A worker who is deceived about the wages to be paid AND cannot leave because his or her wages are withheld by the employer IS a victim of forced labour.34
Deception about the wages to be paid is considered a medium indicator of involuntariness; and withholding of wages is considered a strong indicator of penalty. From the labour perspective, the employers’ actions in the Manolada case had placed workers in a situation where only continuing to work without payment gave them hope of receiving their back pay, whereas quitting their workplace would be not only to abandon their back pay but to face destitution, detention, and deportation. This situation was ‘the menace of a penalty’.
Further, the coercion which renders work involuntary may be the result of a ‘climate of fear’ –to the extent that individual workers are not required to voice objections to orders to work, and the opportunity to escape is irrelevant. Such reasoning has been reflected in forced labour judgments, for example in the US35 and in Brazil.36 There is an abundance of publically available information documenting the history of employer violence against irregular migrant workers in Nea Manolada,37 or against journalists trying to investigate cases.38 The region hosts around 2, 000–3,000 such workers on a regular basis. Impunity as regards deplorable living and working conditions and deliberate non-payment of wages is pervasive. There were frequent cases where farmers imposed on workers the condition that wages would be paid at the end of the season; then they avoided payment by denouncing their workers to the police. Reports observed that the authorities tolerated the presence of irregular migrant workers in Manolada as long as they were employed.39 Deportation action often followed employers’ demands. The impunity of farmers is paired with the daily presence of armed guards in the fields and with ostentatious acts of punishing insubordinate workers.40
From the labour perspective, degrading living and working conditions, prolonged retention of wages – and therefore deception as to paid work and the imposition of a penalty for leaving – together with aggravating circumstances found in the behaviour of employers who kept the workers in a climate of fear and violence (conspicuously wearing a gun to intimidate them), could constitute conditions amounting to forced labour.
Addressing labour trafficking in global supply chains
The ILO has recently estimated that one fifth of the global workforce is already working in global supply chains.41 According to a recent ITUC report, multinational companies employ directly only 6% of their workers; 94% of their workers work in their supply chains.42 This means that top multinationals decide on working conditions of workers in all economies – industrialised, emerging, and developing. According to ILO estimates, 90% of forced labour and trafficking cases come from the private sector,43 including global supply chains.44 However, few victims of corporate abuses are identified, and even fewer perpetrators are convicted. Anti-trafficking laws specifically require States to establish liability of legal persons for human trafficking, including for complicity, without prejudice to the liability of the natural persons who committed the offence.45 Yet there is little, if any, tested hard law holding companies responsible for their own contributions to violations, let alone for the acts of their subsidiaries and contractors. This absence indicates a vast gap in effective prosecution of corporate actors, as well as the lack of access to remedies and compensation for victims of corporate abuses.46
One of the causes of this apparent limited capacity of the current anti-trafficking frameworks to deal with corporate liability for trafficking and forced labour may be linked to lack of coherence with international and national private laws regulating corporate liability for torts, as well as specific jurisdictional norms that regulate access to courts for extraterritorial victims.
Multinational enterprises today are networks of legal entities operating extraterritorially. Under the ‘corporate veil doctrine’, separate legal entities have separate personalities, and are liable only for their own infringements of the law, not for human rights abuses of other businesses, including their own subsidiaries. ‘Lifting the corporate veil’ –assigning liability for the conduct of another business – takes place only in exceptional circumstances.47 To do so, the behaviour of the subsidiary must be linked to the parent company: for instance, by showing the parent company’s direct or indirect involvement in abuses. In some jurisdictions, liability of a parent company may arise from the breach of its own duty of care – that is, a negligent exercise of control over a subsidiary. But the exercise of control must also be proven.
The labour approach exposes these rules of private law as inhibiting effective prosecution of human trafficking. By requiring claimants to submit evidence showing involvement of the parent company in abuses or control over the subsidiary, these doctrines create an incentive for the parent company to remain at arm’s length from the activities of its subsidiaries in order to avoid liability.48 To illustrate, a recent report by the ITUC, the Churches’ Commission for Migrants in Europe, and Anti-Slavery International examined several European cases in which corporate actors were investigated for labour exploitation abuses, including alleged labour trafficking. In each case, the sub-contracting chain made it difficult or impossible to attach responsibility.49
Another barrier to corporate liability for forced labour or trafficking is created by jurisdictional rules in extraterritorial cases. In the EU, the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters makes it obligatory for courts to accept jurisdiction in civil liability cases filed against their national companies, regardless of the place where the damage occurred. However, this obligation does not extend to foreign subsidiaries or sub-contractors of European corporations. Jurisdiction in such cases remains regulated by domestic law. In the majority of EU countries, it remains difficult to sue companies for their acts, or for the acts of their subsidiaries, which occur in another country.
