partthree – BHR Compendium

BUSINESS AND HUMAN RIGHT IN CAMBODIA

26. PROVISION OF SECURITY

HING Vandanet, RADU Mares

Introduction

Businesses require support from security forces – private security companies, police, even the military – in order to conduct their operations safely. Indeed, they sometimes operate in unstable environments, sometimes even in volatile environments and war zones. It is part of their human rights responsibility to ensure the safety of their employees (chapter 20). At the same time, hiring security forces has to be done responsibly to avoid situations where innocent citizens are brutalized by security forces when they merely seek to exercise their human rights of freedom of association, expression and assembly (chapter 19) and have legitimate grievances about environmental degradation (chapter 29), land dispossession (chapter 25) or working conditions (chapters 17-21). During the last 20 years, a number of multistakeholder initiatives (chapter 5) have emerged to offer guidance on how to provide security without infringing on human rights. Specific provisions have been developed for public or private security forces, at different stages of engagement – from screening and selection to training on rules of engagement to reporting abuses and cooperating with judicial mechanisms (chapter 6) – in times of peace or armed conflict. Most abuses tend to occur in the extractive industries (mining, oil and gas) and agriculture sector (including forestry) given that such industries cannot easily relocate. Businesses are expected to perform enhanced human rights due diligence in such settings of high risk (chapters 7-14) and the responsibility of ‘home states’ to advise and regulate (chapter 4) companies operating in conflict areas is clearly recognized in the UNGPs (chapter 2). There have been legal cases in home state courts (chapter 6) where transnational companies have had to answer to abuses committed by security forces going as far as torture, killings, rape and other abuses reaching the level of violations of customary international law, war crimes and crimes against humanity (chapter 1). Given the seriousness of such abuses, even leading companies are quite secretive about their performance in the area of security, likely because full transparency could easily trigger legal liability (chapter 6). Such companies however recognize the importance of conflict analysis and human rights due diligence as a way to identify root causes of conflict and take proactive measures in partnership with stakeholders (chapter 5).

In Cambodia, most common instances of business-related abuse are related to land. These are areas of potential economic growth or investment involving rich investors, politicians, local authorities and/or armed forces or private security. There have been reports about the security forces using violence against people or workers. Peace, development, and human rights are three key dimensions of welfare and prosperity and the question often posed is which one should come first. Peace is a popular political message in Cambodia. Some would argue that if there is no peace there is no development or human rights either. However, others would argue that violations of human rights are the root cause of instability and insecurity; and that such violations therefore jeopardize peace and inhibit development.

Main Aspects

Public and private security
Private Military and Security Companies (PMSCs)
Private Security Companies (PSCs)
Obligations of states
Responsibilities of corporations
Use and control of weapons and equipment
Screening of personnel
Training
Risk assessments
Complaint mechanisms
Certification standards
Business reports

Background

Bernard, Business, Violence and Conflict^{^[1]}

Businesses can have both positive and negative effects on communities in conflict-affected or high-risk areas. They may contribute to the violence, but they may also be the victims of it, or even assist in the relief and prevention of further violence. This issue of the Review examines the relationship between business and conflict, the rules that regulate companies’ activities in the context of conflict, efforts to highlight the rights and responsibilities of companies, States and civil society in this field and the options open to humanitarian agencies that want to enter into dialogue with companies.

One particular type of business enterprise which is, by definition, more exposed to armed conflict and other situations of violence is private military and security companies (PMSCs). Following the recent era in which mercenaries hired out their services as soldiers of fortune in the African conflicts, the wars in the Balkans, in Iraq, and in Afghanistan have seen the emergence of new structures providing military and security-type services: PMSCs. In the face of growing demand, there has been an increase in the number of PMSCs, which have extended their range of services to include security, logistics, maintaining and operating military equipment, intelligence, training of police and armed forces, and detention-related activities, to name a few. In fact, one can speak of a veritable private military and security industry that is providing an ever broader range of services, increasingly today in the field of maritime security in response to piracy (delivery of ransom money, negotiations, sea patrols, and so on). This multifaceted and quickly evolving nature of the services provided by PMSCs poses significant challenges to developing a coherent legal framework governing their activities

Instruments

Voluntary Principles on Security and Human Rights^{^[2]}

(…) voluntary principles to guide Companies in maintaining the safety and security of their operations within an operating framework that ensures respect for human rights and fundamental freedoms.

Risk Assessment

(…) accurate, effective risk assessments should consider the following factors:

Identification of security risks. Security risks can result from political, economic, civil or social factors. Moreover, certain personnel and assets may be at greater risk than others. Identification of security risks allows a Company to take measures to minimize risk and to assess whether Company actions may heighten risk.
Potential for violence. Depending on the environment, violence can be widespread or limited to particular regions, and it can develop with little or no warning. Civil society, home and host government representatives, and other sources should be consulted to identify risks presented by the potential for violence. Risk assessments should examine patterns of violence in areas of Company operations for educational, predictive, and preventative purposes.
Human rights records. Risk assessments should consider the available human rights records of public security forces, paramilitaries, local and national law enforcement, as well as the reputation of private security. Awareness of past abuses and allegations can help Companies to avoid recurrences as well as to promote accountability. Also, identification of the capability of the above entities to respond to situations of violence in a lawful manner (i.e., consistent with applicable international standards) allows Companies to develop appropriate measures in operating environments.
Rule of law. Risk assessments should consider the local prosecuting authority and judiciary’s capacity to hold accountable those responsible for human rights abuses and for those responsible for violations of international humanitarian law in a manner that respects the rights of the accused.
Conflict analysis. Identification of and understanding the root causes and nature of local conflicts, as well as the level of adherence to human rights and international humanitarian law standards by key actors, can be instructive for the development of strategies for managing relations between the Company, local communities, Company employees and their unions, and host governments.
Equipment transfers. Where Companies provide equipment (including lethal and non-lethal equipment) to public or private security, they should consider the risk of such transfers, any relevant export licensing requirements, and the feasibility of measures to mitigate foreseeable negative consequences, including adequate controls to prevent misappropriation or diversion of equipment which may lead to human rights abuses. In making risk assessments, companies should consider any relevant past incidents involving previous equipment transfers.

Interactions between companies and public security

Companies should use their influence to promote the following principles with public security: (a) individuals credibly implicated in human rights abuses should not provide security services for Companies; (b) force should be used only when strictly necessary and to an extent proportional to the threat; and (c) the rights of individuals should not be violated while exercising the right to exercise freedom of association and peaceful assembly, the right to engage in collective bargaining, or other related rights of Company employees as recognized by the Universal Declaration of Human Rights and the ILO Declaration on Fundamental Principles and Rights at Work.

In cases where physical force is used by public security, such incidents should be reported to the appropriate authorities and to the Company. Where force is used, medical aid should be provided to injured persons, including to offenders. (…)
Companies should hold structured meetings with public security on a regular basis to discuss security, human rights and related work-place safety issues. Companies should also consult regularly with other Companies, host and home governments, and civil society to discuss security and human rights. Where Companies operating in the same region have common concerns, they should consider collectively raising those concerns with the host and home governments. (…)
Companies should record and report any credible allegations of human rights abuses by public security in their areas of operation to appropriate host government authorities. Where appropriate, Companies should urge investigation and that action be taken to prevent any recurrence.
Companies should actively monitor the status of investigations and press for their proper resolution.

Interactions between companies and private security

Where host governments are unable or unwilling to provide adequate security to protect a Company’s personnel or assets, it may be necessary to engage private security providers as a complement to public security. In this context, private security may have to coordinate with state forces, (law enforcement, in particular) to carry weapons and to consider the defensive local use of force. (…)

Private security should observe the policies of the contracting Company regarding ethical conduct and human rights; the law and professional standards of the country in which they operate; emerging best practices developed by industry, civil society, and governments; and promote the observance of international humanitarian law.(…)
Companies should consult and monitor private security providers to ensure they fulfil their obligation to provide security in a manner consistent with the principles outlined above. Where appropriate, Companies should seek to employ private security providers that are representative of the local population.

Voluntary Principles Initiative, Governance Rules^{^[3]}

Participation criteria

All Participants are expected to meet the following criteria:

Publicly promote the Voluntary Principles;
Proactively implement or assist in the implementation of the Voluntary Principles;
Attend the Annual Plenary Meeting and, as appropriate and commensurate with resource constraints, other sanctioned extraordinary and in-country meetings;
Communicate publicly, at least annually, on efforts to implement or assist in the implementation of the Voluntary Principles;
Prepare and submit to the Steering Committee, one month prior to the Annual Plenary Meeting, an Annual Report on efforts to implement or assist in the implementation of the Voluntary Principles according to criteria determined by the Participants;
Participate in dialogue with other Voluntary Principles Participants;
Subject to legal, confidentiality, safety, and operational concerns, provide timely responses to reasonable requests for information from other Participants with the aim of facilitating comprehensive understanding of the issues related to implementation or assistance in implementation of the Voluntary Principles.

Corporate pillar reporting guidelines

The Corporate Pillar Reporting Guidelines are divided into four sections:

(A) Commitment to the Voluntary Principles;

(B) Policies, Procedures and Related Activities;

(D) Lessons and Issues.

Sections A-C set forth expected reporting commitments and Section D is optional.

NGO pillar reporting guidelines

The NGO Pillar Reporting Guidelines are divided into five sections:

(A) Commitment to the Voluntary Principles;

(B) Procedures;

(D) Country Implementation; and

(E) Lessons and Issues.

Sections A-E set forth expected reporting commitments and Section E is optional.

Government pillar reporting guidelines

The Government Pillar Reporting Guidelines are divided into four sections:

(A) Commitment to the Voluntary Principles;

(B) Policies, Procedures and Related Activities;

(D) Lessons and Issues.

Sections A-C set forth expected reporting commitments and Section D is optional.

Voluntary Principles Initiative, Corporate Pillar Verification Framework^{^[4]}

Key Performance Indicators

(…) a significant component of the accountability framework for any participating organization is the selection of a suite of organizationally appropriate performance indicators. Participants are encouraged to select indicators that will provide a reasonably accurate representation of the implementation. To guide this work the following categories should be considered.

Participant Commitments
Risk Assessment
Public Security
Private Security
Process to manage allegations
Engagement with stakeholders

It is the responsibility of Participants to develop a set of valid selection criteria to ensure that any assessment is a reasonably representative sample. This may involve the inclusion of a proportional number of problem locations and lower risk ones. It also involves the evaluation of a statistically relevant representative sample size.

Voluntary Principles Initiative, Model Clauses^{^[5]}

D. Screening with respect to Security and Human Rights

The Government Security Force agrees to ensure that Government Security Force personnel who have faced credible allegations that they committed violent crimes or were involved in human rights abuses, will not be assigned duties in and around the project area. Any Government Security Force personnel active in and around the project area, who is found later to be credibly implicated in human rights abuses, will be removed from the area and will be dealt with in accordance with applicable national and international law.

F. Use and Control of Weapons and Equipment

Company shall not be required to, and Government Security Force shall not request that, Company provide lethal weaponry, including hard ammunition, or make any payment in order to procure such weapons, weaponry, or ammunition. Government Security Force agrees that no support, including any payments, provided by Company shall be used for lethal weaponry or other lethal equipment. Government Security Force agrees that any equipment provided by Company will not be used for any other purpose than that contemplated by this agreement and will only be used when personnel are on duty, or as otherwise specified in this Agreement.

G. Investigation of Security Incidents

Government Security Force agrees to promptly advise Company of any security incident involving use of weapons or use of force, and of any alleged human rights violation or abuse in which Government Security Force personnel was involved while performing their duties in relation to the Company’s property, facilities or personnel. Government Security Force will promptly investigate, report, and resolve all such incidents, potential violations or abuses in accordance with applicable national and international law. Government Security Force will regularly inform Company of progress in the investigation or proceedings following the investigation. During the course of the investigation or proceedings, Government Security Force agrees to suspend the personnel under investigation or being prosecuted from his/her duty in and around the project area. (…)

If the Government Security Force or appropriate official investigation finds that Government Security Force personnel used disproportionate force, violated or contravened the Security and Human Rights Standards, human rights and/or international humanitarian law, or agreements on use of weapons or other equipment, personnel shall be subject to appropriate disciplinary action by the Government Security Force and/or be reported to the appropriate authorities, and Government Security Force shall take appropriate action to prevent recurrence.

H. Transparency

The Parties agree to make their security arrangements transparent and accessible to the public, subject to any overriding safety and security concerns.

Voluntary Principles Initiative, Implementation Guidance Tools^{^[6]}

What is risk assessment?

Risk is simply “the impact of uncertainty on objectives”. A risk assessment is about identifying, analysing and evaluating those uncertainties. The objective of the VPs is to ensure that security is managed in a way that respects human rights and humanitarian law. Therefore, a VPs risk assessment is about assessing the uncertainties that could impact this objective, and identifying how to address them.

Risk assessments are conducted across a range of activities and the approaches to doing so are now fairly standardized (e.g. the ISO31000 international risk management standard is a set of easy-to understand principles). A VPs risk assessment follows these standards; the only difference is that it is VPs-specific. As such, the tools described in this module can be easily integrated into existing risk management approaches and methods. Similarly, existing tools and approaches can be adapted in order to better reflect the VPs.

VPs risk assessment looks at both security risks to the company and human rights risks to communities in which the company is operating. (…)

Case Study: Managing equipment transfers

A company operating in West Africa routinely gets asked by the military for fuel, the use of company vehicles, and other equipment. The military is under-resourced and it cannot adequately protect local citizens or the company without these extra resources. The company must therefore transfer equipment from time to time in order to manage security risks. The company identified that this poses a number of other risks, particularly the risk that equipment transferred could be used to carry out human rights abuses. The company also found in the past that fuel provided to the military can get bunkered (i.e. illegally sold on for profit), and vehicle parts stripped (from engines to tyres) and similarly sold on.

To manage these risks, the company put in place a number of safeguards. It has made clear to the military its expectations around conduct and only transfers non-lethal equipment. It has placed tracking equipment on all vehicles so that it knows the whereabouts of its vehicles at all times. It also provides its own paid drivers to the military when vehicles are transferred so that agreements around their use can be assured and to ensure that the vehicles are not used inappropriately. Finally, it works with its peer companies to track the amount of fuel transferred so that it can control the risk of fuel being bunkered. These safeguards have so far proven very effective in managing human rights risks.

Addressing Security and Human Rights Challenges in Complex Environments^{^[7]}

Working with public security forces

Security actors may have very different attitudes to human rights than found in VPs member companies’ home states.

Good Practices

Communicate company’s adherence to the VPs and include this commitment in agreements with the host government to facilitate acceptance by national security actors

Prepare a clear statement of policy that stipulates the enterprise’s human rights expectations of its partners or parties directly linked to its operations. The statement should also be publicly available to enhance its weight (GPs: 16). It “provides a starting point from which the enterprise can better leverage respect for human rights”. (UNIG: 27)
Communicate company policy regarding ethical conduct and human rights to public security forces. (VPs: 3)
Consult national laws to identify existing norms reinforcing VPs standards and make reference to them in any contracts or agreements with host state actors.
Include VPs in contracts/agreements/MoUs with the host government. The existence of “contracts or other formal agreements can play an important role in requiring or creating incentives for those other parties to respect human rights”. Effective “communication between the company staff that draw up the contract, departments that will be involved in its execution and those that have oversight of human rights issues” is essential. (UNIG: 47-48)

Meet regularly with the management of public security forces

“Establish a pattern of regular, formal meetings with public security providers in order to exchange security information and address concerns regarding human rights and (international) humanitarian law.” (IGTs: 40)

Focus on common values

Focus the dialogue on concepts like “operational excellence,” “best practice”, “respect for human life and dignity” or other shared values. Also, “establishing camaraderie between the public provider and the company security manager on the basis of shared or similar experiences in public service can be very effective” in making the case for VPs relevance and importance. (IGTs: 41, 47)
Work with local public security force commanders to establish mutually agreed Rules of Engagement for the use of force under human rights and international humanitarian law. “These rules then should become a part of any training the public security forces do prior to deployment to the company’s facilities.” (MIGA: III-8)

Case Study: Human Rights Training In Cameroon

In Cameroon, as in many countries, oil and gas operations are considered a national asset, with public security forces charged with the responsibility for the safety and security of extractive operations. (…) A training programme was developedaround five key elements.

