Guidance on Operational Practice & Indicators of Forced Labour Version 2.0, June 2017 This document provides guidance on how to spot the signs of actual, likely or possible cases of forced labour for both auditors and audit readers. It proposes a list of indicators, based on operational practice, which either independently or in various combinations, can increase the risk of forced labour through a worker’s employment cycle. The guide also proposes that protecting possible victims and capturing and documenting evidence should be paramount to any key steps to be taken by auditors when forced labour is suspected or found. The guide can be used as a general reference tool by auditing bodies, ethical sourcing initiatives and brands to help their understanding of forced labour risks and to enhance their existing audit protocols.
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Table of Contents Introduction
3
Why is this Guide necessary?
4
How can this Guide be used?
5
What is forced labour?
6
What are the “alert signs” that may indicate potential or actual forced labour?
7
Deceptive or Coercive Recruitment
9
Employment under Menace of Penalty
12
Debt/Wage Entrapment & Termination Prevention
16
What are key considerations when forced labour is found or suspected?
23
Protect Workers
23
Capture and Protect Evidence
24
Resources
26
Useful Terms
27
Back to contents
d
Join now sedexglobal.com
2
Introduction The International Labour Organization (ILO) estimates on its website that at least 21 million people worldwide are victims of forced labour. Of these, the ILO finds 14.2 million (or 68 per cent) are victims of forced labour exploitation in economic activities, such as agriculture, construction, domestic work or manufacturing. The risks to business are far reaching; the sixth edition of the U.S. Department of Labour’s List of Goods Produced by Child Labour or Forced Labour includes 136 goods produced through these forms of labour abuse in 74 countries across the world.
Back to contents
d
Join now sedexglobal.com
Recent legislation, such as The UK’s Modern Day Slavery Act, shows a growing recognition of the links between forced labour and the regulation of supply chains and adds to the rising pressure on businesses to address their impacts on human rights in their business and supply chains. Nothing can substitute for the critical role of governments and workers’ organisations in ensuring compliance with labour standards, but in places where these mechanisms are not fully developed, private sector compliance initiatives fill an important gap. An effective social audit can make an important contribution to the identification, prevention and eradication of forced labour.
4
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Why is this Guide necessary? In the briefing on Modern Day Slavery, Sedex highlights research showing forced labour is a common risk in the supply chain but that audit findings rarely raise it. The briefing provides many reasons why the problem is underreported in audits and why they may not be providing the full story, many of which fall outside the scope of a guide to solve. Forced labour can be notoriously difficult to stamp out. Supply chains are long and complex and often, companies don’t have enough visibility or influence to address the problem. However, this document seeks to move us one step closer to the identification of forced labour, through guidance on the signs where forced labour is – or may be – an issue. We seek to help to overcome some of the practical confusions around freedom of choice and freedom to leave in ILO definitions of forced labour. There is an important distinction to be made between forced labour and situations where people may be working in sub-standard employment. However, sometimes the difference may not be immediately clear. Forced labour occurs on a spectrum of exploitation. Where does decent work end and labour exploitation begin, and where does labour exploitation end and forced labour begin?
4
In between the extremes, there are a variety of employment relationships in which the element of free choice by the worker begins at least to be mitigated or constrained, and can eventually be cast into doubt. The challenge for auditors is to draw the line between substandard working conditions and extreme forms of exploitation such as forced labour. This is because the majority of cases occupy a middle ground and are hard to fit into a straightforward ‘forced labour – yes/ no’ category. Sometimes it is the combination of factors which lead to a forced labour situation. This Guide has been produced for use by social auditors and businesses on how to spot the signs, by proposing a list of operational indicators of actual, likely or possible situations of forced labour. This document proposes a list of pragmatic operational indicators, which either independently or in various combinations, can increase the risk of forced labour through a worker’s employment cycle. The guide also proposes that protecting possible victims and capturing and documenting evidence should be paramount to any key steps to be taken by auditors when forced labour is suspected or found.
Join now sedexglobal.com
Back to contents
d
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
How can this Guide be used? Social auditors and audit readers can use this guide to collect and communicate data points that will, over time hopefully, facilitate greater comparability and broader reporting of risks across audits associated with this critical issue. Business can also use the guide to better understand the operational practices that increase workers’ vulnerability to forced labour and where the risk of forced labour is more likely. The guide can be used as a general reference tool by auditing bodies, ethical sourcing initiatives and brands to help their understanding of forced labour risks and to enhance their existing audit protocols. Auditors and companies that hire them are encouraged to engage their employees and business partners to promote broader recording and reporting of forced labour risks in social audits, and to develop an implementation plan on how to incorporate the range of indicators proposed into their existing auditing systems in a manner that ensures victim protection and capturing evidence for follow-up investigation or remediation are paramount. There are some auditors and companies that are doing significantly more today and we expect as they adopt this guide they will naturally innovate and significantly improve on the recommendations.
Back to contents
d
Join now sedexglobal.com
Please note that while implementing these indicators demonstrates good human rights due diligence practices, this guidance is not intended as a stand-alone document to conduct an audit, but rather as a supplement to audit companies’ own systems as well as to the Sedex Members Ethical Trade Audit (SMETA) materials available from the Sedex web site. Moreover, the indicators are not exhaustive and are not intended to be used as a substitute for legal advice; consequently all liability for any claim or loss is excluded. This Guidance on Operational Practice & Indicators of Forced Labour is a work in progress. We therefore encourage broad feedback on the document. As we learn from experience, we will review and improve the guidance and expand our tool set for members.
