, as well as related proceedings, shall not be subject to revision or
reopened under the provisions of this Agreement.
ARTICLE 27
Protection of Information
1. A Party that receives confidential or proprietary information from the other Party shall
keep such information as confidential or proprietary as permitted by its domestic law.
2. Confidential or proprietary information provided by a Party to a Review Panel under this
Agreement shall be treated in accordance with the Model Rules of Procedure.
ARTICLE 28
Cooperation with International and Regional Organisations
The Parties may, as appropriate, draw on the expertise and resources of competent
international and regional organisations to enhance their cooperation.
ARTICLE 29
Extent of Obligations
Each Party shall ensure that all necessary measures are taken in order to give effect to the
provisions of this Agreement in its territory in accordance with Annex 4.
ARTICLE 30
Definitions
For purposes of this Agreement:
A Party has not failed to "effectively enforce its labour law" or comply with Article 4 in a
particular case where the action or inaction by agencies or officials of that Party:
(a) reflects a reasonable exercise of the agency's or the official's discretion with respect
to investigatory, prosecutorial, regulatory or compliance matters; or
(b) results from bona fide decisions to allocate resources to:
(i) enforcement in respect of other labour matters determined to have higher
priorities; or
(ii) emergency needs arising as a result of urgent temporary social or economic
priorities;
"labour law" includes jurisprudence, laws and regulations directly related to the labour
principles and rights set out in Annexes 1 and 2;
'"mutually-recognized labour law" means labour law that addresses the same general subject
matter in a manner in both Parties that provides enforceable rights, protections or standards,
although for greater certainty the law of one Party need not be substantially similar to the law of
the other Party in order to constitute a mutually-recognized labour law;
"persistent pattern" means a sustained or recurring course of action or inaction beginning
after the date of entry into force of this Agreement, and does not include a single instance or
case;
"province" means a province of Canada, and includes the Yukon Territory, the Northwest
Territories and Nunavut;
"publicly-available information" means information to which the public has a legal right
under the law of the Party;
"territory" means, for a Party, the territory of that Party as set out in Annex 5; and
"trade-related" means related to a situation in a Party involving workplaces, firms, companies
or sectors that produce goods:
(a) traded between the territories of the Parties; or
(b) that compete, in the territory of that Party, with goods produced by persons of the
other Party.
PART SIX - FINAL PROVISIONS
ARTICLE 31
Annexes
The Annexes to this Agreement constitute an integral part of the Agreement.
ARTICLE 32
Official Languages
The official languages for the purposes of this Agreement shall be English, French and Spanish.
The Parties shall, no later than one year after the entry into force of this Agreement, establish
rules and procedures regarding interpretation and translation.
ARTICLE 33
Entry into Force
This Agreement shall enter into force following an exchange of written notifications certifying the
completion of necessary legal procedures. The Parties agree on the desirability of an exchange
of such notifications by January 1, 2002.
ARTICLE 34
Amendments
1. The Parties may agree on any amendment to this Agreement.
2. When so agreed, and approved in accordance with the applicable legal procedures of
each Party, an amendment shall constitute an integral part of this Agreement.
ARTICLE 35
Termination
Either Party may terminate this Agreement by giving written notice to the other Party. Such
termination shall take effect 180 days after the date of receipt of the written notice.
ARTICLE 36
Authentic Texts
The English, French and Spanish texts of this Agreement are equally authentic.
ANNEX 1 - FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK
The Parties are committed to respecting and promoting the principles and rights recognized in
the ILO Declaration on Fundamental Principles and Rights at Work. The Parties shall
reflect these in their laws, regulations, procedures and practices:
- freedom of association and protection of the right to organize;
- the right to bargain collectively;
- the right to strike;
- prohibition of forced labour;
- labour protections for children and young persons;
- elimination of discrimination; and
- equal pay for women and men.