Firstly, the training focused on practical situations the soldiers of the BIR have commonly encountered in the past. The programme was based on everyday situations such as local protests and road blocks rather than general principles of human rights (FFP, 2013: 2).

Secondly, the joint process identified common values such as honour, respect and ensuring human security, which were used in the training to ‘translate’ the aim of human rights standards into the local discourse (ibid.).

Thirdly, the training material was adapted to the local context. For instance, the programme approached concepts such as ‘human security’ from the perspective of the family, since the initial scoping study identified the deep importance of family to Cameroonians (ibid. 4).

Fourthly, the joint process provided a platform for the BIR participants to present and discuss their own operational experience. BIR soldiers and commanders could review their peers’ challenges and share personal good practices.

Lastly, the joint-process found a suitable medium through which all affected actors could best be reached that was designed to augment and support the actual training course, and provide a take-away resource for participants. It was decided that the best approach would be a series of comic books, which proved easy to disseminate. The comic series, entitled “Captain Cameroun”, reflected local and challenging situations highlighting both inappropriate and appropriate security responses focusing on the previously identified shared values: family, honour, respect and ensuring human security.

International Code of Conduct for Private Security Service Providers^{^[8]}

Preamble

1. Private Security Companies and other Private Security Service Providers (collectively “PSCs”) play an important role in protecting state and non-state clients engaged in relief, recovery, and reconstruction efforts, commercial business operations, diplomacy and military activity. In providing these services, the activities of PSCs can have potentially positive and negative consequences for their clients, the local population in the area of operation, the general security environment, the enjoyment of human rights and the rule of law.

6. Signatory Companies commit to the following, as set forth in this Code:

to operate in accordance with this Code;
to operate in accordance with applicable laws and regulations, and in accordance with relevant corporate standards of business conduct;
to operate in a manner that recognizes and supports the rule of law; respects human rights, and protects the interests of their clients;
to take steps to establish and maintain an effective internal governance framework in order to deter, monitor, report, and effectively address adverse impacts on human rights;
to provide a means for responding to and resolving allegations of activity that violates any applicable national or international law or this Code; and
to cooperate in good faith with national and international authorities exercising proper jurisdiction, in particular with regard to national and international investigations of violations of national and international criminal law, of violations of international humanitarian law, or of human rights abuses.

Selection and vetting of personnel

48. Signatory Companies will establish and maintain internal policies and procedures to determine the suitability of applicants, or Personnel, to carry weapons as part of their duties. At a minimum, this will include checks that they have not:

been convicted of a crime that would indicate that the individual lacks the character and fitness to perform security services pursuant to the principles of this Code;
been dishonourably discharged;
had other employment or engagement contracts terminated for documented violations of one or more of the principles contained in this Code; or
had a history of other conduct that, according to an objectively reasonable standard, brings into question their fitness to carry a weapon. (…)

Incident reporting

63. Signatory Companies will prepare an incident report documenting any incident involving its Personnel that involves the use of any weapon, which includes the firing of weapons under any circumstance (except authorized training), any escalation of force, damage to equipment or injury to persons, attacks, criminal acts, traffic accidents, incidents involving other security forces, or such reporting as otherwise required by the Client, and will conduct an internal inquiry in order to determine the following:

time and location of the incident;
identity and nationality of any persons involved including their addresses and other contact details;
injuries/damage sustained;
circumstances leading up to the incident; and
any measures taken by the Signatory Company in response to it.

Upon completion of the inquiry, the Signatory Company will produce in writing an incident report including the above information, copies of which will be provided to the Client and, to the extent required by law, to the Competent Authorities.

Grievance procedures

66. Signatory Companies will establish grievance procedures to address claims alleging failure by the Company to respect the principles contained in this Code brought by Personnel or by third parties. 67. Signatory Companies will:

establish procedures for their Personnel and for third parties to report allegations of improper and/or illegal conduct to designated Personnel, including such acts or omissions that would violate the principles contained in this Code. Procedures must be fair, accessible and offer effective remedies, including recommendations for the prevention of recurrence. They shall also facilitate reporting by persons with reason to believe that improper or illegal conduct, or a violation of this Code, has occurred or is about to occur, of such conduct, to designated individuals within a Company and, where appropriate, to competent authorities;
publish details of their grievance mechanism on a publically accessible website;
investigate allegations promptly, impartially and with due consideration to confidentiality;
keep records about any such allegations, findings or disciplinary measures. Except where prohibited or protected by applicable law, such records should be made available to a Competent Authority on request;
cooperate with official investigations, and not participate in or tolerate from their Personnel, the impeding of witnesses, testimony or investigations;
take appropriate disciplinary action, which could include termination of employment in case of a finding of such violations or unlawful behaviour; and
ensure that their Personnel who report wrongdoings in good faith are provided protection against any retaliation for making such reports, such as shielding them from unwarranted or otherwise inappropriate disciplinary measures, and that matters raised are examined and acted upon without undue delay.

International Code of Conduct for Private Security Providers’ Association^{^[9]}

The International Code of Conduct for Private Security Providers’ Association (ICoCA) is a multi-stakeholder initiative established as a Swiss non-profit association. (…) All members – States, private security companies and civil society organizations (the three ‘pillars’) – form part of the General Assembly. Similarly, the Board of Directors consists of twelve elected members, which grant equal representation to each pillar. (…)

The ICoCA is guided by the principles of the Code of Conduct. These include a commitment to good governance, respect for human rights and international humanitarian law, and a high standard of professional conduct. Its operations are carried out globally, with integrity, impartiality and confidentiality. The ICoCA strives to ensure protection and provide remedy to victims of abuse by private security providers. The ICoCA endeavors to prevent excessive use of force; to prevent torture and other degrading treatments or punishments; to prevent sexual exploitation and abuse, and gender-based violence; to prevent human trafficking, slavery and forced labour; to protect the rights of children; and to prevent discrimination.

International Code of Conduct Association, Complaints

The International Code of Conduct Association (ICoCA) receives and processes complaints of alleged violations of the International Code of Conduct for Private Security Service Providers (‘the Code’) by its Member companies. (…)

Two types of complaints may be reported to the Association:

Complaints from an individual or his or her representative alleging harm caused by an alleged Code violation by an ICoCA Member company; or
Complaints by an individual or a group with credible evidence of an alleged Code violation by an ICoCA Member company.

In either case the Association initiates a process to respond to the complaint:

Where an individual or his or her representative alleges harm caused by an alleged Code violation, the Association will work with the complainant and the ICoCA Member company to facilitate access to a fair and accessible grievance procedure that may offer an effective remedy. This may include the ICoCA Member company’s grievance procedure, the good offices of the Association, mediation services, or alternative mechanisms. At all times, the interests and priorities of the complainant will guide the choice of resolution. This process is guided by the Article 13 Procedures for Receiving and Processing Complaints.
Where an individual, group or their representatives has credible evidence of an alleged Code violation by an ICoCA Member company, the Association will address the complaint with the Member company. Such complaints may be brought by any group or individual whether or not harmed and may include alleged Code violations which have occurred or are about to occur. This may include anonymous complaints, complaints by whistle-blowers, or complaints by any other individuals or groups with credible evidence of alleged Code violations. This process is guided by the ICoCA’s Article 12 Procedures for Reporting, Monitoring and Assessing Performance and Compliance.

International Code of Conduct Association, Certification^{^[10]}

In order to apply for ICoCA Certification, Member companies need to be certified to one of the following ICoCA-recognized standards by an independent accredited certification body:

PSC1
ISO 28007
ISO 18788

PSC.1-2012 establishes a mechanism for private security service providers and their clients to provide demonstrable commitment, conformance, and accountability to the principles outlined in the International Code of Conduct for Private Security Service Providers and the Montreux Document.

ISO 18788:2015 provides a framework for establishing, implementing, operating, monitoring, reviewing, maintaining and improving the management of security operations. It provides the principles and requirements for a security operations management system; and provides a business and risk management framework for organizations conducting or contracting security operations and related activities.

ICRC, The Montreux Document^{^[11]}

Foreword

The presence of private military and security companies (PMSCs) in armed conflicts has traditionally drawn scant attention. In some ways this is surprising; as such, reliance on private entrepreneurs during war is nothing new. Such entrepreneurs have played a role in wars past and present, from ancient times to the conflicts of our day. But historians apparently considered them no more than an ancillary aspect of military affairs, their status and significance warranting no particular scrutiny.

This has now changed. Today, PMSCs are viewed in some quarters as an indispensable ingredient of military undertakings. Since the end of the Cold War, demand for PMSCs has increased to such an extent that there is now a lively PMSC industry offering an ever wider range of services, with some companies employing well beyond 10,000 staff. In terms of scale and scope of services involved, PMSCs today are a wholly new phenomenon. (…)

“PMSCs” are private business entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel.

Contracting states

1. Contracting States retain their obligations under international law, even if they contract PMSCs to perform certain activities. If they are occupying powers, they have an obligation to take all measures in their power to restore, and ensure, as far as possible, public order and safety, i.e. exercise vigilance in preventing violations of international humanitarian law and human rights law.

7. Although entering into contractual relations does not in itself engage the responsibility of Contracting States, the latter are responsible for violations of international humanitarian law, human rights law, or other rules of international law committed by PMSCs or their personnel where such violations are attributable to the Contracting State, consistent with customary international law, in particular if they are:

incorporated by the State into their regular armed forces in accordance with its domestic legislation;
members of organized armed forces, groups or units under a command responsible to the State;
empowered to exercise elements of governmental authority if they are acting in that capacity (i.e. are formally authorized by law or regulation to carry out functions normally conducted by organs of the State); or
in fact acting on the instructions of the State (i.e. the State has specifically instructed the private actor’s conduct) or under its direction or control (i.e. actual exercise of effective control by the State over a private actor’s conduct).

8. Contracting States have an obligation to provide reparations for violations of international humanitarian law and human rights law caused by wrongful conduct of the personnel of PMSCs when such conduct is attributable to the Contracting States in accordance with the customary international law of State responsibility

Home states

14. Home States have an obligation, within their power, to ensure respect for international humanitarian law by PMSCs of their nationality, in particular to:

disseminate, as widely as possible, the text of the Geneva Conventions and other relevant norms of international humanitarian law among PMSCs and their personnel;
not encourage or assist in, and take appropriate measures to prevent, any violations of international humanitarian law by personnel of PMSCs;
take measures to suppress violations of international humanitarian law committed by the personnel of PMSCs through appropriate means such as administrative or other regulatory measures as well as administrative, disciplinary or judicial sanctions, as appropriate.

ICRC, The Montreux Document in a Nutshell^{^[12]}

Does any international treaty mention the rights and obligations of PMSCs directly?

No international humanitarian law or human rights treaty mentions PMSCs specifically. The Montreux Document compiles those rules of international law that are most pertinent to PMSC operations, for easy reference.

Do PMSCs operate in a legal vacuum?

No, (…) In situations of armed conflict certain well-established rules and principles do clearly apply, namely under international humanitarian law, which regulates both the activities of PMSC staff and the responsibilities of the States that hire them. Also, human rights law imposes a number of obligations on States to protect persons against misconduct on the part of PMSCs. The Montreux Document explains these rules and principles.

What rules to apply to PMSCs and their personnel?

All individuals have to respect international humanitarian law in any activity related to an armed conflict. PMSC personnel are no exception. If they commit serious violations of humanitarian law, such as attacks against civilians or ill-treatment of detainees, these are war crimes that must be prosecuted by States. While companies as such have no obligations under international law, their employees do.

On the other hand, international humanitarian law and human rights law also protect the personnel of these companies. The protection they are entitled to will vary depending on the type of activity they engage in.

Who has the authority to prosecute suspected war criminals?

The State in which a contractor is deployed will usually have authority (jurisdiction), because the crime was committed on its territory. However, PMSC employees may have immunity under a bilateral agreement, such as a status-of-forces agreement; such agreements usually cover the armed forces of one State that are present in another State, but are sometimes extended to civilians accompanying the armed forces and to PMSCs. Also, States experiencing armed conflict do not always have the practical capacity to prosecute crimes if judicial systems are weakened.

Other States can also exercise jurisdiction if one of their nationals commits a crime abroad. However, States have not always established jurisdiction under domestic law for such cases. And, even if they have established jurisdiction, the fact that the crime was committed abroad in a situation of armed conflict can pose serious practical obstacles to criminal investigations, for instance when it comes to gathering evidence.

UN, Guiding Principles on Business and Human Rights^{^[13]}

Supporting business respect for human rights in conflict-affected areas

7. Because the risk of gross human rights abuses is heightened in conflict-affected areas, States should help ensure that business enterprises operating in those contexts are not involved with such abuses, including by:

Engaging at the earliest stage possible with business enterprises to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships;
Providing adequate assistance to business enterprises to assess and address the heightened risks of abuses, paying special attention to both gender-based and sexual violence;
Denying access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation;
Ensuring that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses.

Freeport-McMoran, Voluntary Principles on Security and Human Rights Report^{^[14]}

Company procedure to conduct security and human rights risk assessments

In 2015, for example, the Action Plans resulting from the TFM HRIA were integrated into the site’s risk register process. These included Action Plans relating to:

The responsible prevention of illegal on‐site mining and the mitigation of its impacts
The conduct of public security providers on the concession
The security of TFM’s employees and contractor employees

Site‐level risk registers are maintained by inter‐departmental teams at the operational level. The corporate sustainable development team and senior, cross‐functional corporate personnel monitor and reviews the site‐level registers, and maintain a corporate‐level risk register.

Anglo American, Voluntary Principles on Security and Human Rights Report^{^[15]}

Respect for human rights is at the heard of Anglo American’s values

Policies, Procedures and Related Activities

(…) Effective grievance mechanisms are a core element of our human rights approach and having a complaints and grievance procedure is mandatory across all our operations, which includes complaints related to security arrangements. There are various mechanisms in place through which security related human rights incidents are reported: ranging from incidents reported directly to the Security departments that are recorded on their electronic incident management systems to anonymous disclosure reports made via our “Speak Up” whistle-blowing mechanism.

ICRC, Business and International Humanitarian Law^{^[16]}

How are the operations of business enterprises protected against attacks under International Humanitarian Law?

Personnel of business enterprises – be they local or expatriate personnel or contractors – performing their usual business activities are generally considered civilians and therefore benefit from the protection against deliberate and indiscriminate attacks. However, international humanitarian law stipulates that civilians who directly participate in hostilities lose their protection from attack for the time that they are carrying out these activities. (…)

Business enterprises’ property such as factories, offices, vehicles, land and resources are considered civilian objects and thus also benefit from the protection against deliberate and indiscriminate attacks. However, if business property is used for military purposes, it becomes a military object and risks being legitimately attacked by parties to the conflict.

ENODO Rights, Assessment of the Porgera Remedy Framework^{^[17]}

This report concerns an ambitious corporate program to remedy egregious human rights violations. Barrick Gold conceived the Olgeta Meri Remedy Framework (the Framework) in response to devastating accounts of sexual violence committed by private security personnel at the Porgera gold mine in Papua New Guinea. The Guiding Principles on Business and Human Rights1 were the Framework’s touchstone. Barrick drew on them to design an elaborate operational-level grievance mechanism (OGM) to adjudicate sexual violence claims and determine individual remedies. Between 2012 and 2014, the Framework was implemented by two organizations independent of Barrick: the Porgera Remedy Framework Association (PRFA), an entity led by prominent Papua New Guinean women’s rights advocates; and Cardno Emerging Markets, an environmental, social and infrastructure consultancy. Ultimately, 119 women were awarded remedies—including cash compensation, medical care, counseling, school fees and business training—for sexual violence committed between 1990 and 2010.