5
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
What is forced labour? According to the ILO’s Article 2.1 of the Forced Labour Convention No. 29, forced labour “shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself [or herself] voluntarily.” The key elements of the definition are in the figure below. Figure: Key Elements of the Forced Labour Definition
All work or service
Any person
Menace of penalty
All types of work service or employment
Adults and children
Includes sanctions, threats, violence, etc.
Any industry, sector or occupation With or without a contract, legal or illegal
Regardless of nationality, including irregular migrant workers
Voluntary Free to consent to enter into employment
Non-payment of wages Loss of rights or priviledges
Free to leave job / employer
Source: ILO’s Combating Forced Labour: A Handbook for Employers and Business
The ILO has explained that forced labour is determined by the nature of the relationship between a person and an ‘employer’ and not by the type of work performed or the legality of the work. In its guidance, “Indicators of Forced Labour, the ILO categorises eleven indicators of forced labour:
Abuse of vulnerability
Retention of identity documents
Deception
Withholding of wages
Restriction of movement
Debt bondage
Isolation
Physical and sexual violence
!x
x!?x
6
!
Abusive working and living conditions
Excessive overtime
Intimidation and threats
Join now sedexglobal.com
Back to contents
d
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
What are the “alert signs” that may indicate potential or actual forced labour? There are significant challenges involved in translating the ILO’s concept into a practicable footing in social audits. Aware of the nebulous realworld boundaries between forced labour and more general exploitation, and of the fact that modern forms of forced labour extends beyond the main ILO 11 indicators, we set out to devise a longer list of forced labour indicators. This guidance builds on the ILO list and provides a range of “Operational Practices and Indicators” which auditors may uncover during audits.
The proposed indicators offer a range of “monitoring measures” or “alert flags” that may be used to help identify actual, likely or possible situations of forced labour. In essence they provide common examples of the practices employers engage in that – if severe or numerous enough – or if brought together – can lead to forced labour situations. They also identify the negative outcomes resulting from workers experiencing forced labour. To assist auditors in their approach, this guidance groups these practices and indicators into the employment cycle and proposes definitions within that cycle that characterise the elements of forced labour. See the figure below.
Figure: Forced Labour Risk Factors – The Employment Cycle
Highlights practices and indicators in the recruitment process which result in someone being misled or coerced into employment.
Details in which vulnerable workers are controlled, isolated, threatened, intimidated in order to coerce.
Covers practices which result in workers being trapped through debt bondage, withholding wages and unreasonable deductions so workers are left with little or no pay, as well as other practices that prevent or restrict a workers ability to quit.
Deceptive or Coercive Recruitment
Employment under menace of Penalty
Debt / Wage Entrapment and Termination Prevention.
Back to contents
d
Join now sedexglobal.com
7
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
For each indicator proposed, the ILO’s 11 indicators (see page 7 of this document) are linked as well as its applicable ILO definitional element. Each indicator is also marked to show its strength or significance, as follows: Definite indicator, which warrants a finding of non-compliance with the “Employment is Freely Chosen” standard.
Strong indicator, which signals an increased risk for forced labour, but further investigation may be needed to determine the context and any interplay with other indicators, in order to establish whether or not it rises to the level of forced labour.
Columns are also added to demonstrate who does it in order to show the different contexts in which forced labour is possible, as follows:
!
!
!
Possible indicator, which if found alongside other possible indicators, may warrant further investigation.
8
Employer-led exploitation is exploitation of job applicants and workers by the employer.
Intermediary-led exploitation is by an employer endorsed labour provider or other formal or informal recruitment intermediary.
Hidden third party labour exploitation occurs where one person holds a position of power over another and abuses that position for personal gain. It usually takes place largely in an informal, unregulated way at a stage before the recognised labour supply chain. In other words, these workers are often “introduced” to employers or labour providers, who are often unaware of the risk that the workers are being controlled by exploitative individuals. It also occurs during employment by exploitative individuals or gangs acting covertly without the employer’s knowledge.
Join now sedexglobal.com
Back to contents
d
Back to contents
d
Join now sedexglobal.com
!
!
!
!
!
the knowledge or consent of the worker
contract. Changes have been made without
not those contained in the employment
agreed upon at the time of recruitment are
The terms and conditions of employment
Recruiter, Employer
Abuse of vulnerability, Deception
Involuntariness
Involuntariness
Involuntariness
Involuntariness
Deception relates to the failure to deliver what
Involuntariness
less favourable to the worker, either one or
time of recruitment are replaced by provisions
if the original contract provisions agreed to at the
The worker could be in a forced labour situation
the worker would be in a forced labour situation.
employment at any time is restricted in any way,
etc. If then, the worker’s freedom to leave the
school attendance or frequency of parent visits,
recruited through false promises surrounding
the identity of the employer. Children may be
of regular migration status, job location or
housing and living conditions, or the acquisition
of contract, or salary and benefits, as well as
job type, availability of work, location, and length
terms and conditions of employment, including
time of recruitment and hiring with regard to the
through deception or false promises made at the
labour situation if they have entered into a job
or in writing. The worker could be in a forced
has been promised to the worker, either verbally
Comments
ILO Definition Element
between home departure and start of work.
wages, etc.) should be allowed for migrant labour
undisclosed fees for housing or food, lower
conditions (e.g., different product facility,
No contract substitution for materially worse
through so-called “supplemental agreements.”
or once the worker arrives at the worksite
deployment process (e.g., “contract substitution”)
Abuse of vulnerability, Deception
Abuse of vulnerability, Deception
Abuse of vulnerability, Deception
Intimidation & threats, restriction of movement
x!?x
!x
Applicable ILO Indicator
signed
!
Recruiter, Employer
!
Recruiter, Employer
!
Recruiter, Employer
!
Recruiter, Employer
!
