ILO Helpdesk: Questions and answers on business and 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 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.

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.

The Abolition of Forced Labour Convention, 1957 (No. 105) is an autonomous instrument that does not require the ratification of another convention as a prerequisite.

With the adoption of the Declaration on Fundamental Principles and Rights at Work and its Follow-up in 1998, all ILO members States recognized that they have an obligation to work towards realizing certain basic values that are inherent in ILO membership, namely freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation. This obligation exists even if they have not yet been able to ratify the eight fundamental Conventions which embody these principles. Considering that the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105) are both among the list of the ILO fundamental conventions agreed by the ILO Governing Body, “all Members, even if they have not ratified the Convention in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and realize, in good faith and in accordance with the Constitution, the principles concerning fundamental rights [1] .”

Although the Declaration on Fundamental Principles and Rights at Work aim for the ratification and implementation of the fundamental Conventions by all ILO Member States [2] , their ratification is not automatic and involve a specific process as stated in article 19(5) of the ILO Constitution.
[1] ILO Declaration on Fundamental Principles and Right at Work and its Follow-up, Article 2.
[2] Article 3.

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

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.

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.

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"

Migrant workers should have the right to leave the country without the permission of the employer. 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 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.

The worker must have access to his or her identity documents at all times, this includes cases where the worker representative is holding the identity papers. You may wish instead to consider providing each worker with a secure place, such as a locker, where he or she can keep these documents.

Deciding whether work is performed voluntarily often involves looking at external and indirect pressures. Withholding part of a worker’s salary as a deposit would constitute such a pressure.

Even if the employer has paid the levy for the foreign worker, requiring repayment of the levy attributable to the unfulfilled part of the contract should not be allowed, as no fees or costs for recruitment should be charged directly or indirectly, in whole or in part, to the workers. See, Private Employment Agencies Convention, 1997 (No. 181) , Art 7.1.

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 debt and other forms of bondage caused by high recruitment or transportation fees imposed on the worker. The requirement to post a deposit also acts to compel the worker to stay. Both practices could be considered as evidence of forced labour.

In general, withholding and non-payment of wages, including for a sizable deposit, constitutes a restriction which may prevent the workers from leaving if they change their minds. However, deposits of a reasonable amount do not constitute forced labour if the workers are informed of the conditions for return of the deposit, and that the deposit is indeed refunded once they have fulfilled these conditions. In the case of a deposit required for a uniform, the worker should be made aware that should they choose to leave the deposit will be refunded to them upon returning the uniform. Any other requirements, such as that the uniform be returned in reasonable condition, should be clearly indicated and applied in a manner which does not deter workers from leaving if they so desire.

A deposit which is not returned when the worker leaves is not a deposit but a requirement that the worker pay for his or her uniform. Such deductions from workers’ wages are an issue of protection of wages. “Appropriate measures should be taken to limit deductions from wages in respect of tools, materials or equipment supplied by the employer to cases in which such deductions--

(a) are a recognised custom of the trade or occupation concerned; or
(b) are provided for by collective agreement or arbitration award; or
(c) are otherwise authorised by a procedure recognised by national laws or regulations” and not simply company policy.

If the above conditions are met, then it would be acceptable for the worker to be required to pay for his or her uniform and it should be made clear to the workers that the uniforms are their property.

Notice requirements are balancing the right of workers to leave employment when they so desire with the right of the employer to a reasonable period of time to identify a replacement worker. Notice requirements are set by national law, as it is for the government, ideally in consultation with the workers’ and employers’ organizations, to determine the appropriate balance between these competing rights. Workers and companies both should abide by the notification provisions in national law. Any penalties imposed on workers for failure to give the legally required minimum notice should be set according to national law, which company policy should respect.

The probationary period is providing the employer and worker a period of time for either or both sides to determine if the worker is suitable for the job, and if the job is suitable for the worker. If either decides that the fit between worker and job is not right, they are free to stop the working relationship at any time during this period, subject to notice provisions, and should not incur a penalty for exercising this right. Withholding wages that the worker has earned when the employer exercises this right is not forced labour (e.g., Forced or Compulsory Labour Convention (No. 29) ; Abolition of Forced Labour Convention (No. 105) . However, it is inconsistent with provisions on protection of wages, Protection of Wages Convention (No. 95) and Recommendation (No. 85) , 1949. Workers should be remunerated for days worked, regardless of whether the employer choses to terminate the employment relationship. Withholding wages to deter or penalize a worker for exercising his or her right to terminate the employment relationship is coercive, and contradicts the purpose of a probationary period.

