Q&As on Business and Forced Labour

Document | 01 February 2012


What is forced labour?

What is forced labour?

Forced or compulsory labour is any work or service that is exacted from any person under the menace or threat of a penalty, and which the person has not entered into of his or her own free will.[1]

Forced labour is a violation of the basic human right to work in freedom and freely choose one’s work.

Two elements characterise forced or compulsory labour:

  • Threat of penalty. The penalty may consist in a penal sanction, such as arrest or jail, or in the suppression of rights or privileges, such as the refusal to pay wages or forbidding a worker from travelling freely. Threats of retaliation may be realized in different forms, from the most blatant, which include the use of violence, physical obligations or even death threats, to the more subtle, often psychological, such as the threat to denounce an illegal worker to the authorities.
  • Work or service undertaken involuntarily. Deciding whether work is performed voluntarily often involves looking at external and indirect pressures, such as the withholding of part of a worker’s salary as part repayment of a loan, or the absence of wages or remuneration, or the seizure of the worker‘s identity documents. The principle that all work relationships should be founded on the mutual consent of the contracting parties implies that both may leave the work relationship at any moment, subject to giving reasonable notice in accordance with national law or a collective agreement. If the worker cannot withdraw his/her consent, without fear of suffering a penalty, the work may be considered to be forced labour, starting from the moment he or she has been denied the right to stop working.

[1]Forced Labour Convention, 1930 (No. 29), Article 2.


Business contribution to the elimination of forced labour

Question: What companies can do to prevent forced labour?

Answer: Business can play an important role in the elimination of forced labour. In particular, companies can:

  • Ensure that workers always have free access to their documentation, including passports, identity papers and travel documents;
  • Have a clear and transparent company policy, setting out the measures taken to prevent forced labour and trafficking. Clarify that the policy applies to all enterprises involved in a company’s product and supply chains;
  • Monitor carefully the agencies that provide contract labour, especially across borders, blacklisting those known to have withheld documents of workers to prevent them freely leaving if they so choose.

More detailed guidance on how to prevent or eliminate forced labour can be found in Combating forced labour: A handbook for employers and business, ILO, Geneva, 2008.


Use of prison labour

Question: When is it ok to use prison labour?

Answer: The use of prison labour is addressed in the Forced Labour Convention (No. 29), 1930.

Forced labour is work undertaken involuntarily under threat of a menace or penalty.

The requirement of free consent also applies to prisoners. A company engaging prison labour should ensure that if a prisoner refuses the work offered there is no menace of any penalty, such as loss of privileges or an unfavourable assessment of behaviour which could jeopardize any reduction in his or her sentence.

A good indication of whether prisoners freely consent to work is whether the conditions of employment approximate those of a free labour relationship. Indicators include the following:

  • Each worker receives and signs a standardized consent form from the enterprise indicating that they agree to work. The form indicates the wages and conditions of work.
  • The conditions of work the enterprise offers are similar to work outside the prison, namely:
    • Wages are comparable to those of free workers with similar skills and experience in the relevant industry or occupation, taking into account factors such as productivity levels and any costs the enterprise incurs for prison security supervision of the workers.
    • Wages are paid directly to workers. Workers receive clear and detailed wage slips showing hours worked, wages earned and any deductions authorized by law for food and lodging.
    • The daily working hours are in accordance with the law.
    • Safety and health measures respect the law.
    • Workers are included in the social security scheme for accident and health coverage.
  • Workers obtain benefits such as learning new skills and the opportunity to work cooperatively in a controlled environment enabling them to develop team skills.
  • Workers have the possibility of continuing work of the same type upon release.
  • Workers may withdraw their consent at any time, subject only to reasonable notice requirements.

All of these factors should be taken as a whole when considering whether the consent to work has been freely given. Formal, preferably written, consent should be attained by each individual prisoner before engaging him or her to work.

Practical application of these provisions may be difficult and require verification to ensure that abuse does not occur.


Locking in workers

Question: Is it OK to lock workers inside premises for the night to ensure that they are not stealing or does this constitute forced labour?

Answer: This situation is dealing with the restriction of movement of the persons concerned, which is related to the abuse of their position of vulnerability. If coupled with other means of coercion (e.g. threat or use of force), this situation may be interpreted as definitely excluding voluntary offer or consent. Even if no coercion is involved, workers should not be locked in enterprises. The ILO advocates taking a "zero tolerance" approach to confinement at the workplace.[1]

Furthermore, locking workers in a factory is clearly contrary to occupational health and safety principles. If there is an accident it may raise civil liability for personal injury. Locking workers in a factory may also constitute under national law a criminal offence or civil tort of false imprisonment.

While it is legitimate for a company to take steps to secure its property, alternative means should be explored.

The national employers’ and workers’ organizations may have useful suggestions about effective alternative approaches; and may be able to provide helpful information on forced labour issues more generally.