Model
more times over the course of the hiring and
Strong
Strong
Strong
Strong
Definite
Strength
point of job application and/or after contract
workers, including migrant workers, at the
earnings are worse than those indicated to
employment terms, living costs or wages/
Nature of the work, working conditions,
misrepresentative
asked to sign contract which may be
or entitlements and/or workers are
misrepresents employment relationship
Worker contract or oral representations
earnings
employment contract terms, wages or
job location, employer, working conditions,
migration) are misleading about the job,
Job adverts (particularly for jobs requiring
process
control the worker during recruitment
(abduction, confinement) or psychologically
recruitment practices, which physically
Recruiter or employer employs coercive
Indicator
Deceptive or Coercive Recruitment
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
9
10
Join now sedexglobal.com
and another upon arrival)
match (e.g., one with agency in home country
actors in the recruitment process do not
Back to back contracts provided by different
agreement/contract as required by law
writing and in their own language via letter/
employment to workers in understandable
are systematically not provided prior to
Key employment terms and conditions
employment they did not consent to
workers being tied to terms and conditions of
resignation letters etc., which could lead to
Workers are required to sign blank papers,
as part of their recruitment
checks, work documentation and/or supplies
or airplane tickets and boat rides), health
fees for food, clothing, transportation (bus
Workers are being fraudulently charged
Indicator
Possible
Possible
Strong
Strong
Strength
Deceptive or Coercive Recruitment
!
!
!
Recruiter
!
Recruiter, Employer
!
Recruiter, Employer, Hidden
!
!
Recruiter, Employer, Hidden
!
!
Model
Abuse of vulnerability, Deception
Abuse of vulnerability, Deception
Abuse of Vulnerability, Deception
Abuse of vulnerability
Applicable ILO Indicator
Involuntariness
Involuntariness
Involuntariness
Involuntariness
ILO Definition Element
would not necessarily be an indication.
given and the actual contract mirrors, then it
forced labour. If terms/conditions were verbally
documents and other issues related to preventing
payment of wages, overtime, retention of identity
understand, specifying rights with regard to
contracts, in a language that they easily
The ILO states all workers should have written
situation.
way the worker would be in a forced labour
the employment at any time is restricted in any
of consent. If then, the worker’s freedom to leave
about the type/terms for work, indicating a lack
if they have entered into a job through deception
The worker could be in a forced labour situation
Comments
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Back to contents
d
Back to contents
d
Join now sedexglobal.com
!
!
!
Worker testimony and lack of documentation can often be cited in support.
temporary/casual/contractor labour
as many supplier and buyer codes require
labour risks, it is likely to be a non-compliance
While it is only a possible indicator of forced
situation
any way the worker would be in a forced labour
leave the employment at any time is restricted in
they anticipated. If then, the worker’s freedom to
up working in a lesser job at a lower rate than
role they were recruited for and therefore end
possess the skills or abilities to undertake the
recruitment practices sometimes workers do not
An additional difficulty here is that due to flawed
Comments
are critical to ensuring compliance with the law.
Involuntariness
Involuntariness
Involuntariness
Involuntariness
ILO Definition Element
including no monitoring of agency workers,
Abuse of vulnerability
Abuse of vulnerability
Abuse of vulnerability, Deception
Applicable ILO Indicator
on employment is freely chosen labour,
Employer
!
Recruiter, Employer
!
Recruiter, Employer
!
Recruiter, Employer
!
Model
management systems, and management systems
Possible
Possible
Possible
Possible
Strength
with local, national or international laws
practices and/or to ensure compliance
forced labour in their recruitment and hiring
No systems in place to identify and prevent
employment letter/agreement/contract
verbally to workers so they can understand
contract are systematically not explained
about terms of employment. Terms of
Workers are uninformed or misinformed
the worker possesses
standard of – or in a different language than –
documents are completed in a better
Job advertisements and/or application
from recruitment to employment
There are multiple labour brokers and agents
Indicator
Deceptive or Coercive Recruitment
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
11
12
Join now sedexglobal.com
out loans/credit agreements
claim for social security benefits and/or take
Workers are coerced/forced to fraudulently
family or others
witchcraft etc. or by violence or threats to self,
Workers are controlled through religion, juju,
financial retribution in their home country
families will be subject to physical, social or
comply with what is being asked of them their
Workers are led to believe that if they do not
authorities if they leave employment
their home country and/ or reported to the
subjected to threats of being returned to
Undocumented migrant workers have been
Indicator
Strong
Strong
Definite
Definite
Strength
Employment under Menace of Penalty
!
!
!
Hidden
!
Recruiter, Employer, Hidden
!
!
Employer, Hidden
!
Employer, Hidden
!
Model
Intimidation & Threats, Abuse of Vulnerability
x!?x
!x
Intimidation & Threats, Physical Violence
x!?x
!x
Intimidation & Threats, Physical Violence, Abuse of Vulnerability
x!?x
!x
Intimidation & Threats, Abuse of Vulnerability
x!?x
!x
Applicable ILO Indicator
and threats when they complain about their
Penalty
Involuntariness
Involuntariness
Penalty
Menace of
Victims of forced labour may suffer intimidation
Menace of
social or economic status.
individual belief, age, cultural background and
perspective, taking into account his or her
threats must be evaluated from the worker’s
ILO states that the credibility and impact of the
increase a worker’s sense of vulnerability. The
form of psychological coercion, designed to
According to the ILO, this can constitute a
conditions or wish to quit their employment.