Lack of access to remedies – and persistent impunity – affects power relations between parties to the labour contract, since they leave labour rights (such as the right to freedom from forced or trafficked labour, the right to compensation for withheld wages and forced overtime, freedom of association, and collective bargaining, etc.) unenforceable. The lack of a robust legal framework to hold corporations liable for abuse of workers in supply chains has been discussed recently by the International Labour Conference.50 A labour approach to trafficking allows the proposal of methods to achieve liability of the ‘real’ power dominating the supply chain – such as the principal contractor or a parent company. For example, under joint and several liability, each of the related businesses can be individually responsible for the entire obligation, and a paying party may have a right of contribution and indemnity from non-paying parties.51 The theory underpinning the call for joint and several liability laws is that if the upper-tier company (principal contractor, parent company) can be held liable for the wrongdoing of the sub-contractors at any tier, the upper-tier companies will have a greater incentive to guarantee that all sub-contractors assume corporate responsibility in respect of workers’ rights. However, examples of imposing liability in the supply chain are rare. To illustrate, FINE TUNE project partners identified one case in which the court decided about the extent of liability of the contractor for the exploitation of trafficked workers by the subcontractor.52
Can labour make an effective contribution to legal strategies against human trafficking?
Adoption of the ILO Forced Labour Protocol (and the accompanying Recommendation) has created an opportunity to add some labour considerations to existing anti-trafficking efforts. The new ILO standards expand obligations, existing under ILO Forced Labour Convention No. 29, to include preventive action against forced labour and trafficking – strengthening labour inspection, expanding labour laws to all workers, addressing fraudulent recruitment practices, and strengthening due diligence.53
Further, adoption of the new labour standards creates an opportunity to establish bette
r coherence between legal definitions applicable to the trafficking and forced labour situations through more consistent reference to the ILO jurisprudence. The Palermo Protocol and other international anti-trafficking instruments do not define forced labour. In EU law, there is no EU-wide definition of forced labour in cases of trafficking; this is left to be interpreted in national legislation and by the courts. This leads to diverse understandings of the meaning of forced labour and its indicators. It is assumed that the definitions contained in other international legal instruments are applicable.54 However, although the European Commission co-operated with the ILO to develop guidance on indicators of labour trafficking, with explicit inclusion of withholding of wages among the indicators,55 this guidance has not been reflected so far in the national legislation or analysed case law in Europe.56
The use of the ILO jurisprudence and operational indicators allows us to interpret the crime of trafficking from the labour perspective. Accordingly, better understanding of the role withholding of wages plays in keeping workers powerless allows the development of normative interventions that potentially allow the transformation of employment practices in the labour sectors susceptible to trafficking, in order to reduce instances of exploitation. Elimination of persistent non-payment or under-payment of wages by employers of irregular migrants has already been attempted by the 2009 EU Employers Sanctions Directive. In an attempt to help irregular migrant workers claim and actually get their back pay from their employers, the Directive obliges employers to pay withheld wages even where workers have already been expelled from the country where the work was performed. Joint liability for such payment is required in case any intermediate sub-contractor (or the main contractor) knew about the employment of irregular migrants by the sub-contractor.57 These provisions, however, have been poorly transposed by the Member States.58 There was no available data on cases where these provisions were used to obtain remedies for workers.59 Adopting a labour perspective to trafficking, recognising the coercive potential of the withholding of wages in extracting labour from workers, could provide the impetus for better transposition of these provisions, and for their extension to cover not only third-country nationals, but also EU citizens.
Regardless of specific provisions requiring the establishing of liability of legal persons,60 the current anti-trafficking frameworks do not seem to allow for effective prosecution of corporate actors. Although the Palermo Protocol puts emphasis on international co-operation, there has been little debate regarding judicial co-operation to effectively prosecute trafficking cases in global supply chains. The labour approach allows identification of those rules that allow corporations to avoid liability, and highlights the need for legal interventions that would enable the extraterritorial conduct of multinational corporations to be addressed.
Accordingly, the added value of the labour approach lies in addressing human trafficking not only negatively, through legal prohibition, but also positively, by protecting all rights necessary to provide workers with power to avoid un-free61 labour. On the logic of this approach, the right to be free from forced or trafficked labour includes the right of a worker, irrespective of migration status, to change employers; the right to organise and engage in collective bargaining; and the right to a remedy in case of withheld wages or unpaid overtime.