The Framework’s design has been praised for its remarkable ambition and commitment to the Guiding Principles. At the same time, however, the Framework has been the flashpoint of local and international stakeholder controversy. Stakeholders have at various times raised concerns about the Framework’s alignment with the Guiding Principles; its respect for international human rights; its incorporation of local custom; its sensitivity to claimant wishes and the views of local human rights advocates; and its exclusive focus on sexual violence. More recently, Barrick has been accused of unfairness for agreeing to higher compensation than under the Framework for a group of women who rejected Framework remedies and threatened to sue the company in the United States. (…)

We have aimed with this assessment to evaluate the Framework objectively against an authoritative standard. This is not a report about our impressions of private actors’ responsibilities under public international law. We seek instead to identify exactly how and why the Framework did or did not align with the Guiding Principles. Mathematical certainty in this context is impossible. To minimize the risk of caprice we have privileged analytical structure and methodological transparency. We started by identifying the relevant Guiding Principles—GPs 22, 29 and 31. We then applied interpretive maxims from international law to unravel the practical meaning of each GP. The process resulted in 26 indicators. These serve as the assessment’s template by delineating the boundaries of acceptable decisions and outcomes. We assess the Framework against each indicator on two dimensions: design and implementation. (…)

The Framework was conceived with sincere and considered commitment to the Guiding Principles. Barrick’s design should be lauded for its rare ambition and meticulous attention to claimants’ rights. But implementation errors compromised the Framework’s actual performance. Claimants were thus exposed to a process which failed adequately to protect them and which they did not understand. In the end, successful claimants received remedies that were equitable, even generous, under international law. Nevertheless, many were left disaffected, stigmatized and abused. Responsibility for these results is not the Framework’s alone. It should be shared by international stakeholders whose errors of judgment and unwillingness to engage in good faith exacted a great toll on claimants. (…)

Concerted pressure on the Framework to issue cash compensation was even more pernicious for claimant security. Claimants themselves first applied the pressure. International stakeholders magnified it. In doing so, a few of these international stakeholders allied themselves with two local, male-run, self-styled human rights organizations whose interest in women, let alone in survivors of sexual violence, appears instrumental and recently minted. The credibility of both groups had previously been questioned by Human Rights Watch. (When discussing sexual violence, a prominent member of one of these groups callously joked, in front of two survivors, about gang rape by dogs.) The cash-oriented position of this alliance contravened the advice of every single expert in sexual violence in Papua New Guinea Barrick consulted when designing the Framework, including (i) representatives from UN Women, (ii) government officials, (iii) human rights defenders, and (iv) Porgeran women’s leaders. Each of these experts warned that women in Porgera are commodified subjects of a customary patriarchy. In this oppressive social context, they argued, cash compensation would largely benefit claimants’ male relatives at the expense of claimants themselves. (…)

The pressure from international stakeholders and claimants led the PRFA to make cash the lion’s share of all remedy packages. Successful claimants each ultimately received 50,000 Kina—8 times the national per capita income—in cash. The decision, notwithstanding its popularity, undermined the Framework’s ability to empower socio-economically disadvantaged and vulnerable women in Porgera. First, cash made every award fungible. Claimants became targets for avaricious relatives, and could be easily dispossessed by their families. Second, cash made every award easily comparable. The Framework could no longer tailor remedies to individual claimants without compromising the OGM’s legitimacy. Third, cash is easily dissipated. For claimants who retained their money, the PRFA could no longer patiently build their capacity to launch and run a business. All of these possibilities materialized. Claimants were immediately, often forcefully, dispossessed of their remedy; every award was virtually identical; and, what cash remained in claimants’ possession was quickly spent, with no durable benefit. (…)

Background (Cambodia)

BNG, Legal Monthly Law Update^{^[18]}

There are two types of private security. The first is created by private security company and the other is created internally by other entities for its own security purpose. The private security company shall request the approval from Ministry of Interior for permission for operating business. The Ministry shall have General Commissariat of National Police as security for reviewing the application. The Capital/Provincial Administration shall permit any entities to create its own security upon the request from Provincial/Capital Police Commissariat. Further this sub decree outlines the obligation of private security company and any private entities to fulfill and comply with the requirement. The administrative cost for this application shall be determined by Ministry of Interior and Ministry of Economic and Finance. In addition, the sub decree indicates the sanction if there is an offense committed by private security companies or other private entities. The sanction includes a written warning, business suspension, and permit cancellation. Further, it shall stop the security business and fine it in the amount of 20,000,000 riels to any private security company operating without permission from Ministry of Interior. Further, it stops the security activity created by other entities without permission from Capital/Provincial Administration. However, the private security company that runs their business, and other entities that already recruited their own security prior to this sub decree have to fulfill all the requirements within six months after this sub decree came into force.

Instruments (Cambodia)

Law on the General Statute of Military Personnel of the Armed Forces^{^[19]}

Article 25: It shall be forbidden for career military personnel”:

to undertake a private professional activity during hours of service;
to use the influence or power inherent in their positions to gain any interest or to violate citizens with threats;
to undertake an activity breaching the honor and integrity of the Royal Cambodian Armed Force
to be a member of a board of directors or to ensure the management of a private company.

Sub-Decree on Management of Private Security^{^[20]}

Article 5: Ministry of Interior has authority to grant permission for all private security company including agency and other security service.

Art. 12: Companies provide the private security service shall have following obligations:

Request permission for private security agencies to use equipment, material, techniques, means or animals for serving security activities
Comply with the General Commission of National Police on the security profession
Develop a joint plan of security protection activities and order for serving the customer
Develop a plan protecting location, property, and life of customer in each practical case
Request permission for training security agencies from the General Commission of National Police
Report monthly about private security company activities to the General Commission of National Police
Request for intervention from competence authority if necessary
Ensure the Social Security of the security agency following the law in force.
Provide the private security service in accordance with applicable laws
Cooperate in providing security agents following the request of the General Commission of National Police if necessary.

Oxfam, Extractive Industries Program in Cambodia^{^[21]}

The general lack of activity in the EI sector has also made it difficult for civil society to build a constituency of support amongst the Cambodian general public for good governance of the EI sector, since, as the Prime Minister’s adage suggests, there is very little EI to governor monitor at this point in time! Furthermore, the smaller operators that are extracting minerals are difficult to monitor given that they commonly employ local police and/or military as ‘security’. This is ironic, the lack of negative social and environmental impacts is denying the Program the opportunity to build up a constituency of support to monitor companies for their social and environmental impact!

It is important to note that the confused context described above is significantly impacted by the changed profile of EI companies operational in the (North East) NE, whereby the majority are small, almost invisible local operators whose governance and authority to operate is incredibly difficult to clarify. It is also common for mining sites to be difficult (and costly) to access, and for sites to be guarded by off duty police and military performing a ‘security guard’ role. Approaching mine sites therefore needs to be well planned to ensure safety, and to overcome the intimidatory nature of such an approach.

Global Witness, Sponsorship of Military Units by Private Business^{^[22]}

Global Witness is concerned that this policy officially sanctions an arrangement where businesses get military protection in return for financial backing. A number of the companies named as military sponsors already have track records of using the military to protect their business interests. For example, Global Witness’s 2009 report, Country for Sale, described how the Try Pheap Company used armed forces to guard a mine in Stung Treng Province.

Other high-profile Cambodian companies allegedly providing sponsorship include the Mong Reththy Group, the Ly Yong Phat Company, and the Chub Rubber Plantation Company.

The Ambassador of Cambodia to the United Kingdom and Scandinavia, Hor Nambora, said relying on some private funding of the military was necessary so that Cambodia’s armed forces could be rapidly modernized. This was particularly important in the light of recent tensions and border incidents involving neighboring Thailand.

NGO Forum on Cambodia, Statistical Analysis of Land Disputes in Cambodia^{^[23]}

Land disputes occurred in every one of the 12 Khan/Districts of Phnom Penh, representing 25 cases. Khan Dangkao has the highest number of disputes, with up to 6 cases emerging in six Sangkat/communes, followed by Ruessei Kaev where 5 disputes emerged in five Sangkat. It should be noted that 2 cases out of 6 cases emerged in Khan Dangkao where threats and violent acts were made by the defendant (company) and police, 10 people were detained, but were later released.

On 20 March 2011, company staff and military police had destroyed local villagers’ houses and crops. On 23 January 2014 the company’s guards comprising approximately 40 people, parachute trooper 911, and environment officers cleared rice fields and burned the houses of 35 people. They also blocked villagers not access to the area. However, a council of ministers intervened after the affected people were gathering to the block company road for 3 nights and 3 days. As a result, the Sor Chor Nor 315 was issued on 19 February, 2014 to suspend all company activities until the land dispute could be resolved. Furthermore, on 10 and 11November 2014, 40 company guards destroyed and burned 18 houses in Kean Kralanch village; forcing18 HHs to stay in the Pagoda while they were homeless.

Global Witness, The Corporate Empire of the Cambodia’s Ruling Family^[24]

SL Garment factory where workers claim they were told she was director general of the company. In 2013, 75 private security guards from the security wing of Seng Ny’s company, the Garuda Group, were sent into the factory to deal with striking workers. Trade Union officials accused the Garuda security guards of intimidating and using violence against striking workers. In April 2016, an investigation conducted by a conservation organisation and published in international media, alleged that SL Garments’ factory is burning illegally-logged timber taken from protected areas to heat water for washing machines and steam presses.

NGO Forum on Cambodia, Free, Prior and Informed Consent^{^[25]}

[re Development Process in Indigenous Peoples Communities of Mondulkiri and Ratanakiri Province]

Cambodia law requires that “military personnel be neutral in their functions and work activities” and are “strictly prohibited” from using “influence and power of their own functions to exploit any advantage or for intimidating, threatening and abusing the rights of the citizens”. To support the right of Indigenous People to freely decide whether to provide or withhold their consent, Government authorities at all levels must be vigilant to ensure no military personnel are ever present in a community subject to an economic development project, unless there is some unrelated emergency, such as a flood, war or other natural disaster that is in line with the public duties. Military personnel involvement in a private business operation is not service in line the public duties of Cambodian Royal Armed Forces personnel. Similar restrictions should be considered for police and company security personnel, unless there is no other alternative than to deploy these personnel to the area. Where companies inform Government authorities that they require the use of security personnel of any kind, companies should be obliged to abide by the ‘Voluntary Principles on Security and Human Rights’ (…)

When Mong Reththy began clearing the land in late 2010, around 50, mostly Cham Muslim, families (those at one end of the village affected most by this concession) blocked the main road. They reported that they decided not to go to the company office nearby because the police protected it. Soon after blocking the road, about 100 military police arrived in trucks to break up the protest. Three villagers were hit and bullets were fired into the air to intimidate them. However, the protesters remained for almost 24 hours, demanding that someone from the Provincial government came to meet them. “We waited 24 hours for a representative from the province to come with an announcement from the Council of Ministers that the company should stop.” The Deputy Provincial Governor explained that the national government had given authority back to the province to decide. While this happens, Mong Reththy has removed their machinery.

FIDH & Licadho, Report for the Human Rights Committee’s Task Force^{^[26]}

In the 1999 Concluding Observations, paragraph 11, the Committee noted that it was “alarmed at reports of killings by the security forces, other disappearances and deaths in custody, and at the failure of the State party to investigate fully all these allegations and to bring the perpetrators to justice.” In reality, the concerns expressed by the Committee in 1999 remain valid and pressing. In January 2014, police and military personnel shot and killed at least four persons using live ammunition at the Canadia Industrial Park in southwest Phnom Penh to suppress workers demonstrating for better wages and better working conditions at the garment and textile factories. An additional 38 people were hospitalized during the attack, 25 of whom suffered bullet wounds. One person, who a witness says was shot in the chest by security forces, remains missing. The government has failed to thoroughly and transparently investigate the deaths, injuries and disappearance that resulted from this violent suppression. Three weeks after the shooting, the government announced that an investigation into the violence had been completed. High-ranking officials have stated that the focus of investigation was to determine responsibility for initiating the violence not to determine responsibility for causing the death and injury of protesters. Moreover, the government has neglected to properly investigate the disappearance of a 16 year old boy who has not been seen since that day when the young garment worker lying on the ground with a bullet wound to his chest, according to witnesses.

Investigations by LICADHO show that these recent tragedies were not exceptional. In fact, they illustrate a pattern of use of excessive and lethal force which is followed by failure to investigate or punish. During 2012-2013, LICADHO monitors investigated 10 fatalities related to police or military action. Some examples include: On 12 November 2013, in Phnom Penh’s Stung Meanchey District, police fired indiscriminately at a crowd of striking factory workers, local residents, and bystanders, killing 49-year-old street vendor Eng Sokhum and injuring nine others. One man was paralyzed as a result of his injury. The government scoffed at demands for an investigation claiming that the violence was simply in the service of protecting the state. On 15 September 2013, at Kbal Thnal bridge, Phnom Penh, 29-year-old Mao Sok Chan was killed instantly when he was shot in the head. The killing took place following a day of post-election protests during which the authorities set up barbed wire road blocks throughout the city. Mao Sok Chan was killed as he tried to make his way home when police fired indiscriminately on a crowd of commuters, local residents and demonstrators caught up in the ensuing traffic chaos. There has been no credible investigation into the killing. On 2 April 2013, a local police officer shot dead a 28-year-old factory worker in Mes Thngak commune, Chantrea District, Svay Rieng Province. The police officer opened fire on a group of youths after a fight broke out at a wedding party. The victim’s relatives accepted a compensation of 2,800 USD from the perpetrator but after LICADHO sent a report to the prosecutor urging an investigation, the investigating judge charged the accused the police officer and initiated legal proceedings. On 23 January 2013, in Preak Hour commune, Takhmau District, Kandal Province, a 29-year-old worker was shot in the head and killed by a soldier who caught the victim fishing illegally in an area that he guarded. The suspect was arrested and charged with murder by the prosecutor, the case is being investigated by the investigating judge. So far, in nine out of the ten fatal cases there has been no credible prosecution or investigation.9 The most frequent outcome for a victim’s family was financial compensation of between 1,500 and 2,800 USD which was paid in return for agreement to withhold or withdraw a legal complaint.

Touch & Neef, Local Responses to Land Grabbing, Conflict and Displacement^{^[27]}

Most of cases occurred in areas with strong economic growth, were about agricultural land and involved powerful foreign investors, domestic political and economic elites and local authorities… Military and police forces have played an increasingly prominent role in land disputes and land evictions, siding with company owners and national, provincial and district authorities (…) In early February 2014, TUDG security guards, backed by soldiers, reportedly destroyed 42 homes in Ta Noun commune and two houses in Koh Sdech commune. This resulted in a protest by 100 villagers from Koh Kong’s Botum Sakor and Kiri Sakor districts, who asked for compensation and stayed outside the TUDG offices for two days. Subsequently, ministerial officials and provincial authorities convened a meeting with company representatives to urge the latter to increase their efforts in providing adequate infrastructure to relocated communities (The Phnom Penh Post, 28 March 2014). The head of the UN Office of the High Commissioner for Human Rights in Cambodia also visited the contested area and arranged meetings between villagers and TUDG, only days after villagers publicly accused the company of hiring soldiers to prevent villagers from planting paddy rice in their former land. The villagers expressed strong hopes for the support from the UN office, with one of them quoted as saying: ‘This company is like an elephant and we are like ants’. Shortly after the meetings, which had been reported as being productive, an incident occurred in which TUDG security guards severely injured a woman who was trying to plant rice on the land from which she had been evicted.

This is also true in the case of rural Cambodia, where dispossessed peasants have found no effective means to withstand the powerful coalition of government officials, concessionaries and the military involved in illegitimate and unethical land grabs on a momentous scale….More open forms of resistance, such as the interruption of road traffic and violent clashes with the concessionaire ’security personnel, have quashed quickly through the excessive, state-sanctioned use of the armed forces, resulting in an increasing fatalistic stance among large parts of the local peasantry, while smaller groups have continued their fight. In the Cambodian case, Polanyi’s double-movement takes the form of a continuous oscillation between forced commodification of natural resources by domestic and foreign elites on the one hand and the combination of overt and covert resistance strategies by the rural peasantry on the other. Yet, to date, the odds have been stacked against the Cambodian peasants, who, as a result of decades of conflict and unrest, lack organization across village boundaries. Their voices have been ignored by the home governments of the investors, which continue to regard Cambodia as a promising new haven of investment, trade and tourism, where the displacement and dispossession of the poor are deemed unavoidable collateral damage for the foreseeable future.