Comments
ILO Definition Element
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Back to contents
d
Back to contents
d
Join now sedexglobal.com
leave the premises freely
controlled housing and are unable to enter or
Workers required to stay in company or broker
extra work for workers who do not cooperate
privileges (such as promotion potential) or
Employer punishes or threatens to remove
site
who accompany them when they leave the
the workplace by agents of their employers
Workers movements are controlled outside
when shift ends or on days off
e.g. requiring permissions or deposits, such as
entering premises (including accommodation)
Unreasonable restrictions on leaving or re-
considered reasonable
freedom of movement beyond what is
Security guards control workforce, restricting
humiliating forms of discipline
Workers are subjected to physically abusive or
Indicator
Strong
Strong
Strong
Strong
Strong
Strong
Strength
Employment under Menace of Penalty
!
!
!
Employer, Hidden
!
Employer
!
Employer, Hidden
!
Employer
!
Employer
!
Employer, Hidden
!
Model
Restriction of movement
Intimidation & Threats
x!?x
!x
Restriction of movement
Restriction of movement, Intimidation & Threats
x!?x
!x
Restriction of movement, Intimidation & Threats
x!?x
!x
Intimidation & Threats, Physical Violence
x!?x
!x
Applicable ILO Indicator
Involuntariness
Menace of Penalty
Involuntariness
Involuntariness
Involuntariness
Penalty
Menace of
ILO Definition Element
and security of workers in hazardous work sites.
include those related to protection of the safety
ILO provides that legitimate restrictions might
represents a strong indicator of forced labour.
which are considered reasonable, this
exit the work premises, subject to restrictions
to the ILO, if workers are not free to enter and
raising the question of voluntariness. According
constitute a bar to leaving the work relationship,
Restriction of freedom of movement could
Comments
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
13
14
future work, pay cuts, demotion)
of some detriment (e.g., dismissal, reduced
Workers have to work more overtime for fear
communication
third party individual restricts workers
The employer, employment agent or a
Indicator
Strong
Strong
Strength
Employment under Menace of Penalty
!
Employer
!
Employer, Recruiter, Hidden
!
!
Model
Excessive Overtime, Abuse of Vulnerability
Abuse of Vulnerability
Applicable ILO Indicator
does not constitute forced labour within the limits
Penalty
Join now sedexglobal.com
protection of the workers.
under the menace of a penalty which calls for
of employment; it becomes one of imposing work
ceases to be merely a matter of poor conditions
wages below the minimum level, such exploitation
menace of a penalty, dismissal or payment of
by exploiting the worker’s vulnerability, under the
that in cases in which work or service is imposed
wage or keep their jobs, or both. The ILO states
are obliged to do so in order to earn the minimum
means that in practice they may have no choice and
beyond normal working hours, their vulnerability
workers may in theory be able to refuse to work
obligatory overtime and forced labour. Although
the circumstances in which a link arises between
Above those limits, it is appropriate to examine
permitted by legislation or collective agreements.
The ILO states that the imposition of overtime
surveillance
workplace or living quarters, or by constant
from others, restricting movement in the
confiscating mobile phones, isolating workers
Workers’ communication can be restricted by
Comments
Menace of
Menace of Penalty
ILO Definition Element
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Back to contents
d
Back to contents
d
Join now sedexglobal.com
appear dirty and malnourished
assault, old or untreated wounds, and/or
injuries that seem to be the result of an
withdrawn and confused. They may have
physical abuse. They may appear frightened,
Workers show signs of either psychological or
instructed by someone else
to speak on their behalf and/or act as if
Workers look to or allow someone else
fining workers for rule breaking
breaking; Unreasonable policy & practice of
Workers are fined for, often arbitrary, rule
compounded by language / cultural barriers
dealing with people from the outside. This is
seek help. They show signs of distress when
Workers are reluctant to leave the facility and
Indicator
Possible
Possible
Possible
Possible
Strength
Employment under Menace of Penalty
!
!
!
!
Employer, Hidden
!
Recruiter, Employer, Hidden
!
!
Employer, Hidden
!
Recruiter, Employer, Hidden
!
!
Model
Intimidation & Threats, Physical or Sexual Violence
x!?x
!x
Abuse of Vulnerability, Isolation
Withholding of wages
Abuse of Vulnerability, Isolation
Applicable ILO Indicator
Involuntariness
Involuntariness
Penalty
Menace of
According to the ILO, anyone can be a victim
Involuntariness
position that a forced labour may arise.
takes advantage of a worker’s vulnerable
are especially vulnerable. It is when an employer
that set them apart from the majority population
have a disability or have other characteristics
options, belong to a minority, or ethnic group,
knowledge of local laws, have few livelihood
of forced labour; however people who lack
Comments
ILO Definition Element
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
15
16 !
of Penalty
and/or Menace
Involuntariness
Involuntariness
Involuntariness
ILO Definition Element
as many supplier and buyer codes require
labour risks, it is likely to be a non-compliance
While it is only a possible indicator of forced
Comments
documentation can often be cited in support.
with the law. Worker testimony and lack of
systems are critical to ensuring compliance
Isolation
Isolation
Applicable ILO Indicator
management systems, and management
Employer
!
Employer
!
Recruiter, Employer, Hidden
!
!
Model
is freely chosen labour
Possible
Possible
Possible
Strength
national or international laws on employment
and/or to ensure compliance with local,
forced labour in their employment practices
No systems in place to identify and prevent
at a work site
isolation are present that trap migrant workers
Geographic, social, cultural, or even language
are working
name or address of the location where they
or name or address of their employer and/or
information: accommodation addresses, and/
Workers do not know or provide false
Indicator
Employment under Menace of Penalty
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Join now sedexglobal.com
Back to contents
d
Back to contents
d
Join now sedexglobal.com
or unlawful terms and conditions of repayment
financing schemes and/or unreasonable and/
excessive interest rates and/or onerous
Substantial loans held by workers, with
ensures they have minimal or no income
Employer inflates workers’ indebtedness or
into debt
who controls them or who has managed them
party individual unconnected with the work
have worked to pay off debts owed to a third
Workers cannot leave employment until they
accommodation or other services
who has facilitated the work, for transport,
to the labour broker or other intermediary
they have worked to pay off debts owed
Workers cannot leave employment until
employer.
have worked to pay off debts owed to the
Workers cannot leave employment until they
Indicator
Definite
Definite
Definite
Definite
Definite
Strength
!