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.

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.

A factory’s overtime policy should comply with national law and applicable collective agreements. The obligation to do overtime work is not considered forced labour if it stays within the limits permitted by national legislation or specified in relevant collective agreements. Forced labour occurs if overtime exceeds the weekly or monthly limits allowed by law and is made compulsory by threats of a penalty, irrespective of the reasons for such overtime.

Any threats of fines for refusing to work overtime which effectively deter workers from declining to work overtime beyond legal limits would also be of concern. If the workers perceive a company policy of issuing fines for not working overtime exceeding legal limits as such a threat, this could be considered forced labour. Furthermore, the ILO Committee of Experts on the Application of Conventions and Recommendations has noted that in some cases the menace may be more subtle. Fear of dismissal may drive employees to work overtime beyond what is allowed by national law; in other cases, workers may feel obliged to work above the legal maximum because this is the only way they can earn the minimum wage (for example, where remuneration is based on productivity targets). In these cases, although in theory workers may be able to refuse to work, their vulnerability may mean that they have no choice and are therefore obliged to do so in order to earn the minimum wage or keep their jobs, or both. This then becomes a situation of imposing work under the menace of a penalty and can be considered forced labour.

Non-solicitation and bond clauses

The Committee of Experts on the Application of Conventions and Recommendations (CEACR) has deferred to national courts on the issue of non-solicitation. National courts consider the duration of the restraint and who the employee is banned from soliciting (e.g., other employees of the company, consultants, customers and clients, suppliers) to determine the enforceability of the clause. They have upheld non-solicitation practices when the time was determined to be reasonable and the scope limited to banning contact with employees of the company.

Bond clauses normally bind the employee (usually skilled or senior workers) to remain under the employment of the company for a minimum period of time. A key principle of the ILO Forced Labour Convention, 1930 (No. 29) is that all work relationships should be founded on mutual consent of contracting parties. The CEACR has stressed that the right of workers to free choice of employment is inalienable, both parties must be free to leave the work relationship at any moment, subject to reasonable notice in accordance with the national law or a collective agreement; however,[1] the parties may be required to pay compensation for the damage resulting from the early termination of a fixed term contract.
[1] General Survey 2012 (Fundamental Conventions), paragraph 271.

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.

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.

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 .

Fines for violations of facility rules such as quality standards and unexcused absences are not an issue of forced labour as they do not relate to whether a worker is being coerced into working, although they may raise issues regarding other principles of international labour standards, including protection of wages.

The policy should clarify that wage advances and loans to employees should not be used as a means to bind workers to employment. Advances and loans should not exceed the limits prescribed by national law. Deductions from wages made for the repayment of a loan should not exceed the limits prescribed by national law. Workers should be informed of the terms and conditions surrounding the granting and repayment of advances and loans.

The UN Global Initiative to Fight Human Trafficking, which ILO participates in, has produced a guide “Human Trafficking and Business ”.

The question of the reimbursement of training fees has been addressed by the Committee of Experts on the Application of Conventions and Recommendations under the issue of freedom of workers to leave their employment. When workers receive training from their employer or from the State, they can be under an obligation to serve for a certain period of time. In these cases, the supervisory bodies request Governments to ensure that workers can nevertheless leave their employment within a reasonable period which is proportional to the duration of the training received, or following the proportional reimbursement of the costs of the training incurred.

The supervisory bodies have never established indicators, amounts or percentage that could be considered acceptable regarding the repayment of training fees by workers. The CEACR has never given guidance on the amount of the reimbursement or what could be considered proportionate. It has principally examined this issue in the public sector, and due to the specificities of each national context, it has followed a case by case approach when requesting information from the Governments.

For example, in a country where pursuant to legislation, the resignation of a member of the armed forces who has received a scholarship can only be accepted after (i) ten years of service if the scholarship has lasted longer than one year and (ii) resignation can be accepted in case of reimbursement only if the person concerned refunds an amount double to that of the expenses incurred by the State, the CEACR has pointed out that those who have benefited from a scholarship should also have the right to leave the service within a reasonable period that is proportional to the length of the studies financed by the State, or through reimbursement of the actual costs incurred by the State. In another country, the CEACR drew the Government’s attention to the fact that “the repayment of large sums within a short period may prevent graduates from withdrawing from compulsory service, which, in practice, could be tantamount to imposing service by law, which is contrary to the Convention”.