Hendrickson, Cambodia’s Security-Sector Reforms^{^[28]}

(…) the growing involvement of the police in business has undermined its primary protective function. In many cases, the police have become part of security problem. Under the protection of senior officers, Cambodia’s sex industry, for example, has burgeoned, expanding into Thailand and Vietnam.20 The state’s inability to pay adequately and hence to regulate the police is largely a consequence of budgetary pressures. As public confidence in law enforcement has declined, there has been a sharp rise in popular forms of justice, such as the public lynching of criminals. In the absence of effective rule of law, élite groups, businesses and individuals have become reliant on alternative sources of protection, including private security firms and small arms, while the most vulnerable sectors of society have been excluded from the new security arrangements.

Many soldiers who are still formally registered in the army works in the private sector, often for private security firms (which pay much higher salaries) involved in protecting the logging industry. Increasingly, police services have been privatized as well.

The government’s inability or unwillingness to control the army’s commercial activities was at the root of its 1997 quarrel with the IMF and contributes to the significant shortfall in state revenue today.

Spiegel, Land and ‘Space’ for Regulating Artisanal Mining in Cambodia^{^[29]}

To illustrate the complexity of “making space for artisanal mining,” the ASM site visited in Kratie, as shown in Figure1b, is located completely within a mining concession which itself is not only immediately adjacent to other mineral concessions, but entirely located within the land concession held by another company–an agribusiness. The agribusiness company (Green Island) was reportedly conducting teak logging in its concession, and interviews indicated that not only are artisanal miners in Sambo treated purely as “illegal”, but the artisanal miners are caught in wider cross-company feuds over space between these larger companies. Coming into contact with security forces of both companies was not uncommon in Sambo. Just as critical scholarship on land grabs and communities’ land use practices in Cambodia stresses the importance of rethinking the “illegality” of local land use practices from a more pro-poor and context-sensitive perspective, similar cautions are needed here, with historical complexities of resource extraction and resource disputes carefully considered. Some of Kratie’s Artisanal and Small-scale Mining (ASM) activity goes back decades as a family tradition, as in Sambo, and in such cases the term “illegal” would be a misleading oversimplification.

Land use conflicts have created difficulties for environmental planning, and conflicts between artisanal miners and security. While heterogeneous, ASM activities are generally defined in terms of their reliance on rudimentary mineral extraction technologies. These include companies based out of Australia, South Korea, Vietnam, China, Singapore and Thailand, for example, in addition to companies based in Cambodia. Forces of both large companies and state authorities have led to intensified public concern about the need for mining reforms. By unpacking the question “Is there space for regulating artisanal mining in Cambodia?” this article contributes to a growing body of scholarship on land conflicts and land grabbing in Cambodia, which has warned of the problems of eviction and forced relocation of marginalized rural communities. Particular focus has been on whether there is physical land space as well as political space for recognizing the rights of local and migrant Cambodian land users in the face of neoliberal policies that prioritize large-scale companies and that benefit a small segment of the population

Questions

What is the relationship between private security and public authorities when it comes to business operations in Cambodia?
Is the provision of security services adequately regulated in Cambodia and in line with international standards?
What are the common issues concerning provision of security in Cambodia? Explain and provide concrete examples.
What disciplinary measures can be taken against individuals and private security firms that fail to comply with the law?
Is corporate and industry self-regulation effective in Cambodia in the private security sector?

Main Aspects

Types of forced labour (modern slavery)
Forced labour in supply chains
Prison labour
Recruitment agencies
Corporate reports
Good business practices
Corrective actions in supply chains
Trade law measures regarding forced labour
Recruitment fees (‘employer pays’ principle)
Migrant workers
Risks in agriculture and sporting events

Background

ILO, Global Estimates of Modern Slavery: Forced Labour and Forced Marriage^{^[1]}

(…) modern slavery covers a set of specific legal concepts including forced labour, debt bondage, forced marriage, other slavery and slavery like practices, and human trafficking. Although modern slavery is not defined in law, it is used as an umbrella term that focuses attention on commonalities across these legal concepts. Essentially, it refers to situations of exploitation that a person cannot refuse or leave because of threats, violence, coercion, deception, and/or abuse of power.

Forced labour

Forced labour of adults is defined, for purposes of measurement, as work for which a person has not offered him or herself voluntarily (criterion of “involuntariness”) and which is performed under coercion (criterion of “menace of penalty”) applied by an employer or a third party. The coercion may take place during the worker’s recruitment process to force him or her to accept the job or, once the person is working, to force him or her to do tasks that were not part of what was agreed to at the time of recruitment or to prevent him or her from leaving the job.

This study examined different forms of forced labour, distinguishing between forced labour imposed by private actors (such as employers in private businesses) and that which was imposed by states. Of the 24.9 million victims of forced labour, 16 million were in the private economy, another 4.8 million were in forced sexual exploitation, and 4.1 million were in forced labour imposed by state authorities.

An estimated 16 million people were in forced labour in the private economy in 2016. More women than men are affected by privately imposed forced labour, with 9.2 million (57.6 per cent) female and 6.8 million (42.4 per cent) male. Half of these men and women (51 per cent) were in debt bondage, in which personal debt is used to forcibly obtain labour. This proportion rises above 70 per cent for adults who were forced to work in agriculture, domestic work, or manufacturing.

Among cases where the type of work was known, the largest share of adults who were in forced labour were domestic workers (24 per cent). This was followed by the construction (18 per cent), manufacturing (15 per cent), and agriculture and fishing (11 per cent) sectors.

Most victims of forced labour suffered multiple forms of coercion from employers or recruiters as a way of preventing them from being able to leave the situation. Nearly one-quarter of victims (24 per cent) had their wages withheld or were prevented from leaving by threats of non-payment of due wages. This was followed by threats of violence (17 per cent), acts of physical violence (16 per cent), and threats against family (12 per cent). For women, 7 per cent of victims reported acts of sexual violence.

There were an estimated 4.1 million people in state-imposed forced labour on average in 2016. They included citizens recruited by their state authorities to participate in agriculture or construction work for purposes of economic development, young military conscripts forced to perform work that was not of military nature, those forced to perform communal services that were not decided upon at the community level and do not benefit them, or prisoners forced to work against their will outside] the exceptions established by the ILO supervisory bodies.

Conclusions and way forward

Ending modern slavery will require a multi-faceted response that addresses the array of forces – economic, social, cultural, and legal – that contribute to vulnerability and enable abuses. (…)

Stronger social protection floors are necessary to offset the vulnerabilities that can push people into modern slavery. Extending labour rights in the informal economy – where modern slavery is most likely to occur – is needed to protect workers from exploitation. Given that a large share of modern slavery can be traced to migration, improved migration governance is vitally important to preventing forced labour and protecting victims.

Additionally, the risk and typology of modern slavery is strongly influenced by gender, and this must also be taken into account in developing policy responses. Addressing the root causes of debt bondage, a widespread means of coercion, is another necessary element of forced labour prevention, while improved victim identification is critical to extending protection to the vast majority of modern slavery victims who are currently unidentified or unattended. Finally, we know that much of modern slavery today occurs in contexts of state fragility, conflict, and crisis, pointing to the need to address the risk of modern slavery as part of humanitarian actions in these situations. (…)

International cooperation in addressing modern slavery is essential given its global and cross-border dimensions. Alliance 8.7, a multi-stakeholder partnership committed to achieving Target 8.7 of the Sustainable Development Goals, has an important role to play in this regard. The Global Estimates indicate that the majority of forced labour today exists in the private economy. This underscores the importance of partnering with the business community – alongside employers’ and workers’ organisations, and civil society organisations – to eradicate forced labour in supply chains and in the private economy more broadly. Cooperation should be strengthened between and among governments and with relevant international and regional organizations in areas such as labour law enforcement, criminal law enforcement, and the management of migration in order to prevent trafficking and to address forced labour across borders.

Instruments

ILO, Forced Labour Convention^{^[2]}

Article 2

1. For the purposes of this Convention the term forced or compulsory 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 voluntarily.

2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include–

any work or service exacted in virtue of compulsory military service laws for work of a purely military character;
any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;
any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;
any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;
minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.

Article 4

1. The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations. (…)

Article 13

1. The normal working hours of any person from whom forced or compulsory labour is exacted shall be the same as those prevailing in the case of voluntary labour(…)

Article 14

1. With the exception of the forced or compulsory labour provided for in Article 10 of this Convention, forced or compulsory labour of all kinds shall be remunerated in cash at rates not less than those prevailing for similar kinds of work either in the district in which the labour is employed or in the district from which the labour is recruited, whichever may be the higher. (…)

ILO, Abolition of Forced Labour Convention^{^[3]}

Article 1

Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour

as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
as a method of mobilising and using labour for purposes of economic development;
as a means of labour discipline;
as a punishment for having participated in strikes;
as a means of racial, social, national or religious discrimination.

ILO, Protocol to the Forced Labour Convention^{^[4]}

Article 2

The measures to be taken for the prevention of forced or compulsory labour shall include:

educating and informing people, especially those considered to be particularly vulnerable, in order to prevent their becoming victims of forced or compulsory labour;
educating and informing employers, in order to prevent their becoming involved in forced or compulsory labour practices; (…)
protecting persons, particularly migrant workers, from possible abusive and fraudulent practices during the recruitment and placement process;
supporting due diligence by both the public and private sectors to prevent and respond to risks of forced or compulsory labour; and
addressing the root causes and factors that heighten the risks of forced or compulsory labour.

Article 3

Each Member shall take effective measures for the identification, release, protection, recovery and rehabilitation of all victims of forced or compulsory labour, as well as the provision of other forms of assistance and support.

ILO, Forced Labour Recommendation^{^[5]}

8. Members should take measures to eliminate abuses and fraudulent practices by labour recruiters and employment agencies, such as:

eliminating the charging of recruitment fees to workers;
- requiring transparent contracts that clearly explain terms of employment and conditions of work;
- establishing adequate and accessible complaint mechanisms;
- imposing adequate penalties; and
- regulating or licensing these services.

ILO, Private Employment Agencies Convention^{^[6]}

Article 7

1. Private employment agencies shall not charge directly or indirectly, in whole or in part, any fees or costs to workers.

2. In the interest of the workers concerned, and after consulting the most representative organizations of employers and workers, the competent authority may authorize exceptions to the provisions of paragraph 1 above in respect of certain categories of workers, as well as specified types of services provided by private employment agencies.

3. A Member which has authorized exceptions under paragraph 2 above shall, in its reports under article 22 of the Constitution of the International Labour Organization, provide information on such exceptions and give the reasons therefor.

International Covenant on Civil and Political Rights^{^[7]}

Article 8

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

No one shall be required to perform forced or compulsory labour;
Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;
For the purpose of this paragraph the term “forced or compulsory labour” shall not include:

(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;

(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;

(iv) Any work or service which forms part of normal civil obligations.

‘Palermo Protocol’ to the UN Convention against Transnational Organized Crime^{^[8]}

Article 3: Use of terms

(a) “Trafficking in persons” shall mean 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. 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;

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

UN Office on Drugs and Crime, Elements of Human Trafficking^{^[9]}

In addition to the criminalization of trafficking, the Trafficking in Persons Protocol requires criminalization also of:

Attempts to commit a trafficking offence
Participation as an accomplice in such an offence
Organizing or directing others to commit trafficking.

UN, Sustainable Development Goals^{^[10]}

Goal 8. Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all

8.7 Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.

International Finance Corporation, Performance Standards^{^[11]}

Forced Labor

22. The client will not employ forced labor, which consists of any work or service not voluntarily performed that is exacted from an individual under threat of force or penalty. This covers any kind of involuntary or compulsory labor, such as indentured labor, bonded labor, or similar labor-contracting arrangements. The client will not employ trafficked persons.

Supply chain

27. Where there is a high risk of child labor or forced labor15 in the primary supply chain, the client will identify those risks consistent with paragraphs 21 and 22 above. If child labor or forced labor cases are identified, the client will take appropriate steps to remedy them. The client will monitor its primary supply chain on an ongoing basis in order to identify any significant changes in its supply chain and if new risks or incidents of child and/or forced labor are identified, the client will take appropriate steps to remedy them.

IFC Guidance Notes^{^[12]}

GN71. Clients need to avoid any type of physical or psychological coercion of workers, such as unnecessary restrictions on movement or physical punishment that create a situation whereby the worker feels compelled to work on a non-voluntary basis. Examples of such practices include locking workers in their workplace or worker housing. Clients may not retain worker’s identity documents, such as passports, or personal belongings; such actions may, in effect, amount to a forced labor-like situation. Workers should have access to their personal documents, including government-issued documents such as passports, at all times. Security personnel employed by the client may not be used to force or extract work from workers.

GN72. Clients should avoid practices that have the effect of creating unpayable debt obligations, such as excessive charges for travel, housing and meals as part of the employment relationship. Clients should also exercise diligence with regard to key contractors and subcontractors so that they do not knowingly benefit from practices that lead to bonded or indentured status of workers.

GN73. Clients should clearly recognize and communicate worker’s freedom of movement in employment contracts, including access to personal documents at all times. Contracts need to be provided in the workers’ language and need to be understood by them.

GN74. Trafficked persons and migrant workers who lack legal status in a country may be particularly vulnerable to forced labor situations, for example through debt bondage to “recruiters and brokers” who charge exorbitant fees to place workers. Clients should inquire about and address these issues with contractors who supply labor so that they do not benefit from these coercive practices. Diligence should also be exercised when the client’s project is situated in an export processing zone (EPZ) since EPZs are often exempt from national labor laws or have weak enforcement of such law. Migrant workers, particularly girls and young women, are one of the groups that have been identified as more vulnerable to human trafficking and forced labor. Several institutions are addressing issues of migrant vulnerability, including the ILO and the IOM.

GN75. There are circumstances where prison labor and labor from correctional facilities will be considered to be forced labor. If prisoners are working and a private company benefits, then work will only be acceptable where the prisoners have demonstrably volunteered for the work and they are paid at a rate which is equivalent to the prevailing market rate for that job. If prison labor comprises an important and irreplaceable part of the client’s supply chain, the client should provide a detailed review demonstrating that the proposed prison labor meets the above requirements.

UK, Modern Slavery Act^{^[13]}

Section 54: Transparency in supply chains

(1) A commercial organisation within subsection (2) must prepare a slavery and human trafficking statement for each financial year of the organisation. (…)

(4) A slavery and human trafficking statement for a financial year is

(a) a statement of the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place—

in any of its supply chains, and

(ii) in any part of its own business, or

(b) a statement that the organisation has taken no such steps.

(5) An organisation’s slavery and human trafficking statement may include information about

the organisation’s structure, its business and its supply chains;
its policies in relation to slavery and human trafficking;
its due diligence processes in relation to slavery and human trafficking in its business and supply chains;
the parts of its business and supply chains where there is a risk of slavery and human trafficking taking place, and the steps it has taken to assess and manage that risk;
its effectiveness in ensuring that slavery and human trafficking is not taking place in its business or supply chains, measured against such performance indicators as it considers appropriate;
the training about slavery and human trafficking available to its staff.

California, Transparency in Supply Chains Act^{^[14]}

The disclosure described in subdivision (a) shall, at a minimum, disclose to what extent, if any, that the retail seller or manufacturer does each of the following:

(1) Engages in verification of product supply chains to evaluate and address risks of human trafficking and slavery. The disclosure shall specify if the verification was not conducted by a third party.

(2) Conducts audits of suppliers to evaluate supplier compliance with company standards for trafficking and slavery in supply chains. The disclosure shall specify if the verification was not an independent, unannounced audit.

(3) Requires direct suppliers to certify that materials incorporated into the product comply with the laws regarding slavery and human trafficking of the country or countries in which they are doing business.

(4) Maintains internal accountability standards and procedures for employees or contractors failing to meet company standards regarding slavery and trafficking.

(5) Provides company employees and management, who have direct responsibility for supply chain management, training on human trafficking and slavery, particularly with respect to mitigating risks within the supply chains of products.