A labour approach allows identification of strategies that strengthen the bargaining position of vulnerable workers, and gives them tools for transforming employment practices to eradicate exploitation. Such strategies may include strengthening frameworks for collective action and bargaining, and protection of the right to unionise; eliminating legal schemes that bind workers to specific employers; extending the application of protective employment and labour laws to sectors at risk of trafficking; introducing regulations that prevent structuring contracts on debt (such as contracts linked to payment of recruitment fees); and guaranteeing legal tools to hold companies liable for trafficking and to ensure that workers can effectively enforce their wage claims. This approach appears to provide an indispensable way to move beyond the limitations of the predominant prohibition approach and improve the coherence of legal responses, as well as the quality of policy interventions.
Notes
1 See ITUC Frontline: Eliminating Slavery, available at: https://www.ituc-csi.org/eliminating-slavery. See also: Constitution of the International Trade Union Confederation: Aims: “[the Confederation] shall strive for the universal respect of fundamental rights at work, until child labour and forced labour in all their forms are abolished, discrimination at work eliminated and the trade union rights of all workers observed fully and everywhere”.
2 See ILO, Global Estimate of Forced Labour: Results and Methodology (Geneva: ILO, 2012).
3 ILO, Profits and Poverty: The Economics of Forced Labour (Geneva: ILO, 2014).
4 See: Article 2 of ILO Forced Labour Convention No. 29, 1930.
5 This article has been written as a follow-up to the project: ‘Labour Trafficking: Fighting New Trends, Understanding New Elements, developing new responses and partnerships – FINE TUNE” which was funded by the European Commission. More information about the outcomes of the project is available at: https://www.ituc-csi.org/fine-tune-project-three-reports-on.
6 In her article, “A Labour Paradigm for Human Trafficking”, Hila Shamir analysed the human rights-based approach to human trafficking. Her article called for a paradigm shift towards the adoption of a labour approach that targets the structure of labour markets prone to severely exploitative labour practices. See: Shamir, H., “A Labour Paradigm for Human Trafficking” (2012) 60 UCLA Law Review 76. See also: ILO, Strengthening Action to End Forced Labour, Overview of International Legal Framework (Geneva: ILO, 2013).
7 I United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime; Council of Europe Convention of 2005 on action against trafficking in human beings; EU Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims.
8 According to the UNODC Global Report, in spite of the legislative progress with regards to criminalisation of human trafficking, there are still few convictions for trafficking in persons. Only around 15 percent of countries worldwide reported having more than 50 convictions per year, with around 15 percent having no convictions at all, p. 51, figure 36. See: UNODC, Global Report on Trafficking in Persons (Vienna: UNODC, 2016) available at: https://www.unodc.org/documents/data-and-analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf.
9 The figure most commonly quoted to estimate the number of trafficked persons is the ILO’s 2012 Report (n. 2), which found that there are 20.9 million victims of forced labour worldwide, including trafficked victims. Despite these large numbers, the US Department of State’s Trafficking in Persons Report, which also relies on the ILOs estimate regarding the scope of the phenomenon, stated that, in 2015, only 77,823 victims of human trafficking were identified around the world, and there were only 18,930 prosecutions and 6,609 convictions for trafficking worldwide, a mere 456 of which were related to labour trafficking, while the rest were related to sex trafficking. See: US Department of State’s Trafficking in Persons Report (Washington: US Department of State 2016), available at: https://www.state.gov/documents/organization/258876.pdf.
10 The human rights-oriented approach offers protection and assistance to victims of trafficking after they have been rescued from exploitation – through prohibition of trafficking, and the extension of certain rights (such as safe shelter, temporary visas and work permits, and various social rights, including health care and counselling).
11 Constitution of the International Labour Organisation, Annex, May 10, 1944 (concerning the aims and purposes of the ILO).
12 See Bagenstos, S., “Employment Law and Social Equality” (2013) 112 Michigan Law Review 225; and Cabrielli, D., Employment Law in Context, Texts and Materials (20
14), pp. 12–14.
13 For description of a labour paradigm for human trafficking, see Shamir, 2012 (n.6); See also: Pope, J.G., “A Free Labour Approach to Trafficking” (2010), 158 University of Pennsylvania Law Review, pp. 1849–1875.
14 See ILO, Law and Practice Report, Forced Labour (Geneva: ILO, 2014); and ILO, Human Trafficking and Forced Labour Exploitation Guidelines for Legislation and Law Enforcement (Geneva: ILO, 2005). For academic analysis of structural factors affecting workers’ vulnerability to trafficking, see Shamir, 2012 (n.6).
15 Domestic work and agriculture are two labour sectors traditionally excluded from various protections under labour and employment law. See ILO, Hard to See, Harder to Count: Survey Guidelines to Estimate Forced Labour of Adults and Children (Geneva: ILO, 2012).
16 Protocol of 2014 to the Forced Labour Convention, 1930 (No. 29) and Recommendation on Supplementary Measures for the Effective Suppression of Forced Labour, 2014 (No. 203).
Routledge Handbook of Human Trafficking Page 92