ANNEX 2 - ADDITIONAL LABOUR PRINCIPLES AND RIGHTS
The following are the guiding principles and rights that the Parties are committed to promote,
subject to each Party's domestic law, but do not establish common minimum standards for their
domestic law. They cover broad areas of concern where the Parties have developed, each in its
own way, jurisprudence, laws, regulations, procedures and practices that protect the rights and
interests of their respective workers:
- minimum employment standards;
- prevention of occupational injuries and illnesses; and
- compensation in cases of occupational injuries or illnesses.
ANNEX 3 - COOPERATIVE ACTIVITIES
The Parties have established the following indicative list of areas for cooperative activities that
they may develop pursuant to Article 12:
(a) strengthen the institutional capacity of the governmental departments responsible for
labour affairs particularly in regard to information statistics, studies and research;
(b) strengthen and modernize labour inspectorates, by providing them with the
appropriate normative frameworks, as well as the structures, functions and means
for effective performance;
(c) strengthen the departments and bodies with jurisdiction over social security matters,
particularly those responsible for the administration of policies and programs for
working women, persons with disabilities and the protection of young persons at
work; and
(d) modernize systems for alternative dispute resolution as well as for the mediation and
conciliation of individual and collective labour conflicts, by providing Parties to such
conflicts with timely proceedings and trained staff.
ANNEX 4 – EXTENT OF OBLIGATIONS
1. On the date of signature of this Agreement, or of the exchange of written notifications
under Article 33, Canada shall set out in a declaration a list of any provinces for which Canada
is to be bound in respect of matters within their jurisdiction. The declaration shall be effective on
delivery to Costa Rica, and shall carry no implication as to the internal distribution of powers
within Canada. Canada shall notify Costa Rica six months in advance of any modification to its
declaration.
2. Unless a communication relates to a matter that would be under federal jurisdiction if it
were to arise within the territory of Canada, the Canadian National Point of Contact shall
identify the province of the residence or establishment of the author of any communication
regarding the labour law of Costa Rica that it forwards to the Costa Rican National Point of
Contact. The Costa Rican National Point of Contact may choose not to respond if that
province is not included in the declaration made under paragraph 1.
3. Canada may not request consultations, or the establishment of a Review Panel, under
Part Four at the instance, or primarily for the benefit, of the government of a province not
included in the declaration made under paragraph 1.
4. Canada may not request consultations, or the establishment of a panel, under Part Four,
unless Canada states in writing that the matter would be under federal jurisdiction if it were to
arise within the territory of Canada, or:
(a) Canada states in writing that the matter would be under provincial jurisdiction if it
were to arise within the territory of Canada; and
(b) the federal government and the provinces included in the declaration account for at
least 35 percent of Canada's labour force for the most recent year in which data are
available; and
(c) where the matter concerns a specific industry or sector, at least 55 percent of the
workers concerned are employed in provinces included in Canada's declaration
under paragraph 1.
5. Costa Rica may not request consultations, or the establishment of a panel, under
Part Four, concerning a matter related to a labour law of a province unless that province is
included in the declaration made under paragraph 1 and the requirements of subparagraphs 4(b)
and (c) have been met.
6. Canada shall, no later than the date on which a panel is convened pursuant to Article 15
respecting a matter within the scope of paragraph 5 of this Annex, notify Costa Rica in writing of
whether any recommendation of a panel in a report under Article 21 with respect to Canada
shall be addressed to Her Majesty in right of Canada or Her Majesty in right of the province
concerned.
7. Canada shall use its best efforts to make this Agreement applicable to as many of its
provinces as possible.
ANNEX 5 - COUNTRY-SPECIFIC DEFINITIONS
For purposes of this Agreement:
"national" means:
(a) with respect to Canada, a citizen of Canada within the meaning of the Citizenship
Act, R.S.C. 1985, c. C-29 or a permanent resident within the meaning of the
Immigration Act, R.S.C. 1985, c. I-2; and
(b) with respect to Costa Rica:
(i) Costa Ricans by birth, according to Article 13 of the Political Constitution of
the Republic of Costa Rica;
(ii) Costa Ricans by naturalization, according to Article 14 of the Political
Constitution of the Republic of Costa Rica; or
(iii) a person that, according to Costa Rican legislation, is a permanent resident of
Costa Rica.