WTO, General Agreement on Tariffs and Trade^{^[15]}

GATT Article XX: General Exceptions

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (…)

(e) relating to the products of prison labour;

US, Tariff Act^{^[16]}

“All goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor under penal sanctions shall not be entitled to entry at any of the ports of the United States, and the importation thereof is hereby prohibited, and the Secretary of the Treasury is authorized and directed to prescribe such regulations as may be necessary for the enforcement of this provision.

“Forced labor”, as herein used, shall mean all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily.”

***

The Trade Facilitation and Trade Enforcement Act of 2015 was signed by the President on February 24, 2016. The law repealed the “consumptive demand” clause in 19 U.S.C. § 1307. The clause had allowed importation of certain forced labor-produced goods if the goods were not produced “in such quantities in the United States as to meet the consumptive demands of the United States.” Repeal of the consumptive demand exception should enhance CBP’s ability to prevent products made with forced labor from being imported into the United States.

Know the Chain, Forced Labor Action Compared^{^[17]}

In 2016, KnowTheChain benchmarked 60 large global companies from three high-risk sectors (information & communications technology, food & beverage, and apparel & footwear) on the transparency of their efforts to eradicate forced labor from their global supply chains. Each company received a score out of 100 possible points following an evaluation of the company’s public disclosure against seven themes: commitment and governance; traceability and risk assessment; purchasing practices; recruitment; worker voice; monitoring; and remedy.

Good Practice Examples

Seeking support from local NGOs to educate workers

Primark publishes its code of conduct in 39 languages, covering all major languages used at its production facilities. Primark requires its suppliers to display the code in the workplace in all relevant worker languages and to communicate the code to workers. In key sourcing countries, Primark works with local NGOs who facilitate and support groups of factory workers to create a series of posters to “empower […] workers to take ownership of the code”, support peer-to-peer learning, participatory methods, and performance and role-play programs related to the code.

Using technology to engage and empower supply chain workers

As part of its New Ventures pilot, Nike has developed apps to support workers both inside and outside of factories, for example with management communications, pay and leave management, grievance systems, and engagement programs. The pilot reached more than 30,000 workers at 10 footwear and apparel contract factories in three countries. For example, in China, Nike piloted a smartphone service at three factories which provided a direct communication channel between contract factory workers and management and provided workers with direct access to their personal human resources information, including salary, attendance, and annual leave. Workers at one factory reported a 25% improvement in the quality of the worker-management relationship over the course of the nine months’ pilot.

Reimbursing Recruitment Fees Reimbursing recruitment fees

Apple’s Supplier Code of Conduct requires that “[w]orkers shall not be required to pay employers’ or their agents’ recruitment fees or other similar fees to obtain their employment. If such fees are found to have been paid by workers, such fees shall be repaid to the worker. Supplier shall ensure that the third-party recruitment agencies it uses are compliant with the provisions of this Code and the law.” Apple discloses that, since 2008, “more than US $25.6 million in excessive recruitment fees have been repaid to foreign contract workers by suppliers as a result of our efforts.”

Cisco has adopted the EICC Code of Conduct, which states that “workers shall not be required to pay employers’ or agents’ recruitment fees or other related fees for their employment and if any such fees are found to have been paid by workers, such fees shall be repaid to the worker.” In 2014, Cisco discovered that factory workers were paying excessive recruitment fees at one of its supplier locations and secured the return of US $251,000 to impacted migrant workers.

Coca-Cola, Modern Slavery Statement^{^[18]}

Risks in Agriculture

One potential area of risk for forced labor and human trafficking is agriculture. The Company and local subsidiaries do not typically purchase agricultural ingredients directly from farms, nor does the Company own farms or plantations. But, as a major buyer of agricultural ingredients, such as sugar, the Company strives to ensure human rights are respected across these ingredient supply chains. In 2013, the Company has made a commitment to sustainably source 100% of priority agricultural ingredients, which range from sugarcane to tea to citrus fruits by 2020. To this end, in 2013 the Sustainable Agriculture Guiding Principles (“SAGP”) was published. The SAGP, which build on the Company’s Supplier Guiding Principles, prohibit forced labor and human trafficking.

Additionally, the Company determined to make it a goal to conduct country level studies (or “country studies”) on forced labor, child labor, and land rights looking at a priority crop, sugar, in top markets where sugar is sourced. The studies – which are research efforts, not audits – enable us to better understand the sugar sourcing supply chain and to give visibility on how suppliers and bottling partners are addressing these three risks which are considered higher social risk factors in agricultural supply chains. (…)

These country studies are not an objective in and of themselves. It was expected, setting out that this would be a journey that would require significant collaboration with suppliers, bottlers and key stakeholders to carefully examine human rights risks and to improve efforts to prevent forced labor and human trafficking in the operations and supply chain. These studies were an important tool for facilitating an internal and external conversation on human rights impacts, including the risk of forced labor and human trafficking, deeper in the supply chain.

Mega-Sporting Events

Another area of identified risk related to forced labor in the value chain is the sponsorship of megasporting events. Mega-sporting events, like the Olympics or World Cup, inspire athletes and fans alike, but have in some instances also been associated with human rights challenges. As sponsors of such events, the Company advocates for transparent and accountable administration that respects the human rights of all those involved – from those building event venues to the athletes themselves. (…) Qatar, the site of an upcoming FIFA World Cup in 2022, has faced concerns about human rights issues, particularly with regards to migrant workers. The Coca-Cola Company has operations in Qatar, including a bottling plant which the Company hopes can be a positive example for responsible business conduct in the region. It is policy that employees retain possession of their passports and identification papers and personal lockers are provided to ensure safe-keeping. Salaries are paid directly to workers’ bank accounts which reduces opportunity for third parties to take deductions from workers’ salaries. Quarterly payroll reviews are conducted by management for contingent workers to ensure adherence to local regulations. Responsible recruitment as well as employee well-being programs like summer hydration practices, first aid and safety training and pro-active attempts to get visas for female workers resulted in The Coca-Cola Bottling Company being named one of the Best Employers within the Gulf Cooperation Council (GCC) for best recruitment practices and employee engagement in November 2016.

Global Reporting Initiative, Sustainability Reporting Guidelines^[19]

The GRI Sustainability Reporting Guidelines (the Guidelines) offer Reporting Principles, Standard Disclosures and an Implementation Manual for the preparation of sustainability reports by organizations, regardless of their size, sector or location.

Forced or Compulsory Labor

Operations and suppliers identified as having significant risk for incidents of forced or compulsory labor, and measures to contribute to the elimination of all forms of forced or compulsory labor

a. Report operations and suppliers considered to have significant risk for incidents of forced or compulsory labor either in terms of:

Type of operation (such as manufacturing plant) and supplier
Countries or geographical areas with operations and suppliers considered at risk

b. Report measures taken by the organization in the reporting period intended to contribute to the elimination of all forms of forced or compulsory labor.

Responsible Recruitment Gateway, Leadership Group for Responsible Recruitment^{^[20]}

The Leadership Group for Responsible Recruitment is a collaboration between leading companies and expert organisations to drive positive change in the way that migrant workers are recruited. Together, our aim is bold – the total eradication of fees being charged to workers to secure employment.

Aims

The Leadership Group for Responsible Recruitment aims to drive positive change in the recruitment industry with three objectives:

Create Demand for responsible recruitment by raising awareness about the positive benefits of ethical practices and developing tools to help companies implement the Employer Pays Principle
Increase Supply of ethically sourced labour by creating an enabling environment and supporting the development and implementation of systems to identify and use ethical recruitment agencies
Advocate for improved protection for migrant workers by brokering dialogue to promote the effective regulation and enforcement of the recruitment industry

The Employer Pays Principle^[21]

Reflecting the Dhaka Principles for Migration with Dignity, the Employer Pays Principle is a commitment to ensure that no worker should pay for a job and is increasingly being adopted by companies across a range of industry sectors and locations.

Launched in May 2016, the Employer Pays Principle states that: No worker should pay for a job – the costs of recruitment should be borne not by the worker but by the employer.

Adoption of the Employer Pays Principle across all industries is fundamental to combatting exploitation, forced labour and trafficking of migrant workers in global supply chains and represents an important step in achieving the UN Sustainable Development Goal of decent work for all.

Six Steps to Responsible Recruitment: Implementing the Employer Pays Principle^{^[22]}

Step 3: Integrate and act on the risk assessments

Be systematic:

Involve staff whose work raises potential impacts on workers in finding ways to address them.
Identify ways to share learning across different operating sites / functions / departments about effective prevention and mitigation options.

Prioritise your responses:

Prioritise responses to assessment findings based on those that will result in the most severe impacts to workers.
Determine severity according to scale (how grave the impact is), scope (how many workers are affected) and whether it can be effectively remedied.

Understand your responsibility

A company’s responsibility to act is determined by its involvement in a human rights risk or impact, not its ability to influence a situation.
Where at risk of causing an impact directly, take the necessary steps to prevent it. For example, require recruitment agents to itemise, including with receipts, all expenses they incur in the recruitment process, and provide workers with receipts for any expenses they incur in their recruitment.
Where at risk of contributing to an impact, take the necessary steps to avoid that contribution. Use your leverage with the party causing the impact to mitigate any remaining risk. For example, in the absence of ethical recruitment agencies in a country, undertake as much direct recruitment of migrant workers as possible.
Where at risk of an impact on a migrant worker being directly linked to your company’s operations, products or services through a business relationship, use your leverage with the party at cause to mitigate the risks.

Create and use leverage with business relationships:

In each situation, think about the many forms leverage can take, whether via traditional commercial leverage, leverage through collective action with business partners and peers, or leverage via bilateral or multi-stakeholder engagement and collaboration with governments, civil society and other stakeholders.
Initial steps to identify and build leverage could include:
Build into new supplier agreements the expectation for them to prevent, mitigate and remediate recruitment-related impacts on migrant workers.
Establish a clear labour cost structure with suppliers and / or recruitment and employment agents.
Identify key personnel at suppliers responsible for hiring decisions and gauge their willingness and ability to align with the EPP policy.
Where possible, reduce the number of recruitment agencies with which your supplier engages to enable more effective monitoring and targeting of training resources.
Consider carefully whether to terminate a relationship where fees and other impacts on migrant workers caused by the third party. It may be beneficial to continue to work within the business relationship to remediate the impacts and build their capacity to meet the Employer Pays Principle in practice.

ILO, Fair Recruitment Initiative^{^[23]}

Partners

This multi-stakeholder initiative is implemented in close collaboration with governments, representative employers’ and workers’ organizations, the private sector and other key partners. (…) ILO social partners and their affiliates play a central role in the design and implementation of this initiative, including International Trade Union Confederation (ITUC) and affiliates, and the International Organisation of Employers (IOE) and affiliates, in particular the World Employment Confederation (WEC).

The Context^[24]

In today’s globalized economy, workers are increasingly looking for job opportunities beyond their home country in search of decent working conditions. In addition, millions of workers migrate internally. Public and private employment agencies, when appropriately regulated, play an important role in the efficient and equitable functioning of labour markets.

However, concerns have been raised about the growing role of unscrupulous employment agencies, informal labour intermediaries and other operators acting outside the legal and regulatory framework that prey especially on low-skilled workers. Reported abuses involve one or more of the following: deception about the nature and conditions of work; retention of passports; deposits and illegal wage deductions; debt bondage linked to repayment of recruitment fees; threats if workers want to leave their employers, coupled with fears of subsequent expulsion from a country. A combination of these abuses can amount to human trafficking and forced labour. Despite the existence of international labour standards relating to recruitment, national laws and their enforcement often fall short of protecting the rights of workers, and migrant workers in particular.

The Response

In response to those challenges, the International Labour Organization (ILO) launched in 2014 a global “Fair Recruitment Initiative” to:

help prevent human trafficking and forced labour
protect the rights of workers, including migrant workers, from abusive and fraudulent practices during the recruitment and placement process (including pre-selection, selection, transportation, placement and safe return)
reduce the cost of labour migration and enhance development outcomes for migrant workers and their families, as well as for countries of origin and destination

Human Rights Watch, Hidden Chains – Forced Labor in Thailand’s Fishing Industry^{^[25]}

This report documents forced labor and other human rights abuses in the Thai fishing sector. It identifies poor working conditions, recruitment processes, terms of employment, and industry practices that put already vulnerable migrant workers into abusive situations—and often keep them there. It assesses government efforts to address labor rights violations and other mistreatment of migrant fishers. It also highlights improvements and shortcomings in Thai law and the operational practice of frontline agencies that allow victims of forced labor to fall through gaps in existing prevention and protection frameworks…

Many of the human rights problems in Thailand’s fishing industry are common to migrant workers in sectors throughout Thailand’s economy, whose exploitation is aggravated, and sometimes caused, by the government’s haphazard national policies on labor migration.

In its migration policies, the Thai government has sought to balance negative public attitudes about migration and alleged national security concerns about migrants with strong economic demand for low-cost labor. The result has been contradictory and inconsistent migration policymaking. Its current orientation toward stronger controls and crackdowns on irregular migration have proven ineffective and merely pushed migrants toward more expensive and less safe border crossings, increasing profits for smugglers and traffickers.

ILO, How Policy and Technology Can Impact Work in the Fishing Industry^{^[26]}

Background

In 2014, international media reports detailed extensive labour abuses in Thailand’s fishing industry. In the same year, the U.S. State Department, in its Human Trafficking Report, downgraded Thailand to the bottom rung: Tier 3. In 2015, the European Commission (EC) issued Thailand a “yellow card” for illegal, unregistered, and unregulated (IUU) fishing practices.

With the threat of sanctions against its fishing industry a possibility, Thailand proceeded to implement measures aimed at reducing and eliminating abuses in the fishing and seafood sectors, and to conform with the International Labour Organization’s (ILO) Work in Fishing Convention (No. 188, 2007). In January 2019, Thailand ratified the Work in Fishing Convention (No. 188, 2007), and became the first country in Asia to ratify the Convention, strengthening minimum labour standards for fishers employed on vessels at sea.

These measures have met with some success. In June 2018, the U.S. State Department upgraded Thailand in its human trafficking report from a “watch list” to Tier 2, and in 2019, the EC lifted the yellow card after judging that Thailand had successfully addressed gaps in its fisheries legal framework and its monitoring and surveillance systems. (…)

The Thai government encoded these standards and more in the Protection of Labourers in Fishing Act, which came into force in November 2019. Some measures were already part of Thai labour laws, such as minimum working age, medical insurance, maximum working hours and rest periods, written work agreement, regular pay (via bank account transfer for fishers), safety equipment for work, and compensation for work-related deaths or injuries. New measures in the Act include annual health check-ups, repatriation from a foreign port to Thailand, and social security-type benefits.

Understanding Employer Demands for Labour

For the employers interviewed for this report, five key elements were said to influence their demands for migrant workers.

A perceived labour deficit in the fishing sector;
Cost of wages;
Necessity of paying advances to employees;
Costs associated with compliance; and
Costs of capital investment.

Conclusions and Recommendations

1. The Thai fishing industry fleet has failed in the aggregate to invest in labour-saving technologies. This puts more pressure on an already dysfunctional labour market.

The Thai commercial fishing fleet is overdue for modernisation to improve labour-, energy-, and cost-efficiency. Modest investments in power-hauling equipment reduce the size of fishing crews and thereby help bring the labour market into balance. In other sectors, reducing the workforce can produce conflict between workers and employers — and their representative organisations — but the fishing industry, with poor working conditions and low wages, will continue to face chronic labour shortages. Long-term solutions that reduce demand for new workers, and improve working conditions and wages can satisfy in the aggregate both workers and vessel owners.

2. There is a lack of financial credit to the fishing industry. Lenders want guarantees to re-enter an inherently risky industry.

Thai commercial bank lending to vessel owners has fallen to near zero with the global exposure of labour abuses in Thai fishing and the subsequent uncertainty in the industry. A programme of reconfiguration will prompt threshold questions from vessel owners: “Who will lend me the money?” and “What will happen if I cannot pay it back?” Commercial lenders will ask, “Which institutions will guarantee loans to qualified borrowers?” and “Will the proposed lending programme be big enough to make development and marketing of a new lending product for vessels worthwhile for the bank?”

