Simply banning products made with forced labour won’t help the workers affected.
Migrant workers are at particular risk of violations of workers’ rights and forced labour across the world. In the European Union, undocumented migrant workers and those with precarious migration status make up a significant proportion of the workforce in several sectors, including those particularly prone to labour exploitation: building and construction; cleaning, domestic and care work; transport and delivery; fishing, agriculture and food processing, and hospitality.
Migrant workers should thus be direct beneficiaries of any action to address forced labour in the EU. In mid-September the European Commission proposed a regulation to ban products made from forced labour, within and outside the union. But, despite the good intentions, the proposal does little or nothing to address the realities around forced labour or the needs of workers themselves.
Labour exploitation, forced labour and human trafficking are complex socio-economic issues, which call for a diverse range of measures. A product ban has the potential to be one such measure, in that it introduces financial and market consequences for exploitation. But it can be effective only if it can compel better implementation of legislation on workers’ rights, forced labour and trafficking by companies and state authorities—and, then, only if it can provide leverage for workers to negotiate better conditions, and gain access to justice if those conditions do not improve.
Indeed, without adequate engagement with—and safeguards for—workers, such a measure risks not only ineffectiveveness but unintentionally harming the very workers who are at risk of, or experiencing, forced labour. Yet in the commission’s proposal workers are remarkably absent. Despite inputs from civil-society organisations, there is not one measure directed at engaging with or supporting affected workers to secure rights and remedies.
Just considering the practicality of the proposal to impose product bans, there are numerous challenges to identifying potential situations of forced labour. For instance, investigations would rely significantly on information and co-operation with workers and their representatives. But workers whose residence is dependent on their employer and undocumented workers could risk immigration enforcement action as a result of engaging with competent authorities. Launching an investigation could lead to workers being fired, losing their income and potentially also their housing and residence permits. They could face being completed uprooted, detained and deported.
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Without measures to protect precarious and undocumented workers, workers and support organisations are unable to file complaints in many cases. And if they are able to take forward a case through the system for victims of human trafficking, there remain insurmountable challenges for the vast majority to secure justice.
Even when undocumented workers are victims of trafficking or forced labour, they are primarily treated as offenders due to their immigration status and required to leave the country or are deported as a result of interaction with law enforcement and labour inspectorates. They usually do not even receive the wages and salaries they are owed, let alone any remedy, financial or otherwise, in compensation for the harm they have experienced. Companies are rarely held to account—so their gains from exploiting workers far outweigh the risks.
Consider also a situation where investigating authorities would have enough information to determine a product was being made with forced labour, without engaging with the workers. As the commission’s proposal stands, there is no obligation even to inform the workers. The decision to withdraw a product could be made without them knowing or having any access to support.
Faith in the market
The presumption is that banning a product from the market would automatically push economic operators to improve conditions. Too much faith is being put in the corrective potential of the market, when the dynamics and drivers of forced labour are much more complicated. That same market exerts enormous downward pressure on wages and labour conditions and—together with migration policies—creates the conditions for the systematic exploitation of migrant workers.
In the United States, the Fair Food Programme is a powerful example of how market consequences can be used as leverage by workers. The programme is founded on a legally-binding agreement between Florida’s tomato growers and the Coalition of Immokalee Workers to protect working conditions for farmworkers.
Workers can safely file complaints to the Fair Food Standards Council, which can lead buyers to cut ties with the growers at fault until they remedy any violation of the agreement. They are informed of their rights and have access to financial support. A crucial and defining feature of the mechanism is that it is driven by workers, firmly integrated into workers’ organising and interests.
For any policy to work, it is essential to listen to affected communities, address their realities and needs, and avoid harm. For a product ban specifically to function, investigating authorities should be required to engage meaningfully and regularly with the workers, their representatives and third parties with legitimate interest—before making a decision on product withdrawal and before implementing such a decision.
This engagement should gather information for the investigation, including on potential adverse impacts of any ban. It should enable worker engagement in collective bargaining, dispute resolution, complaints and legal procedures related to remediation, compensation and other remedies, as relevant. And it should empower workers to secure their rights—to information, support and other services—as workers and as potential victims of a crime.
This will require specific measures to protect individuals and organisations reporting potential situations of forced labour, and engaging with responsible authorities, from any adverse treatment or consequences. Given the prevalence of migrant workers among those exploited in the EU, the processes will need to be accessible to them and address the specific barriers they face, including risks of deportation, whether or not the investigation concludes that there is a situation of forced labour.
It should also be made explicit that if a decision on product withdrawal is made, and implemented, enforcement authorities have a duty to support affected workers to mitigate potential adverse consequences, including through information and remediation. For workers in the EU, authorities should provide legal aid, shelter and support—and residence permits when needed—to enable people to secure their rights as workers and as potential victims of crime, participate in relevant complaints mechanisms and legal procedures, and find alternative employment.
We do not expect this legislation to solve all the intersecting economic, migration, social and criminal-law challenges that contribute to forced labour in the EU and the precarious situation of migrant workers. But the regulation as proposed risks having little—or even harmful—impacts in practice, because it was developed without listening to and focusing on the interests of the people most concerned.
If the goal is meaningfully to reduce forced labour, the regulation will have to address the needs of workers. Without this, it will only give the impression to European consumers that they can trust they are not buying products made with forced labour—without actually doing much to reduce it.
Lilana Keith is senior advocacy officer on labour rights and labour migration at the Platform for International Cooperation on Undocumented Migrants, a network of more than 165 organisations in 35 countries. She previously led PICUM’s work on undocumented children, young people and families.