!
Recruiter, Employer, Hidden
!
!
Employer
!
Hidden
!
Recruiter, Employer
!
Employer
!
Model
Debt/Wage Entrapment & Termination Prevention
Debt Bondage, Withholding of wages
Debt Bondage, Withholding of wages
Debt Bondage, Withholding of wages
Debt Bondage, Withholding of wages
Debt Bondage, Withholding of wages
Applicable ILO Indicator
Involuntariness
Involuntariness
Involuntariness
Involuntariness
Forced labourers are often working in an attempt
Involuntariness
or advances to workers, etc.
produced, charging excessive interest on loans
purchased, reduced value of goods/services
accounts, inflated prices for goods/services
such as by falsification or manipulation of
compounded debts can result of many factors
debt. Induced or inflated indebtedness, or
it difficult for workers to escape from the
Employers – or recruiters – can also make
other independent lender for repayment.
resemblance to the “normal” loan from a bank or
or excessive period of time and often bears no
the worker to the employer for an unspecified
or external agent. It has the effect of binding
the worker and employer or its labour provider
labour, reflects an imbalance in power between
According to the ILO, debt bondage, or bonded
emergency expenses, such as medical costs.
recruitment or transport costs or from daily living or
can arise from wage advances or loans to cover
debt during recruitment or employment. The debt
to pay off an incurred (or sometimes inherited)
Comments
ILO Definition Element
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
17
18 relationships should be founded on the mutual
Penalty
Menace of
The ILO principle, that states all work
Menace of
consent of the contracting parties, implies that
Comments
ILO Definition Element
without risking their loss
and/or they feel that they cannot leave the job
are unable to access these items on demand
and/or or other personal possessions; workers
identification papers, and/or travel documents
party individual, is in control of worker’s original
The employer, employment agent or a third
of time
worker does not work a minimum or set period
Monetary fines or deductions are levied if a
Definite
Definite
!
Employer, Recruiter, Hidden
!
!
Employer
!
Retention of identity documents
Withholding of wages
Penalty
Menace of
Penalty
Join now sedexglobal.com
can retrieve their documents at any time.
there should be systems in place to ensure they
workers should give their written consent and
legal requirement to retain original documents,
if stopped and questioned by police. If it is a
a host country, and is at risk of imprisonment
cannot freely and safely move about or leave
intimidating. Without papers, a migrant worker
access to their documents is onerous and
documents, and/or the process for gaining
not feel comfortable requesting access to their
for safekeeping, but in fact workers often do
holding passports or other official documents
labour. Employers often rationalize that they are
workers does not, of itself, constitute forced
Retaining the identity documents of migrant
denied the right to stop working.
starting from the moment he or she has been
the work may be considered to be forced labour,
her consent, without fear of suffering a penalty,
agreement. If the worker cannot withdraw his/
in accordance with national law or a collective
moment, subject to giving reasonable notice
Withholding of wages
Applicable ILO Indicator
contract termination
Employer
!
Model
both may leave the work relationship at any
Definite
Strength
period of time; Withholding of wages for early
employment before working a minimum or set
contingent on the worker not leaving
Pay, including earned holiday pay, is
Indicator
Debt/Wage Entrapment & Termination Prevention
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Back to contents
d
Back to contents
d
Join now sedexglobal.com
been paid by employer
has passed after training or other benefit has
contract until after a specified period of time
Workers cannot terminate their labour
contract term
to country of origin if they do not complete
Workers have to pay their own costs to return
excess of the pay period and contrary to law
Notice period required from the worker is in
arrears; delayed/withheld wages
or wages are paid more than one pay period in
Pay period intervals are longer than one month
next payroll run)
termination are not paid (or paid later than the
Outstanding payments due to workers on
Indicator
Strong
Strong
Strong
Strong
Strong
Strength
!
Employer
!
Employer, Recruiter, Hidden
!
!
Employer
!
Employer
!
Employer
!
Model
Debt/Wage Entrapment & Termination Prevention
Debt Bondage, Withholding of wages
Withholding of wages
Withholding of wages
Withholding of wages
Withholding of wages
Applicable ILO Indicator
Involuntariness
Penalty
Menace of
Penalty
Menace of
Penalty
Menace of
forced labour.
opportunity to change employer, this points to
and deliberately withheld, and deny a worker the
situation. But when wages are systematically
do not automatically imply a forced labour
the ILO, irregular or delayed payment of wages
the wages that are owed to them. According to
employer longer than agreed while waiting for
Workers may be obliged to remain with an
Menace of Penalty
Comments
ILO Definition Element
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
19
20
Join now sedexglobal.com
their own bank accounts
bank accounts; or workers are not in control of
Workers have wages paid into someone else’s
exceeds an unreasonable % of wage
(accommodation, tokens, vouchers, etc.) which
Workers receive payment in kind
employment or accommodation
financial penalties for early leaving of
rental or lodge excessive deposits with
excessively long period of accommodation
Workers are required to sign up to an
finding, transport or other fees
employment/work finding agent for work
(unreasonable) debts owed to an
Workers have to work to pay off
service or for some other reason
without pay or for low pay to repay a favour or
Workers believe they are obliged to work
Indicator
Strong
Strong
Strong
Strong
Strong
Strength
!