3. There is a wide-ranging absence of high-quality information.

The interviews conducted for this report all pointed to the need for more effective, regular, and public communication between governments (both Thai and foreign), vessel owners, recruitment agents, and migrant workers. (…)

Jokinen & Ollus, Exploitation of Migrant Workers^{^[27]}

Labour trafficking – or trafficking for the purposes of forced labour – seems to be on the increase globally (…). The increasingly mobile work force, freedom of movement within the European Union and the global economic disparities, act as driving factors for high levels of migrants who, without adequate protection from illegal recruitment practices and the abuse by unscrupulous employers, risk becoming victims of trafficking. In many labour intensive sectors, migrant labour is considered a cheap alternative to domestic labour. Employers may look for cost-saving measures by re-organising the division of labour, e.g. through increasing the use of temporary and part-time contracts, and by demanding increased flexibility from the workers. Problems occur when this creates an unequal labour market, where those most vulnerable have to accept work on any terms. At worst, migrant workers may become victims of trafficking for forced labour.

Trafficking for forced labour can be regarded as the most severe form of exploitation, while more subtle forms of coercion represent less serious forms of exploitation. These less serious forms of exploitation can lead up to more serious acts and create conditions where trafficking for forced labour may take place. We argue that trafficking for forced labour takes place precisely in this context of exploitation of migrant labour in general. Therefore, in order for us to uncover and understand labour trafficking, we must scrutinize the broader context of exploitation of migrant workers. (…) Forced labour does not necessarily entail trafficking. Forced labour may exist without trafficking, but many jurisdictions require that for the crime of labour trafficking to be fulfilled, there must be exploitation that amounts to forced labour (or equivalent exploitation). Trafficking for forced labour hence exists where trafficking in human beings and forced labour overlap. Overall, both crimes can be seen to take place in the context of exploitation of (mainly migrant) labour.

Indicators of forced labour include physical or sexual violence or the threat of such violence, restriction of movement of the worker, debt bondage or bonded labour, withholding wages or refusing to pay the worker at all, retention of passports and identity documents, and the threat of denunciation to the authorities. In addition, trafficking in human beings can be analysed also based on whether forms of deception or coercion were used during recruitment or transportation, whether the recruitment took place by abusing the person’s vulnerability, whether exploitative conditions prevailed at work, and whether coercion or abuse of the vulnerability of the migrant worker occurred at destination.

Trafficking for forced labour and labour exploitation in Sweden: Examples from the Restaurant and the Berry Industries

Among the workers who have entered Sweden within the framework of the new policy, the situation of seasonal berry-pickers from Asian and East European countries, in particular, has been emphasized for the exploitative conditions faced by the workers. Forms of abuse include the non-payment of wages or very low wages, excessive working days and various forms of coercion such as physical force and threats. The restaurant industry, which also employs a high number of low-skilled migrant workers, is characterized by similar working conditions of low wages and long working hours. (…)

Challenges

The report highlights a number of challenges in preventing and combating migrant labour exploitation.

A first challenge stems from Swedish labour immigration policy, according to which work permits for non-EU citizens are tied to the employers. That is, labour immigrants must remain with the same employer during the first two years, or find a new employer within three months, and in the same occupation during the first four years, or else they can be deported from Sweden. Arguably, this requirement places the employees in a situation of dependency towards their employer. Workers who are exploited by unscrupulous employers may be reluctant to complain for fear of losing their employment and thereby their right of residence in Sweden.

The second challenge stems from the fact that many migrants who are subject to exploitation do not always consider themselves to be victims. Working in

Sweden often represents an opportunity to escape poor economic circumstances and improve the living standard of themselves and their families. Therefore, many labour immigrants are willing to accept poorer working conditions than those enjoyed by the local population.

A third challenge relates to the lack of experience in regard to trafficking for forced labour in Sweden. The police, prosecutors and judges in Sweden may fail to detect cases of forced labour due to a lack of knowledge about the crime. Additionally, the concept of forced labour is rather complex – the distinction between a voluntary and a forced employment situation is difficult to define – and the legislation lacks a clear definition. The low number of convictions for trafficking for forced labour in Sweden may also be a result of the courts’ tendency to compare the working conditions of the victims with the prevailing conditions in the home country, considering that they do not experience worse conditions in Sweden than those they had at home.

A fourth challenge, related to the berry industry, highlights the lack of accountability of the various economic actors involved. Unregulated workers from Europe are considered to be self-employed and ‘free movers’, and regulated workers from Asia are formally employed by Asian recruitment agencies, leading to a situation where the actors in Sweden – berry buyers and merchants – do not need to assume the full responsibility for the pickers’ labour conditions.

Raj-Reichert, The Powers of a Social Auditor in a Global Production Network^{^[28]}

The Verite´ report (2014) was damning and posed risks to industry for three reasons. First, the report concluded over a quarter of electronics workers, the majority foreign workers, in Malaysia to be in situations of forced labour. Investigations comprising undercover interviews with 501 workers (87% foreign workers) in over 100 factories throughout Malaysia found 28% of all workers (32% among foreign workers) in forced labour. Using guidelines set by the International Labour Organisation (ILO), the report focused on six aspects of forced labour: (1) high recruitment fees resulting in debt bondage through over-time work and wage deductions; (2) withholding foreign worker passports by labour agents; (3) restricting movement and instituting fear and insecurity by employers; (4) prohibiting foreign workers from breaking employment contracts, changing employers or returning home before the end of their contracts; (5) deceptive recruitment on wages or type of work and (6) excessive dependency by foreign workers on labour agents for housing, medical care, food, transport, legal status, employment status and other welfare issues. Although the names of firms, their factory locations or the outsourcing firms to suppliers were not revealed, because forced labour was found to be ‘widespread’ and in different locations, factory sizes and production lines of goods and components, the findings casted a wide net implicating many types of firms from brands to first and lower tier suppliers operating directly or outsourcing in Malaysia. ‘What was most shocking to us was that this was happening in modern facilities, some of which were owned and operated by major international brands. This work has led us to conclude that forced labour in this industry is systemic and that every company operating in this sector in Malaysia faces a high risk of forced labour in their operations.’

The Verite´ report was the most comprehensive on the details of forced labour in the electronics industry thus far. Before the report forced labour was rarely publicly associated with the electronics industry. It was more often reported in lower value added or lower cost industries, such as agriculture, fishing, domestic work, mining and garments. Verite´’s report, however, showed forced labour occurring in a high value added and technologically advanced industry. It was not hidden away but occurred in sprawling modern EPZs in a middle-income country where hi-tech factories, surrounded by electronic gates, barbed-wires, metal detectors and security guards were monitored and audited multiple times a year by social auditors and government agencies. (…)

Verite´, whose exposure of forced labour in Malaysian electronics subsequently changed labour governance practices in the electronics industry, mobilised power resources of credible information to exercise powers of expert authority and acts of dissimulation across various networked relationships in the GPN [global production networks]. This paper puts forth a multi-power framework of analysis to understand the micro-politics of GPNs. (…)

Verite´ straddles a hybrid SAO [social auditing organisations] profile of firm and extra-firm characteristics which contributes to its ability to hold different types of relationships in the GPN, harness different power resources and exercise different modes of relational power. It is emphasised that actors in GPNs have multiple relationships and therefore need to be understood for their interactions and outcomes, through conflicts, tensions and cooperation, to reveal the micro-politics of GPNs. Thus, the second contribution is a multi-power analysis which examined overt and covert modes of power across Verite´’s different sets of networked relationships—namely the powers of expert authority and dissimulation—which brought about changes to labour governance practices by industry actors. Verite´ did so by mobilising power resources of credible information on forced labour in factories through its subcontractor relationships with local auditors. Its various subcontracted ties to the US federal government to investigate working conditions in Malaysian electronics and advising on forthcoming regulatory amendments aimed at banning forced labour in federal supply chains gave Verite´ the power resource of legitimacy. Both power resources were necessary for exercising the power of expert authority over the electronics industry’s conduct of self-governing practices. More covertly, Verite´ simultaneously exercised acts of dissimulation through its confidential client–auditor relationships with global lead firms for access to factory workers in order to gain credible information on working conditions through its investigations.

Hence, its hybrid profile helped Verite´ gain legitimacy and credibility as an NGO and a quasi-state actor (extra-firm actor characteristics) while its business client relationships as an auditor (firm actor characteristics) is tied to its exercise of power vis-a`-vis global lead firms and the RBA. The case study illustrates how powers to change practices in a GPN can be a complex process involving different resources of power and the simultaneous exercise of different modes of relational power across varying sets of relationships.

Davidson, New Slavery and Human Trafficking^{^[29]}

For almost a decade now, politicians, journalists, NGO workers and even some academics have been telling us that human trafficking is a vastly profitable global criminal business that claims millions of victims at any given moment in time, and that represents one of the most serious human rights problem in the contemporary world. ‘Trafficking’ is commonly described as a modern slave trade, and anti-trafficking campaigners call on us to restate our opposition to slavery and reaffirm our commitment to the defence of human rights and freedom. These are rousing and apparently politically progressive calls. Yet, as a number of critical scholars and activists have noted, the figure of the ‘trafficking victim’, especially of the ‘trafficked sex slave’ has actually been worked to most effect in the service of extremely conservative moral agendas on prostitution, gender and sexuality and in support of more restrictive immigration policies and tighter border controls (…).

(…) problems arises from the fact that ‘trafficking’, like slavery, is a concept that requires us to think in terms of ‘inappropriate’ exploitation and of ‘force’. And, as Moravcsik points out in relation to slavery, these are slippery notions: ‘What constitutes inappropriate economic exploitation depends partly on what alternatives were or could have been envisaged within a given situation … [and similarly] what counts as force … and what restrictions any society might have to invoke under certain circumstances are left to be determined in context.’

‘Trafficking’ is an umbrella term for a process that can lead to a variety of outcomes. In theory, it intersects with an array of other markets, institutions and practices (labour markets, prostitution, marriage, benefit fraud, organ trading, child adoption, independent child migration to name but a few), some of which may be socially tolerated and legally regulated, others of which may be illegal, stigmatized and/or socially contested. To ring fence ‘trafficking’ would therefore require us to make a judgement about what constitutes appropriate and inappropriate exploitation, and what counts as force, in a huge number of vastly different contexts. Throw in the fact that social norms pertaining to these markets, institutions and practices differ from country to country, and the task looks even more hopeless.

The enormity of these problems can be illustrated by looking at one of the possible outcomes of ‘trafficking’ listed in the protocol, namely slavery. In a world where slavery is nowhere legally recognized, so that nobody is actually formally assigned the legal status of slave, what is slavery and who is a slave? Anti-slavery activists who have played an important role in promulgating the ‘trafficking as modern slavery’ discourse, hold that new slavery can be distinguished from other forms of oppression and labour exploitation that are widespread in the contemporary world through reference to its three essential elements. First, is its involuntary nature, in the sense that the slave cannot ‘walk away from the situation they’re in and someone’s controlling their free will’. Second, is ‘severe economic exploitation’, which Bales describes as the absence of a wage, or payment of wages in a form that either covers only the most basic necessities for daily survival, or that can be clawed back by the employer. Third, there is violence or the prospect of violence. (…)

Talk of ‘trafficking as modern slavery’ generates an illusion of political consensus, for nobody is in favour of slavery. Indeed, ‘the fight against slavery is one of the very few human rights imperatives that attracts no principled dissent’. Yet, if ‘modern slavery’ does not exist as a legal status or a prior category, but must be defined instead through reference to judgements about where, on a continuum and in different contexts, ‘appropriate’ exploitation ends and ‘inappropriate’ exploitation begins, then it is in reality a hugely contentious and highly political concept. (…) A political space, in Rancière’s terms, opens up and with it the potential for political alliances between those (both migrant and non-migrant) who share an interest in transforming existing social and legal constructions of ‘freedom’ and ‘restriction’. Because discourse on ‘trafficking as modern slavery’ defuses this potential, deconstructing it is an urgent political task.

Background (Cambodia)

Parliamentary Institute of Policy, Migration, Trafficking & Sexual Exploitation^[30]

All provinces in Cambodia are sources of human trafficking as reported by previous studies and happens both inside and outside Cambodia. Trafficking within Cambodia is often for the purpose of commercial sexual exploitation in respect of which young women have been transported to work in brothels, massage parlors or karaoke bars in some urban cities such as Phnom Penh, Sihanoukville, Poipet, Koh Kong or Siem Reap. Sexual exploitation of street children, especially by tourists, has also been reported. The data of NCCT [National Committee for Counter Trafficking in Persons] in 2016 showed that 524 businesses operating in Cambodia, had been targeted, of which 71 were convicted of human and sexual trafficking.

Human trafficking outside of Cambodia is often in the form of: i) trafficking for marriage; ii) forced labor on fishing vessels and domestic work; and iii) forced begging.

Trafficking for marriage: Trafficking for marriage has happened to some Cambodian women who entered into a brokered marriage with Chinese, Korean or Taiwanese men. These women have sought a better life by marrying foreign men, but they have ended up being abused by their husbands or families-in-law and, in the worst scenario, they have been forced into prostitution. Some women have been promised a factory job, but have been deceived and forced into marriage against their will. In 2016, Chinese authorities reported that about 7,000 Cambodian women had been married to Chinese men, but only 100 were reported to have done so legally. The report of NCCT showed there were 1,541 legal marriages between Cambodians and foreigners in 2016.

Forced labor on fishing vessels: Forced labor has become worse for migrant workers who are engaged in the fishing industry in countries like Thailand, Malaysia, Indonesia, Somalia, Vietnam and Taiwan. These migrant workers can be forced to work from 16 to 18 hours a day on fishing vessels with no way of escape. (…) According to the ILO Bangkok, from June to October 2014, more than 22,000 Cambodians had registered to work in the fishing industry in Thailand.

Forced domestic labor: Forced domestic labor is another crime. Cambodian workers were reported to have been trafficked to Malaysia, the Middle East and Singapore to work as nannies, maids and carers. Even though they received pay three times higher than in Cambodia, these migrant workers suffered serious abuse, and were often reported to have mental problems upon returning home. In 2015, 8,000 Cambodian domestic workers were working in Malaysia.

Forced begging: Cambodian children are reported to be trafficked for begging in neighboring countries like Thailand and Vietnam. In 2014, about 80 percent of child beggars in Thailand were Cambodian.

Trafficking for commercial sexual exploitation: Women used to be considered as the sole victims in the sex industry, but recently boys and young men have also fallen into the victim category. Street children, especially boys, are often identified as the victims of sexual abuse by foreign nationals. Young Vietnamese girls have also been reported to be trafficked to brothels in Cambodia. The data of NCCT showed that 298 victims of sex trafficking were rescued in Cambodia in 2016 and children and minors were among those victims.

NCCT, Guidelines for Identification of Victims of Human Trafficking^{^[31]}

Why does a victim of human trafficking and sexual exploitation hesitate to be identified?

(…) In some other cases, the perpetrators may be those who have a close relationship with the victim such as relatives, friends, romantic partners or persons who have authority over them. Victims often feel ashamed (…) Some of the victims committed crimes in the process of being trafficked, which makes them worried about potential punishment or prosecution for such offences. Victims are often concerned about their safety and potential further loss if they have to be involved in the official complaint and prosecution process. This process requires money and time with little hope of successful prosecution and/or compensation for victims. (…) Consequently, most of the victims request only emergency assistance or rehabilitation or safe living options rather than filing complaints against the perpetrators and other accomplices. (…)

Instruments (Cambodia)

Constitution of the Kingdom of Cambodia^{^[32]}

Article 36: Khmer citizens of both sexes have the right to choose any employment according to their ability and to the needs of the society. (…)

Article 46: Human trafficking, exploitation of prostitution and obscenities which affect the dignity of women shall be prohibited. (…)

Labor Law^{^[33]}

Article 1: This law governs relations between employers and workers resulting from employment contracts to be performed within the territory of the Kingdom of Cambodia…

Article 15: Forced or compulsory labor is absolutely forbidden in conformity with the International Convention No. 29 on the forced or compulsory labor, adopted on June 28, 1930 by the International Labor Organization and ratified by the Kingdom of Cambodia on February 24, 1969. This article applies to everyone, including domestics or household servants and all workers in agricultural enterprises or businesses.