[1] Combating forced labour: A handbook for employers and business ILO, Geneva, 2008, p. 8


Passport retention of workers

Question: Is it OK for a company to withhold the passports of migrant workers working in their factory?

Answer: Forced or compulsory labour is any work or service that is exacted from any person under the menace or threat of a penalty, and which the person has not entered into of his or her own free will.[1]

Forced labour is a violation of the basic human right to work in freedom and freely choose one’s work.

Two elements characterise forced or compulsory labour: threat of penalty and work or service undertaken involuntarily.

The key element in many situations of forced labour is coercion—forcing people to work when they do not freely consent. Migrant workers may be coerced through withholding of their passports or identity documents. The employer may be holding the workers’ identity documents for safekeeping. In such cases, the workers must have access at all times to the documents, and there should be no constraints on the ability of the worker to leave the enterprise.

[1] Forced Labour Convention, 1930 (No. 29), Article 2.

Question: What should our supplier do if the Immigration Authority is withholding the passports of migrant workers for extended periods of time?

Answer: Retaining the identity documents of migrant workers does not, of itself, constitute forced labour. Nonetheless, depriving workers of their passports or identity documents restricts their freedom of movement and consequently increases their risk of becoming victims of forced labour. Therefore, the confiscation of passports or other identity documents of migrant workers is considered to constitute an abusive practice, whether undertaken by an employer, recruitment agency or the government.

You may wish to consider encouraging your supplier to request on behalf of their workers that the passports be returned. If the government denies the request, the supplier could seek support from the national employers' and workers' organizations to raise concerns with the government.

Question: In a free trade zone, an employer stores the passports of the migrant workers. The workers have access to their passports but only when accompanied by a senior company official, as the employer indicates that they are responsible for the workers and that the workers cannot leave the country without the permission of employer. Is this practice in line with international labour standards?

Answer: Migrant workers should have the right to leave the country without the permission of the employer.[1]

As a basic principle, documents should stay in the possession of the migrant worker. If passports or travel documents are stored by the employer, this can only be done in exceptional circumstances and for reasons of safekeeping. Furthermore, they may be stored by the employer only upon the request and with the consent of the worker, which should be genuine.

If the employer is holding the workers’ identity documents, the workers must have access at all times to the documents, and there should be no constraints on the ability of the workers to leave the enterprise. The fact that migrant workers requesting their passports should be accompanied by a senior company official raises questions about the actual possibility of the worker to access his or her passport in practice. A migrant worker should have access to his or her passport for whatever reason and not only for reasons of visa extension.

ILO promotes as good practice the establishment of private lockers to which only migrant workers have access. In the ILO Better Work Programme many employers have already set up such lockers and the experience has been very positive.

The national employers’ organization of the country concerned may provide further information. The International Organization of Employers (IOE) provides the full list of national employers’ organizations.

The International Trade Union Confederation has a migrant workers network in numerous countries and may also be a further source of information.

[1] The preamble of the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) affirms "the right of everyone to leave any country [...] as set forth in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights"


Subsistence conditions of work

Question: Is it considered forced labour when workers receive only accommodation and food?

Answer: Forced labour is work undertaken involuntarily under threat of a penalty. A company should verify that no coercion or threat is involved; that the in-kind payments do not arise from debt bondage; and that the workers concerned are free to leave their employment.

Payments in-kind in the form of goods or services should not create a state of dependency of the worker on the employer.[1] Safeguards and legislative protection are needed against the risk of abuse. The labour laws in many countries specify the maximum proportion of the wages that may be paid in kind; this usually varies from 20 to 40 per cent. An amount reaching 50 per cent in kind may not be reasonable as it unduly diminishes the cash remuneration which is necessary for the maintenance of the worker and his family.[2]

Although payment only in kind does not, in itself, constitute forced labour, such payments make workers more dependent and vulnerable and therefore create a risk that these workers may end up in a situation of forced labour.

[1] Combating Forced Labour: A handbook for employers and business, ILO, Geneva, 2008, p3
[2] See Protection of Wages Convention (No. 95), 1949, General Survey of the reports concerning the Protection of Wages Convention (No. 95) and the Protection of Wages Recommendation (No. 85), 1949, paragraph 117.


Compulsory overtime

Question: Does compulsory overtime constitute forced labour?

Answer: The imposition of overtime does not constitute forced labour as long as it is within the limits permitted by national legislation or collective agreements. Above those limits, it is appropriate to examine the circumstances in which a link arises between an obligation to perform overtime work and the protection against forced labour.[1]

Although workers may in theory be able to refuse to work beyond normal working hours, their vulnerability means that in practice they may have no choice and are obliged to do so in order to earn the minimum wage or keep their jobs, or both. In cases in which work or service is imposed by exploiting the worker’s vulnerability, under the menace of a penalty, dismissal or payment of wages below the minimum level, such exploitation ceases to be merely a matter of poor conditions of employment; it becomes one of imposing work under the menace of a penalty which calls for protection of the workers.