"territory" means:
(a) with respect to Canada, the territory to which its customs laws apply, including any
areas beyond the territorial seas of Canada within which, in accordance with
international law and its domestic law, Canada may exercise rights with respect to
the seabed and subsoil and their natural resources; and
(b) with respect to Costa Rica, the territory and air space, and the maritime areas,
including the seabed and subsoil adjacent to the outer limit of the territorial sea,
over which it exercises, in accordance with international law and its domestic law,
sovereign rights with respect to the natural resources of such areas.
ANNEX 6 - PROCEDURES RELATED TO REVIEW PANELS
Panel Selection Procedures
1. For purposes of selecting a Review Panel, the following procedures shall apply:
(a) within 20 days of the establishment of a panel, each Party shall select one panelist;
(b) if one Party fails to select its panelist within such period, the other Party shall select
the panelist from among qualified individuals who are nationals of the Party that has
failed to select its panelist;
(c) the following procedures shall apply to the selection of the chairperson:
(i) the Party that is the object of the request shall provide the Party that made
the request with the names of three individuals who are qualified to be the
chairperson. The names shall be provided no later than 20 days after the
establishment of the panel;
(ii) the Party that made the request may choose one of the individuals to be the
chairperson or, if the names were not provided or none of the individuals is
acceptable, provide the Party that is the object of the request with the names
of three individuals who are qualified to be the chairperson. Those names
shall be provided no later than five days after receiving the names under
subparagraph (i) or 25 days after the establishment of the panel;
(iii) the Party that is the object of the request may choose one of the three
individuals to be the chairperson, no later than five days after receiving the
names under subparagraph (ii), in default of which the panelists shall select
the chairperson, by agreement or by lot, from among the three or six
individuals.
Rules of Procedure
2. The Parties shall, no later than one year after the entry into force of this Agreement,
establish Model Rules of Procedure which shall be used for the establishment and conduct of
proceedings under Part Four. The Model Rules will include a code of conduct for the purposes
of Article 16 and rules for the protection of information under Article 27.
3. Expenses for each set of panel proceedings pursuant to Articles 15 to 23 shall be paid by
the Party requesting the panel unless the Parties agree to establish a joint fund for the purpose of
supporting panel proceedings.
Terms of Reference of Panels
4. Unless the Parties otherwise agree, within 30 days after the Parties convene the panel, the
terms of reference shall be:
"To examine, in light of the relevant provisions of this Agreement, whether there has
been a persistent pattern of failure by the Party that was the object of the request to
effectively enforce its labour law directly related to principles and rights set out in Annex
1, and to make findings, determinations and recommendations in accordance with
paragraph 2 of Article 20."
ANNEX 7 - NATIONAL POINTS OF CONTACT
The Canadian National Point of Contact is:
Director
Office for Inter-American Labour Cooperation
Labour Program
Human Resources Development Canada
Phase II, Place du Portage
8th floor
165, Hôtel de Ville Street
Hull, Québec
Canada
Mailing Address:
Director
Office for Inter-American Labour Cooperation
Phase II, Place du Portage
165, Hôtel de Ville Street
Ottawa, Ontario
Canada K1A 0J2
Tel.: (819) 953-8860
Fax: (819) 953-8494
The Costa Rican National Point of Contact is:
Oficina de Asuntos Internacionales
Departamento Legal
Ministerio de Trabajo y Seguridad Social
Barrio Tournón, Edificio Presbítero Benjamín Nuñez
San José, Costa Rica
Tel: (506) 233-0216
Fax: (506) 222-8085
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