Article 16: Hiring of people for work to pay off debts is forbidden.

Law on Suppression of Human Trafficking and Sexual Exploitation^{^[34]}

Article 1: Objective of this Law

The objective of this law is to suppress the acts of human trafficking and sexual exploitation in order to protect the rights and dignity of human beings, to improve the health and welfare of citizens, to preserve and enhance good national customs, and to implement the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, or other international instruments or agreements with regard to human trafficking that the Kingdom of Cambodia has ratified or signed.

Article 4: Criminal Responsibility

(…) An accomplice and instigator of the felonies or misdemeanors stipulated in this law shall be punished and liable to the same punishment as a principal who commits it.

An accomplice and instigator shall include, but not be limited to the form of organizing or directing another to commit any of the felonies or misdemeanors stipulated in this law.

When a representative, agent, or employee for a legal entity or a principal commits any offense stipulated in this law in the scope of its business, or in the interest of the legal entity or the principal, the legal entity or the principal shall be punished with fine and additional penalties in accordance with the punishment stipulated in the relevant article.

MOU between Cambodia and Thailand on Cooperation for Eliminating Trafficking^{^[35]}

Article 5: The Parties shall undertake educational and vocational training programs, in particular for children and women, to increase the opportunity for employment and hence reduce vulnerability to trafficking.

Article 6: The Parties shall make best effort to prevent trafficking in children and women through the following preventive measures:

Increase of social services such as assistance in job searching and income generating and provision of medical care to children and women vulnerable to trafficking;
Reform of educational and vocational training programs to improve their linkage with job opportunities;
Enhancement of public awareness and understanding on the issue of trafficking in children and women; and
Dissemination of information to the public on the risk factors involved in trafficking of children and women and on the businesses that are exploitative to children and women.

Article 9: The relevant governmental agencies where appropriate, in cooperation with non-government organizations, shall provide trafficked children, women and their immediate family, if any, with safe shelter, health care, access to legal assistance, and other imperative for their protection.

Article 10: The law enforcement agencies of both countries, especially at the border, shall work in close cooperation to uncover domestic and cross border trafficking of children and women.

US Department of State, Trafficking in Persons Report^[36]

Cambodia: Tier 2 Watch List

The Government of Cambodia does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so. These efforts included continuing to prosecute and convict traffickers; establishing a new five-year action plan to combat trafficking; and developing and utilizing new victim identification and data collection technologies. However, the government did not demonstrate overall increasing efforts compared to the previous reporting period. Authorities did not improve insufficient efforts to collect or share key information on law enforcement efforts. Corruption continued to impede law enforcement operations, criminal proceedings, and victim service provision. Amid insufficient government oversight and accountability measures, authorities did not investigate credible reports of official complicity with unscrupulous business owners who subjected thousands of men, women, and children throughout the country to human trafficking in entertainment establishments and in brick kilns. (…)

Prioritized Recommendations: (…)

Amend regulations on labor recruitment licensure and contract requirements to include strengthened language on worker protections and labor rights.
Strengthen efforts to inspect private labor recruitment agencies and their sub-licensed brokers for fraudulent recruitment and other trafficking indicators.
Increase public awareness on proper travel document application procedures to facilitate safe, legal migration. (…)

Prevention: (…)

The Ministry of Labor and Vocational Training (MOLVT) maintained a separate action plan aimed at reducing child labor and debt bondage in the service, agricultural, mining, and energy sectors by 2025 through awareness raising, legal action, and collaboration with civil society funded in part through the national budget. There was no ban on the imposition of worker-paid recruitment or placement fees. Observers noted the high costs, complex administrative requirements, and restrictive provisions inherent to the formal migration process drove a majority of Cambodian labor migrants to pursue informal pathways to working abroad. (…) Officials and NGO observers noted labor officials’ insufficient inspections of private recruitment agencies, and the ability of these agencies to sub-license their names to independent brokers, continued to perpetuate widespread labor exploitation. (…)

Trafficking Profile

As reported over the past five years, human traffickers exploit Cambodian men, women, and children in forced labor and sex trafficking in Cambodia and abroad. They also subject victims from other countries to trafficking in Cambodia, and they use Cambodia as a transit point to exploit victims from other countries to trafficking elsewhere in Asia. Cambodian adults and children migrate to other countries within the region and increasingly to the Middle East for work; traffickers force many to work on fishing vessels, in agriculture, in construction, in factories, and in domestic servitude—often through debt-based coercion—or exploit them in sex trafficking. Migrants using irregular migration channels, predominantly with the assistance of unlicensed brokers, are at an increased risk of trafficking, although those using licensed recruiting agents also become victims of forced labor or sex trafficking. Companies operating under the auspices of the Japanese government’s “Technical Intern Training Program” have exploited Cambodian nationals in forced labor in food processing, manufacturing, construction, and fishing. (…)

Traffickers continue to recruit significant numbers of Cambodian men and boys in Thailand to work on fishing boats and exploit them in forced labor on Thai-owned and -operated vessels in international waters. Cambodian victims escaping from their traffickers have been identified in Malaysia, Indonesia, Mauritius, Fiji, Senegal, South Africa, and Papua New Guinea. (…) Traffickers recruit a significant number of women from rural areas under false pretenses to travel to China to enter into marriages with Chinese men. [The] men force some of these women to work in factories or exploit them in sex trafficking to repay [debts]. Cambodian women serving willingly as illegal surrogates for Chinese families are vulnerable to confinement and domestic servitude. (…)

Nestle, Responsible Sourcing of Seafood at Nestle^{^[37]}

In 2015, Nestlé launched a Thailand Action Plan for the Responsible Sourcing of Seafood, detailing our commitment to eliminating labor and human rights abuses in the seafood supply chain in Thailand. This was developed based on an assessment of recruitment practices and migrant labor conditions in our Thai seafood supply chain carried out by our implementation partner, Verité, on our behalf. (…)

Responsible Recruitment

In working on labor rights abuses in our supply chains, we have found that such abuses can only be solved by addressing unethical recruitment practices. A key focus of our strategy therefore is on the responsible recruitment of workers throughout our seafood supply chain. We expect that workers in our supply chains are recruited responsibly, meaning that they do not pay for a job, are not indebted or coerced to work, and have freedom of movement. As of 2018, all of our Thai seafood suppliers implemented responsible recruitment initiatives. (…)

At the end of 2018 and beginning of 2019, Verité conducted two multi-stakeholder consultations with 23 individuals from civil society, local government, and the Association of Cambodian Recruitment Agencies (ACRA) in Phnom Penh, Cambodia to improve the migrant workers’ recruitment practices. (…)

In 2019, an action plan was developed including capacity building on ethical recruitment for commune leaders, NGOs and the Cambodia Anti-Trafficking Commission; training for NGOs on how to document labor risks among vulnerable populations; cooperation building on disseminating information and accessing grievance mechanism(s) between Thai and Cambodian NGOs, and other relevant stakeholders, and increasing the capacity of NGOs to monitor compliance of Private Employment Agencies to their Code of Conduct.

In 2019, Nestlé also initiated a partnership with the Fair Hiring Initiative, Inc. (TFHI), to conduct capacity building for ethical and fair recruitment for agencies and employers who are enrolled in TFHI’s ‘On The Level’ certification program pilot. The aim of this partnership is to increase the number of responsible recruitment agents and therefore responsibly recruited workers in the industry.

Thai Union, Transparency Statement under UK Modern Slavery Act^{^[38]}

This statement is written in compliance with the requirements under the UK Modern Slavery Act 2015, with particular reference to Section 54 Transparency in Supply Chains. The purpose of this statement is to describe efforts by Thai Union Group PCL (Thai Union) to prevent, detect, and remedy violations of human rights, particularly modern slavery and forced labor within our operations and supply chains. The statement covers periods up to 31 May 2019. (…)

1. About Thai Union

Thai Union Group PCL (Thai Union) … is regarded as the world’s largest producer of shelf-stable tuna products with annual sales exceeding THB 133.3 billion (US$ 4.1 billion) and a global workforce of over 47,000 people (…)

2. Thai Union’s Supply Chains

Seafood supply chains are complex, particularly where multiple species are involved. Thai Union is a processor. Globally, we do not own fishing vessels and own a very small number of aquaculture farms. Seafood raw materials are therefore sourced from suppliers from oceans and aquaculture operations around the world (…)

3. Thai Union’s Commitment on Human Rights and Sustainability

Thai Union’s mission is to be a seafood industry’s leading agent of change, making a real positive difference to our consumers, our customers and the way the category is managed. … [We] are taking a leading role in tackling human & labor rights abuses, including modern slavery and human trafficking within the seafood industry in Thailand and globally. (…)

5. Policies on Modern Slavery, Human Trafficking, and Human Rights

5.1 Human Rights Policy

Launched in 2018, the policy states the commitment to use our commercial leverage and leadership role to address human rights issues not in our value chain but also in the wider global seafood industry. In line with the previously issued Business Ethics and Labor Code of Conduct, the Human Rights Policy reiterates our commitment to respect universal human rights, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.

5.2) Business Ethics and Labor Code of Conduct (CoC)

Launched in 2015, the Business Ethics and Labor Code of Conduct (CoC) embodies our commitment to conduct business with integrity, openness, and respect for universal human rights and core labor principles throughout our operations. The CoC is based on 12 Fundamental Principles grounded in internationally recognized standards. The Code is applicable to all Thai Union employees, suppliers, and any sub-suppliers employed by primary suppliers in business with Thai Union. In particular, the Code states:

All laws and regulations are complied with in the countries in which the supplier operates.
Forced labor, whether in the form of indentured labor, bonded labor or other forms, is not acceptable. Mental and physical coercion, slavery and human trafficking are prohibited. (…)

5.3) Vessel Code of Conduct (VCoC) & Vessel Improvement Program (VIP)

To further mitigate the risks, including forced labor and modern slavery on the supplying vessels, we introduced the Vessel Code of Conduct (VCoC) in December 2017. … This code will be applicable to vessels from which Thai Union sources around the world. The VCoC must be signed by suppliers before we enter into a business relationship and by all of our existing suppliers. (…)

5.6 Ethical Migrant Recruitment Policy

Migration and recruitment of migrant workers is recognized as one of the highest risk areas for workers to become involved in human trafficking, forced labor or debt bondage. Thai Union’s migrant workforce in Thailand is primarily composed of workers from Myanmar and Cambodia. Recognizing this, Thai Union has focused on reducing the potential for abuse and extortion by agents and brokers in recruitment of migrant workers. (…)

Liberty Global Asia, Compensating Trafficking Victims in Thailand and Cambodia^{^[39]}

(…) The full extent of human trafficking in Cambodia is unknown because few reliable statistics are available. Cambodia has a population of over 16 million with a young labour force.(…) It is a destination for many trafficked Vietnamese women and children, a source for countries such as Thailand, Malaysia, China, Indonesia and South Africa and internal trafficking within Cambodia also takes place from rural to urban areas.(…) The Global Slavery Index 2018 estimated the number of victims of modern slavery in Cambodia to be 261,000.(…)

The lack of data and information sharing means it is difficult to fully assess where Cambodia stands in relation to prosecution and protection of victims of trafficking. Data from civil society continues to indicate serious and systemic flaws in the criminal justice system resulting in a low number of convictions and lack of payment of compensation awards. The reasons for this vary but amongst the most significant factors are the high numbers of cases settled out of court, lack of faith in the judicial system, hesitancy by victims to initiate or cooperate with court proceedings due to social stigma, and lengthy court proceedings.

UNODC, Human Trafficking from Cambodia, Lao PDR and Myanmar to Thailand^{^[40]}

2.6.3 Legal and semi-legal operators

In the context of smuggling and trafficking operations from Cambodia to Thailand, it is often difficult to differentiate between criminal operators and individuals and businesses that offer legal or semilegal services. This is particularly the case with labour hire agencies and recruitment agents, which play an important role in facilitating both regular and irregular migration from Cambodia to Thailand.

Although Cambodia has instituted a licensing system that authorises private businesses to recruit Cambodian workers for Thai employers, some service providers do not fully comply with regulatory requirements. Others operate completely outside the licensing system. But even when labour recruitment agents operate within the legal framework, it is not uncommon for Cambodian workers who use official channels to end up in trafficking situations once they reach Thailand. (…)

2.6.4 Persons aiding and facilitating smugglers and traffickers

Corrupt officials: The corruption of border guards, police and other officials plays a vital part in enabling and facilitating irregular migration from Cambodia to Thailand. Allegations of the involvement of corrupt individuals in trafficking in persons and smuggling of migrants are long-standing. Some sources suggest that trafficking in persons, especially trafficking in women and children, could not occur with the ease and on the scale it does without corruption.

Travel agents, carriers, et cetera: Smuggling of migrants and trafficking in persons from Cambodia to Thailand involve a range of individuals and businesses that may not be directly connected to the perpetrators and their networks but offer specialised services needed to transport migrants, transfer funds or otherwise facilitate irregular migration. These may include travel agencies, bus and transport companies, taxis and drivers, other transport providers, hoteliers and other accommodation providers, as well as financial institutions and agents used to transfer money. Using informal agents appears to be particularly common for remittance transfers.

Urbina, ‘Sea Slaves’: The Human Misery That Feeds Pets and Livestock^{^[41]}

Lang Long’s ordeal began in the back of a truck. After watching his younger siblings go hungry because their family’s rice patch in Cambodia could not provide for everyone, he accepted a trafficker’s offer to travel across the Thai border for a construction job. (…) But when he arrived, Mr. Long was kept for days by armed men in a room near the port at Samut Prakan, more than a dozen miles southeast of Bangkok. He was then herded with six other migrants up a gangway onto a shoddy wooden ship. It was the start of three brutal years in captivity at sea.

The misery endured by Mr. Long … is not uncommon in the maritime world. … In interviews, those who fled recounted horrific violence: the sick cast overboard, the defiant beheaded, the insubordinate sealed for days below deck in a dark, fetid fishing hold. (…)

While forced labor exists throughout the world, nowhere is the problem more pronounced than here in the South China Sea, especially in the Thai fishing fleet, which faces an annual shortage of about 50,000 mariners, based on United Nations estimates. The shortfall is primarily filled by using migrants, mostly from Cambodia & Myanmar. Many of them, like Mr. Long, are lured across the border by traffickers only to become so-called sea slaves in floating labor camps. (…)

Supply and Demand

The boat that delivered Mr. Long to captivity and subsequently rescued him was known as a “mothership.” Carrying everything from fuel and extra food to spare nets and replacement labor, these lumbering vessels, often over a hundred feet long, function as the roving resupply stores of the marine world. Motherships are the reason that slow-moving trawlers can fish more than 1,500 miles from land. They allow fishermen to stay out at sea for months or years and still get their catch cleaned, canned and shipped to American shelves less than a week after netting.

But once a load of fish is transferred to a mothership, which keeps the cargo below deck in cavernous refrigerators, there is almost no way for port-side authorities to determine its provenance. It becomes virtually impossible to know whether it was caught legally by paid fishermen or poached illegally by shackled migrants.

Bar codes on pet food in some European countries enable far-flung consumers to track Thai-exported seafood to its onshore processing facilities, where it was canned or otherwise packaged. But the supply chain for the 28 million tons of forage fish caught annually around the globe, about a third of all fish caught at sea and much of it used for pet and animal feed, is invisible before that.

Sasinan Allmand, the head of corporate communications for Thai Union Frozen Products, said that her company does routine audits of its canneries and boats in port to ensure against forced and child labor. The audits involve checking crew members’ contracts, passports, proof of payment and working conditions. “We will not tolerate any human trafficking or any human rights violation of any kind,” she said. Asked whether audits are conducted on the fishing boats that stay at sea, like the one where Mr. Long was captive, she declined to respond.