[1] General Survey concerning the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105), 2007, para 132.


Exploitation

Question: What is the ILO definition of exploitation and what benchmarks exist?

Answer: The ILO has used the term “exploitation” only in limited circumstances where the potential victims are particularly vulnerable because of criminal activity involved (trafficking and commercial sexual exploitation); their outsider status (indigenous peoples) their foreign status (migrant workers); or the circumstances of their employment make them particularly vulnerable.

In the context of an international instrument on trafficking in persons, the United Nations has defined exploitation as follows: “Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.[1]

The ILO Committee of Experts on the Application of Conventions and Recommendations referenced this definition as an appropriate way to link the Palermo Protocol and the Forced Labour Convention, 1930 (No. 29).[2] In the same report, the Committee of Experts also stated:

“In certain cases, the Committee has considered it appropriate to examine the links between an obligation to perform overtime work and protection against the imposition of forced labour. Exploitation of the vulnerability of workers who are facing a menace of dismissal or forced to work beyond normal working hours to attain productivity targets so that they can earn the minimum wage, limits the workers’ liberty and right to refuse work imposed on them under the menace of a penalty. The Committee has considered that, in certain situations, an obligation to perform overtime work may constitute an infringement of [the Forced Labour] Convention No. 29.”[3]

Additionally, the Committee of Experts noted that “The Migration for Employment Convention (Revised), 1949 (No. 97), contains provisions aiming at the assistance to migrants for employment, in particular through the establishment of free services to provide them with various kinds of assistance and accurate information. In addition, it requires ratifying States to take all appropriate steps against misleading propaganda relating to emigration and immigration (Articles 2 and 3). These provisions may be viewed in the context, as preventing of conditions conducive to trafficking in persons for the purpose of exploitation.” [4]

As observed by the ILO Director General in his 2005 global report, A Global Alliance against Forced Labour, the link between the Palermo Protocol and the Forced Labour Convention pose conceptual challenges, as well as challenges for law enforcement. “They introduce into international law the concept of exploitation – broken down broadly into labour and sexual exploitation – regarding which there has been limited juridical precedent. And they require States Parties, several of which have hitherto adopted anti-trafficking laws which cover only the sexual exploitation of women and children, to adopt or amend their laws in order to have a broader concept of trafficking and exploitation”.

As observed in the Director General’s 2009 global report on forced labour, The Cost of Coercion, “The recent focus on the concept of “exploitation” has generated some keen debates, as to how it can be captured as a specific offence, how to determine the gravity of the offence, and how it can be punished. Moreover, the lessons of experience point to a very thin dividing line between coerced and non-coerced exploitation. While the ILO definition of forced labour places much emphasis on the involuntariness of the work or service relationship, the Palermo Protocol and the subsequent policy debates have emphasized the means by which initial consent can be negated, through different forms of deception along the path to the employment relationship as well as within it”.[5]

[1] UN Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against transnational organized crime (Palermo Protocol), Article 3.
[2] Report by the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 96th Session, 2007, paragraphs 75-77.
[3] Ibid, paragraph 206.
[4] Ibid, paragraph 18.
[5] The Cost of Coercion, paragraph 41.


Contracts

Question: An employee works without having yet signed his contract, or is working with a contract but without understanding the contract because he/she cannot read or cannot understand the language in which the contract is written. To what extent can this situation be considered as a breach to ILO conventions related to forced labour? In order to avoid forced labour, do companies have the obligation to translate the contract in an understandable language for the worker?

Answer: All workers should have written contracts, in a language that they can easily understand, specifying their rights with regard to payment of wages, overtime, retention of identity documents, and other issues related to preventing forced labour.


Work on off-shore sites

Question: An employee works on an offshore site (e.g. oil platform). Its work contract mentions a length of stay without possibilities of early departures. The worker wants to leave his job but cannot technically leave the site. There is no threat of penalty, the worker has accepted the contract voluntarily but there is an obvious restriction of movement. To what extent can it be considered as a breach to ILO Conventions related to Forced Labour?

Answer: Forced or compulsory labour is any work or service that is provided by a person under the menace or threat of a penalty, and where that person does not work voluntarily.[1]

The principle that all work relationships should be founded on the mutual consent of the contracting parties implies that both may leave the work relationship at any moment, subject to giving reasonable notice in accordance with national law or a collective agreement. If the worker cannot withdraw his/her consent, without fear of suffering a penalty, the work may be considered to be forced labour, starting from the moment he or she has been denied the right to stop working.

Restriction of freedom of movement could constitute a bar to leaving the work relationship, raising the question of voluntariness. However, in the case of an offshore site there is a valid technical reason for limiting movement for a reasonable period. It is important, though, that workers are fully informed in advance of this condition of the contract; and that the duration of stays on the platform are of reasonable length.

[1] Forced Labour Convention, 1930 (No. 29), Article 2.