!
!
Recruiter, Employer, Hidden
!
!
Employer
!
Employer
!
Recruiter, Employer
!
Recruiter, Employer, Hidden
!
!
Model
Debt/Wage Entrapment & Termination Prevention
Abuse of vulnerability; Withholding of wages
Withholding of wages
Withholding of wages
Debt Bondage, Withholding of wages
Debt Bondage, Withholding of wages
Applicable ILO Indicator
Involuntariness
Involuntariness
Penalty
Menace of
Involuntariness
Involuntariness
ILO Definition Element
she/he complains or attempts to leave.
fears that her/his earnings will be taken away if
may feel trapped in his job because she/he
employer or recruiter over the worker. A worker
accounts creates powerful leverage for the
Employer or recruiter access to workers’ bank
indebtedness
to leave employment due to induced or inflated
Employers can also make it difficult for workers
Comments
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Back to contents
d
Back to contents
d
Join now sedexglobal.com
the end of the year
Proportion of wages are withheld and paid at
travel to their home countries
Migrant workers are forced to pay for return
a single employer
Migrant workers visa and work permit is tied to
work is complete
worker does not have access until her term of
deposited into a savings account to which the
portion of the worker’s salary is withheld and
Forced savings programs in place – where a
national law
knowledge and which are not provided for by
the employer without worker’s consent/
Deductions are made from workers’ pay by
Indicator
Possible
Possible
Possible
Strong
Strong
Strength
Employer
!
Employer
!
Employer
!
Employer
!
Employer
!
Model
Debt/Wage Entrapment & Termination Prevention
Withholding of wages, Deception
Withholding of wages
Abuse Vulnerability
Withholding of wages
Withholding of wages
Applicable ILO Indicator
Penalty
Menace of
Involuntariness
Involuntariness
Involuntariness
These schemes often significantly deplete a
Involuntariness
indicators.
auditor may likely need to link this risk with other
This is legal practice in many countries – and an
debt
worker’s take-home pay and ability to pay off
Comments
ILO Definition Element
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
21
22
Join now sedexglobal.com
!
as many supplier and buyer codes require
labour risks, it is likely to be a non-compliance of Penalty
While it is only a possible indicator of forced and/or Menace
work for his/her relatives.
his/her job but also for housing, food and how
worker depends on the employer not only for
on the employer that go beyond the job, e.g. the
employer or in cases of multiple dependency
pre-existing dependency relationship with the
Risks of forced labour increase in cases of a
take worker wages below minimum wage.
customer requirements deductions should not
If deductions are allowed under law and/or
Comments
Involuntariness
Involuntariness
Involuntariness
Involuntariness
Involuntariness
ILO Definition Element
documentation can often be cited in support.
with the law. Worker testimony and lack of
systems are critical to ensuring compliance
Abuse of vulnerability
Abuse of vulnerability
Withholding of wages, Deception
Withholding of wages, Deception
Applicable ILO Indicator
employment is freely chosen labour
Employer
!
Employer
!
Employer, Hidden
!
Employer
!
Employer
!
Model
management systems, and management
Possible
Possible
Possible
Possible
Possible
Strength
with local, national or international laws on
practices and/or to ensure compliance
forced labour in their wage and termination
No systems in place to identify and prevent
employer that go beyond the job
Worker has multiple dependencies on the
employment
their accommodation if they leave their
choice in where they live and will lose
Workers have not been given a free
items that should be met by the employer
deductions made for essential work-related
Monetary deposits required and/or wage
verified
paid in such a way that wages cannot be
hours worked could not be verified or workers
records (e.g., double books); Wages and/or
falsification of wage and/or working hours
Evidence of deliberate incomplete or
Indicator
Debt/Wage Entrapment & Termination Prevention
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Back to contents
d
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
What are key considerations when forced labour is found or suspected? The specifics surrounding the nature of the exploitation discovered in the audit process will necessarily dictate what action to take. 1
Protect Workers
However, good business practice in dealing with forced labour – or with suspicions of forced labour – requires at a minimum actions by auditors to (1) capture and protect evidence in the audit report, and (2) protect at risk individuals. Protecting possible victims and capturing and documenting evidence for follow-up should be paramount to any key steps to be taken when forced labour is suspected or found.
1. Protect Workers As a guiding principle, auditors’ immediate actions, and the ongoing corrective actions taken by facility management and/or the brands that buy from them, should focus on what is best for any possible victims in question. The primary responsibility when dealing with a potential victim is to ensure their safety and welfare. This is at the core of most legislation and is fundamental to the approach taken by law enforcement agencies, the voluntary sector and any other organisation involved in the support of potential victims.
Back to contents
d
Join now sedexglobal.com
2
Capture and Protect Evidence
Running through all of this is the risk to the victim, anyone associated with them, and the auditor who is investigating and reporting these issues. For that reason authorities (such as investigating and enforcement authorities) may need to be engaged in order to provide the auditor and victim with the necessary guidance, support, assistance and protection. It is recommended that audit companies, and companies that hire them, develop and have in place clear communication guidelines that guide auditors on whether, how and when to refer matters to the appropriate governmental authorities. Guidelines should consider the effects of the involvement, or lack thereof, on the facility, possible victim, any other affected employees, and/ or auditing body. The protection of these at risk individuals must take precedence over all other considerations. Not doing so runs the risk that any necessary criminal investigation will be undermined, and the possible victim are left unprotected. In environments where law enforcement officials may not be fully trained in handling severe cases of abuse, auditors might need to also be aware of local resources and
23
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
organisations that provide victim services, which can act not only as a support to the victim, but the auditor. Organisations include those that support the worker’s rehabilitation (including physical and mental health), repatriation (if desired by the worker), and/or their reintegration into the labour market and community. Auditors may feel the need to share the report with any known brands purchasing from the facility in order to protect workers, particularly when reporting any suspicions to a facility that is complicit in exploitation can place either the auditor or the worker at risk. This will present issues with audits that are owned by the facility; legal (and perhaps ethical) concerns may arise regarding disclosure to a third party who has not paid for and is therefore not the owner of the report. It is recommended that auditors (and companies who hire them) review all contractual terms for commissioned audits to identify and remove any limits to sharing in these limited cases where the auditor, in his/her experience and judgment, believes that there is an actual or a strong indication of a likely forced labour exploitation case. Auditors can also visit the Sedex Members Ethical Trade Audit (SMETA)’s Supplementary Guidance for Dealing with Sensitive issues Raised at Audit for additional guidance on possible communication vehicle options.
2. Capture and Protect Evidence Any of the risks listed in this Guide, if identified, should be documented in the audit report to allow for corrective action planning by buyers and suppliers, or more importantly victim protection, where warranted. It is also important to make a record of any concerns and information which may be useful at a later stage should an investigation be appropriate.
24
Many issues raised by workers (related to some of the indicators in the Guide) will not have any supporting documentation or written evidence and so auditors traditionally have been reluctant to include the issues in the audit report. Auditors are encouraged, in order to capture evidence of risks for follow-up, to use their judgement on the type of non-compliance raised, such as citing management systems as a basis, whereby other items (such as lack of documentation) in addition to worker testimony can also be cited in support. Auditors can visit SMETA’s Supplementary Guidance for Dealing with Sensitive issues Raised at Audit for a ‘good practice approach’ on how these issues could be handled. Moreover, not all the indicators proposed are definite signs of non-compliance and warrant a finding of forced labour exploitation. Forced labour are very difficult to identify in a definitive manner, especially based off of the ILO definitions, as multiple factors need to be in place to definitively identify a situation as forced labour. In fact, many of the indicators in the Guide are suggested as they may – only in various combinations – increase the risk of forced labour through the employment cycle. Current practice is to cite the noncompliance (if there is one) under other content areas (e.g. wages, working hours, accommodation, harassment, etc.) but not as a forced labour risk. Auditors are encouraged to, in order to ensure the proper follow-up (investigation, remediation, victim protection, etc.) can be taken, also record the risks in the audit report under ‘Employment is Freely Chosen.’ Some sites are not aware that some noncompliances have knock on effects onto forced labour (e.g. non-payment of wages means workers do not feel they can leave employment). Therefore it is useful also for the facility (through raising observations) to understand their own risk.
Join now sedexglobal.com
Back to contents
d
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
The following table suggests how to record evidence in the audit report: Strength
Documentation
Definite
A finding of any of the indicators listed as “definite” in this Guide during the audit should be recorded in the audit report as a non-compliance under ‘Employment is Freely Chosen’ issue titles. (This is the current state of play for forced labour findings during audits)
Strong
If one or more strong indicators appear (e.g., workers have to work more overtime for fear of some detriment) and Either ●● workers have a dependency relationship with the employer that go beyond the job (e.g. dependency on the employer for family member’s employment; dependency for basic accommodation and food needs), Or ●● practices prevent them from leaving (e.g. ‘delayed or withheld wage payments’) Then auditors should raise the issues as non-compliance by making greater use of existing Employment is Freely Chosen issue titles. Auditors will also use their experience and judgement to make a determination whether an aggregation of findings of strong and/or possible indicators warrants a finding of non-compliance.
Possible
Possible indicators are not strong enough to suggest forced labour in themselves, but an aggregation of findings of possible indicators could warrant further investigation. In cases where there is insufficient evidence to raise a forced labour non-compliance, either through a lack of definitive signs or the combination of findings of strong and/or possible indicators are inconclusive, then auditors should raise them as observations under Employment is Freely Chosen by making greater use of existing Employment is Freely Chosen issue titles.
Evidence should always be documented for follow-up. It should be remembered that forced labour flourishes in an environment when reporting is unlikely. Non-reporting allows it to continue unabated and allows actual, likely or possible exploitation to flourish or to be hidden, thereby preventing future identification and increasing the control of and threats to workers. Non-reporting also prevents a whole picture of forced labour to be seen and understood, preventing facilities to understand their own risk. Auditors are encouraged to, in order to ensure the proper follow-up (investigation, remediation, victim protection, etc.) can be taken, to record all non-compliances and all risks in the audit report under ‘Employment is Freely Chosen.’
Back to contents
d
Join now sedexglobal.com
25
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Resources Delphi Indicators (http://www.ilo.org): presents lists of operational indicators which can be used to assess the situation of a potential victim of trafficking with respect to each of the six main elements of the definition of trafficking in human beings, as found in the Palermo Protocol. Institute for Human Rights and Business Dhaka Principles for Migration with Dignity (http://www.dhaka-principles.org/): a roadmap that traces the worker from recruitment through employment and the end of contract and that provides key principles employers and migrant recruiters should respect at each stage in the process to ensure migration with dignity. International Labour Organization (http://www. ilo.org/global/topics/forced-labour/): guidance material and tools for employers and business to strengthen their capacity to address the risk of forced labour and human trafficking in their own operations and in global supply chains. Sedex Supplier Workbook (https://www. sedexglobal.com/sedex-supplier-workbook/): an in-depth guide offering practical guidance, case studies and good practice to help suppliers around the world drive ethical improvements in their businesses. SMETA (Sedex Members Ethical Trade Audit) (https://www.sedexglobal.com/productsservices/smeta-audit/): an audit methodology that engages supply chain monitors, buyers and suppliers in one common audit approach, thereby reducing duplication and increasing convergence. Sedex Modern Slavery Briefing (https://www. sedexglobal.com/briefing-modern-dayslavery/): a generalised introduction into the challenging issues of human trafficking and forced labour, with recommendations on what businesses
26
can do. Includes a case study on how workers are affected as well as a spotlight on migrant workers & labour brokers. Sedex Modern Slavery Flyer (https:// cdn.sedexglobal.com/wp-content/ uploads/2016/09/Sedex-Briefing-ModernDay-Slavery-April-2014-Final.pdf): a generalised introduction into the transparency clause of the United Kingdom’s Modern Day Slavery Act, what it means for business, and how Sedex helps its members with compliance. Stronger Together Tool Kit (http:// stronger2gether.org/): offers an anti-human trafficking/forced labour video, a toolkit to tackle hidden labour exploitation, multi-language posters, worker leaflets and other resources. The Joseph Rowntree Foundation (https://www. jrf.org.uk): commissioned a paper that examines how forced labour is currently framed within national legislation and explores a continuum of exploitation and interventions between decent work and forced labour. UK Gangmasters Licensing Authority ‘How to Spot the Signs’: (http://www.gla.gov.uk/): defined the term modern day slavery and provides guidance on how to spot the signs. Verité Fair Hiring Toolkit (www.verite.org): offers tools, guidance and approaches to support the responsible recruitment and hiring of migrant workers in global supply chains. Walk Free Tackling Modern Slavery in Supply Chains (https://www.walkfree.org): provides companies guidance on how to reduce or eliminate the risk of modern slavery occurring in their supply chains, either as a direct or indirect result of their procurement practices.
Join now sedexglobal.com
Back to contents
d
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Useful Terms Bonded Labour or Debt Bondage: Debt bondage is a worker pledging their labour or the labour of others under their control as security for a debt; when either the real value of the work undertaken is never applied to repayment of the debt, or the length and nature of the work that has to be undertaken is never fully defined or limited. The labour is not necessarily forced by violence or threats; instead it is enforced by the worker’s forced acceptance of the obligation to repay the artificial debt. It is included as a form of exploitation related to trafficking in the United Nations protocol on trafficking in persons. Forced Labour: Article 2.1 of The Forced Labour Convention No. 29 states that forced labour “shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself [or herself] voluntarily.” Human Trafficking: Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines trafficking in persons as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” Where the victim is a child under 18 years of age, there is no requirement of coercive means. It is sufficient if the child is both recruited and exploited through one of the recognized forms of exploitation (e.g. slavery, organ removal, sexual exploitation, etc.).
Back to contents
d
Join now sedexglobal.com
Although they are interconnected, forced labour and human trafficking are not the same in international law or in practice. Forced labour can result from internal or cross-border movement which renders some workers particularly vulnerable to deceptive recruitment and coercive labour practices. However, whilst trafficked people are often exploited through forced labour, not everyone who experiences forced labour has been trafficked. An unknown number of people voluntarily enter into employment in farms, factories and homes and, once in the door, are unable to leave because the employer/ enforcer holds them in forced labour. They may work alongside persons who were recruited and brought into the same situation (i.e., trafficked). But, they are not defined as ‘trafficked’ and so are not eligible for the legal protections offered to trafficked workers. The movement of people for the purpose of forced labour and services usually involves an agent or recruiter, a transporter, and a final employer, who will derive a profit from the exploitation of the trafficked person. In some cases, the same person carries out all these trafficking activities. Modern Day Slavery: Often used as a “catch all term” to denote human trafficking, forced labour and slavery-like practices such as debt bondage, and the sale or exploitation of children. All of these crimes have a common feature – they involve one person depriving another person of their liberty in order to exploit them for personal or commercial gain. Slavery: Art 1(1) of the UN Slavery Convention defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” Slavery is much more than forced labour; all slavery involves forced labour but not all forced labour involves slavery.
27
Sedex Guidance on Operational Practice and Indicators of Forced Labour (Version 2.0, June 2017)
Acknowledgements A Working Group of the Sedex Stakeholder Forum (SSF) produced the Guidance on Operational Practice & Indicators of Forced Labour. The Working Group was chaired by Sedex’s stakeholder executive Marianne Voss, and by David Camp, Stronger Together’s Programme Coordinator, who were the main authors. Sedex would like to thank Stronger Together for lending us David Camp’s leadership and expertise to the Working Group. Stronger Together was launched in 2013 as a collaborative business led initiative to equip employers and recruiters with the practical knowledge and resources to tackle modern slavery by providing free good practice guidance and tools through www.stronger2gether.org and to support industry to combat forced labour, labour trafficking and other hidden worker exploitation in their business and supply chains.
28
Join now sedexglobal.com
Back to contents
d
This Guidance on Operational Practice & Indicators of Forced Labour is a work in progress. We at Sedex hope it is a step forward, albeit perhaps a small one, in broader identification and reporting of forced labour risks in modern supply chains. We also understand that there may challenges and we hope to learn from the experiences of others and gather feedback on what else Sedex can do to best facilitate adoption of this guidance into practice as well as what other tools may be needed to facilitate broader identification and reporting of forced labour risks. We also recognize that there are some auditors and companies that are doing significantly more today and we expect as they and others adopt this guide they will naturally innovate and significantly improve on the recommended indicators. We therefore encourage broad feedback on the document. As we learn from experience, we will review and improve the guidance and expand our tool set for members. Please forward your comments to
[email protected]
To download SMETA 6.0, or for more general information about SMETA, please visit: Sedexglobal.com