Human rights advocates have called for a variety of measures to provide greater oversight, including requiring all commercial fishing ships to have electronic transponders for onshore monitoring and banning the system of long stays at sea and the supply ships that make them possible. But their efforts have gotten little traction. (…)

Some pet food companies are trying to move away from using fish. Mars Inc., for example, which sold more than $16 billion worth of pet food globally in 2012, roughly a quarter of the world’s market, has already replaced fishmeal in some of its pet food and will continue in that direction. By 2020, the company plans to use only non-threatened fish caught legally or raised on farms and certified by third-party auditors as not being linked to forced labor. Though Mars has been more proactive on these issues than many of its competitors, Allyson Park, a Mars spokeswoman, conceded that the fishing industry has “real traceability issues” and struggles to ensure proper working conditions. This is even more challenging, she said, since Mars does not purchase fish directly from docks but further up the supply chain. Over the past year, Mars received more than 90,000 cartons of cat and dog food from the cannery supplied by one of the boats where Lang Long was held captive, according to the Customs documents.

Zimmerman et al, Health and Human Trafficking in the Mekong Sub-Region^{^[42]}

In Cambodia, the main government agencies responsible for the referral and protection of victims are the Ministry of Interior and the Department of Anti-Trafficking and Juvenile Protection (whose main role is to interview victims, conduct investigations and provide protection), and the Ministry of Social Affairs, Veterans and Youth, which provides direct assistance and reintegration, family tracing for unaccompanied minors and vocational training). Other government agencies involved are the Ministry of Foreign Affairs and International Cooperation and relevant embassies and consulates overseas who work with local authorities and international agencies in destination countries to identify and repatriate Cambodian victims of trafficking.

Recruitment Stage

Awareness of trafficking: Over the past decade, significant resources have been invested in “awareness raising” to prevent human trafficking. Participants were asked: “Before you left home, had you ever heard about “human trafficking?” Less than half (44.1%) of all participants (from the various countries of origin) reported that they had previously heard about “trafficking.” Thailand was the country with the highest proportion of nationals who had heard about trafficking (65.4%), followed by Cambodia (46.2%), the Lao People’s Democratic Republic (39.7%), Viet Nam (38.9%) and Myanmar (32.8%). (…)

Reasons for leaving home: People often have multiple reasons for migrating for work (…) Participants were asked (…) The most common reasons cited were that “I didn’t earn enough money in my job” (42.5%), “I know others who left and earned money” (37.9%), and “I could not find a job nearby” (23.8%). Thirty-five participants (3.2%, n=35 of 1102) reported: “I was abducted.” Nineteen of the 35 were under 18 years old, and 27 of the 35 were female.

Recruitment: Participants were asked, “Who do you think is responsible for getting you into the trafficking situation?” and were invited to offer more than one answer. Just over half (50.7%) stated that they themselves were responsible. When participants implicated others, “brokers” or recruitment agents (33.9%) were most commonly cited.

Of the 420 participants who offered more than one response, participants were most likely to name themselves (65.7%, n=276 of 420) and a broker (52.6%, n=221 of 420) as the individuals who were primarily responsible for the trafficking. (…)

Questions

What is the difference between forced labour and human trafficking? What is the relation between them and why are they treated together under the ‘modern slavery’ term?
How is modern slavery different from slavery?
How forced labor and human trafficking happen in businesses in Cambodia?
Is the issue of human trafficking a domestic, transboundary or regional issue? Who are the key players in combating human trafficking in all these situations and in different industries?
What are the obligations and challenges for the government in regulating the issues of forced labor and human trafficking in Cambodia?
What are the legal and moral responsibilities for businesses that engage in human trafficking and/or forced labor? What should companies do concretely to comply with their responsibilities?
How far should these legal and moral responsibilities extend regarding modern slavery in their supply chains?

Introduction

Low wages – sometimes not covering even the basic necessities of a life with dignity – is an issue in many countries, both developing and developed states. Today, the international standard is that of a ‘living wage’ in recognition that minimum legal wages are often artificially low and disconnected from the real costs of living. This is part of the Decent Work Agenda promoted by the ILO and the UN Agenda 2030 (chapter 2). Increasing wages through the actions of individual companies alone can be difficult because remuneration levels are heavily influenced by labour market supply and demand, involve macroeconomic aspects, are affected by competitive pressures in supply chains, and might defy simple regulatory solutions. Extremely low wages trigger other labour violations such as excessive overtime (chapter 18) as workers feel compelled to work extra hours to make ends meet. Becoming tired due to excessive hours in turn can trigger accidents (chapter 20). After years of experimentation with more simple solutions, leading companies have forged new multistakeholder partnerships (chapter 5) and indicate that systemic problems can only be addressed through a collaboration of public and private actors to raise remuneration levels within the entire industry. In developed countries, labour unions and management negotiate to set appropriate wage levels; in this process, freedom of association, collective bargaining and the right to strike are essential (chapter 19). When states repress trade unions, possibly acting on the belief that this creates a favorable environment for trade and investment (chapter 3), workers are deprived of a key tool to achieve minimum wages. There has also been progress in the development of methodologies that make it possible to calculate living wages.

Cambodia upholds the fundamental human right of equal pay for equal work and puts in place an annual minimum wage setting for workers in textile, garment and footwear sectors. As a result, the minimum wage has been increasing since 1997. However, to achieve a decent work for workers, they should be able to receive a living wage in case the minimum wage fails to do so. For that reason, unions and workers in Cambodia have continued pushing every year for the government and manufacturing companies to narrow the gap between the minimum wage and the living wage as soon as possible, claiming that the current speed of minimum wage increment is unlikely to provide workers a living wage. However, achieving a living wage is a complicated and ambitious process considering the fast-changing economy in Cambodia as well as globally. Unlike regulating ‘minimum wage’, achieving ‘living’ wage would require participation from all relevant stakeholders to address current barriers to living wage together.

Main Aspects

Wage, minimum wage, living wage, low pay (1/3 of median wage)
Coverage of minimum wage: national, by industry, by occupation
Method of calculation: factors for determining minimum/living wage
Forms of pay: piece rate pay, payment in kind
Excluded or vulnerable workers (domestic workers, migrant workers, young workers)
Social protection (minimum wages and income transfers)
Collective bargaining
Overtime
Relation to legal system (labour inspection, conciliation/arbitration)
Minimum wage commissions
Relation to market efficiency, productivity, employment, inflation, labour flexibility, comparative advantage of states in international trade
Minimum wage: needs of workers and economic considerations
Multi-stakeholder collaboration and industry-wide action (response to systemic problems)
Purchasing practices of buyer companies

Background

ILO, Wages^{^[1]}

Wages means “remuneration or earnings, however designated or calculated, capable of being expressed in terms of money and fixed by mutual agreement or by national laws or regulations, which are payable in virtue of a written or unwritten contract of employment by an employer to an employed person for work done or to be done or for services rendered or to be rendered”. (ILO Protection of Wages Convention, 1949 (No. 95), Article 1)

In many cases, total wages or earnings include different components, such as:

basic pay
annual bonuses
tips
in-kind benefits
productivity and performance pay
allowances and premiums for non-standard work hours or dangerous work.

The fact that total wages or earnings are made of different components raises the question of which components should count towards compliance with the minimum wage. Should the minimum wage apply to workers’ total earnings – or should it apply only to some of its components? Convention No. 131 does not explicitly indicate the elements to be included in the minimum wage. But clarity is needed for a minimum wage policy to be operational.

In some countries, only basic wages are taken into account for the purpose of minimum wages. In other countries, most other wage components are also included. While both options are possible, a problem arises in cases where the basic wage constitutes only a very small part of total earnings (in which case a minimum wage that applies only to the basic wage is not very meaningful) or when the components of the minimum wage are left undefined. In some countries with no clear legal definition of what the minimum wage should include, this question tends to end up in court.

ILO, Minimum Wages^{^[2]}

Minimum wages have been defined as “the minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by collective agreement or an individual contract”. This definition refers to the binding nature of minimum wages, regardless of the method of fixing them. Minimum wages can be set by statute, decision of a competent authority, a wage board, a wage council, or by industrial or labour courts or tribunals. Minimum wages can also be set by giving the force of law to provisions of collective agreements.

Minimum wage systems should not be seen or used in isolation, but should be designed in a way to supplement and reinforce other social and employment policies. Several types of measures can be used to tackle income and labour market inequality, including pro-employment policies, social transfers, and creating an enabling environment for sustainable enterprises. The purpose of a minimum wage, which sets a floor, should also be distinguished from collective bargaining, which can be used to set wages above an existing floor.

Living Wage

A Living Wage is: ‘The remuneration received for a standard workweek by a worker in a particular place sufficient to afford a decent standard of living for the worker and her or his family. Elements of a decent standard of living include food, water, housing, education, health care, transportation, clothing, and other essential needs including provision for unexpected events.’^[3]

The concepts of “living wage” and “living income” are both about achieving a decent standard of living for households. The idea of a living wage, however, is applied in the context of hired workers (in factories, on farms, etc.), whereas living income is discussed in the context of any income earner, such as self-employed farmers.^[4]

ACT (Action, Collaboration, Transformation): how does ACT define a living wage?^[5]

Marinakis, The Role of ILO in the Development of Minimum Wages^{^[6]}

The history of minimum wages started a few years before the creation of the ILO. At the beginning of the 20th century, very few countries were experimenting with this new instrument, with the limited scope of protecting workers in low-paying industries or activities. (…) Some sceptics thought there was no need to introduce a minimum wage, as collective bargaining would develop with the expansion of industrialisation providing a bilateral instrument for wage fixing. In fact, this trend did not happen, and minimum wages proved to be a very useful instrument for guiding wage determination, while protecting less skilled workers.

The concept of minimum wages evolved during the years, particularly during the 1960s, when it was conceived as an instrument for economic development. (…) During the 1980s and 1990s, the call for flexibility was incorporated into the stabilization and adjustment programmes. Minimum wages were seen as a source of rigidity which impeded labour market efficiency, rather than a useful instrument as a wage floor which guaranteed a decent standard of living. (…) While at the creation of the Organization wages were part of the core values, the reaffirmation of the ILO’s mission during the 1990s did not include the issue of wages e.g. the Declaration of Fundamental Principles and Rights at work of 1998 made no reference to this issue.

However, most recently, perhaps in view of signs of revival of “living wage” concerns in some countries since the turn of the millennium, the 2008 ILO Declaration on Social Justice for a Fair Globalization refers to a minimum living wage. (…) At the beginning of the 21st century, more than 90 per cent of the countries have a minimum wage, being one of the most extensively applied labour policies. The very existence of the minimum wage as part of the basic policy tools is not under question any more, but the remaining challenge is to arrive to a broad consensus on its correct implementation.

Instruments

The Universal Declaration of Human Rights^{^[7]}

Article 23: (…) (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

International Covenant on Economic, Social and Cultural Rights ^{^[8]}

Article 7: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

ILO, Minimum Wage Fixing Convention^{^[9]}

Article 3

The elements to be taken into consideration in determining the level of minimum wages shall, so far as possible and appropriate in relation to national practice and conditions, include

(a) the needs of workers and their families, taking into account the general level of wages in the country, the cost of living, social security benefits, and the relative living standards of other social groups;

(b) economic factors, including the requirements of economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment.

Article 4

1. Each Member which ratifies this Convention shall create and/or maintain machinery adapted to national conditions and requirements whereby minimum wages for groups of wage earners covered in pursuance of Article 1 thereof can be fixed and adjusted from time to time.

2. Provision shall be made, in connection with the establishment, operation and modification of such machinery, for full consultation with representative organisations of employers and workers concerned or, where no such organisations exist, representatives of employers and workers concerned.

3. Wherever it is appropriate to the nature of the minimum wage fixing machinery, provision shall also be made for the direct participation in its operation of

(a) representatives of organisations of employers and workers concerned (…) on a basis of equality;

(b) persons having recognised competence for representing the general interests of the country and appointed after full consultation with representative organisations of employers and workers concerned (…).

ILO, Minimum Wage Fixing Recommendation^{^[10]}

6. The minimum wage fixing machinery provided for in Article 4 of the Convention may take a variety of forms, such as the fixing of minimum wages by

(a) statute;

(b) decisions of the competent authority, with or without formal provision for taking account of recommendations from other bodies;

(d) industrial or labour courts or tribunals; or

(e) giving the force of law to provisions of collective agreements.

7. The consultation provided for in paragraph 2 of Article 4 of the Convention should include, in particular, consultation in regard to the following matters:

(a) the selection and application of the criteria for determining the level of minimum wages;

(b) the rate or rates of minimum wages to be fixed;

(d) problems encountered in the enforcement of minimum wage legislation;

(e) the collection of data and the carrying out of studies for the information of minimum wage fixing authorities.

ILO, Declaration on Social Justice for a Fair Globalization^{^[11]}

(…) the ILO has the solemn obligation to further among the nations of the world programmes which will achieve the objectives of full employment and the raising of standards of living, a minimum living wage and the extension of social security measures to provide a basic income to all in need (…)

I. (…) the four equally important strategic objectives of the ILO, through which the Decent Work Agenda is expressed (…):

(ii) developing and enhancing measures of social protection – social security and labour protection – which are sustainable and adapted to national circumstances, including: (…)

policies in regard to wages and earnings, hours and other conditions of work, designed to ensure a just share of the fruits of progress to all and a minimum living wage to all employed and in need of such protection

ILO, Minimum Wage Policy Guide^{^[12]}

Setting and adjusting minimum wage levels

Setting and adjusting the level is perhaps the most challenging part of minimum wage fixing. If set too low, minimum wages will have little effect in protecting workers and their families against unduly low pay or poverty. If set too high, minimum wages will be poorly complied with and/or have adverse employment effects.

To be meaningful, minimum wages have to be set at a level that covers the needs of workers and their families, while taking into account economic factors. Assessing whether existing rates are sufficient to meet the needs of workers and their families can be challenging. First, needs of workers and their families cannot be considered in a vacuum; they must be understood in relation to a country’s level of economic and social development, taking into account the views of social partners. Secondly, whether a minimum wage is sufficient to cover family needs depends on the size of one’s family, which varies across workers. It also depends on how many family members earn the minimum wage, and on the local cost of living. Because of all these reasons, adequate minimum standards of living should be ensured through the combination of a minimum wage and social security measures. Yet some useful benchmarks can be used for the purpose of fixing minimum wages.

Absolute estimates of needs of workers and their families can be constructed by estimating the average cost of basic but decent life style for a worker and his or her family by adding up the cost of food, housing, and other essential expenses like for health, education of children, and participation in the social life of the community. This is the approach usually taken in estimating national poverty lines or “living wage” thresholds.

Measuring the needs of workers and their families

Assessing the needs of workers and their families, for the purpose of setting the minimum wage, can be complex for three principle reasons tied to: the measurement of the minimum income level, the household size, and the number of household members working. (…)

Income benchmarks – what are the needs of an individual?

The definition of needs is a relative concept. There can be basic needs, higher needs, and so on. The definition of these different types of needs can also vary across and within countries. For example, should allowance for recreation be considered as part of basic needs – or are they higher needs? The difficulty of pinning down what constitutes what type of need explains why there is no universal definition that is widely accepted. (…)

Household size: How many people’s needs can or should be met?

Household size varies across workers and also through the lifetime of a worker. During the working lifetime of an individual, it is common that a wage earner’s family comprises both adults and dependants. But how many dependents? How many people’s needs should be met? Considering the potential multiplicity of situations, what is the best approach to estimate the size of a household? Three possible options are presented below:

• consider the national average

• consider two adults and two minors as a structure that ensures population replacement

• consider the average household size of lower-income households, given that minimum wages generally aim to protect these groups and that poorer households tend to be larger. (…)

Labour force participation rates: how many people work in a household?

How many people work in a household? This question is important to determine how many people’s needs should be met through one minimum wage. The answer is of course different if two adult members earn a minimum wage as opposed to only one adult. (…)

Given all these different situations, as well as the methodological aspects, what is the most appropriate way to estimate the number of income earners per household for purposes of the minimum wage fixing process? Four possible model scenarios are presented here:

Only one full-time worker, in order to ensure that a household covers its basic needs with one minimum wage.
All working-age adults in a household work full time. For example, in a family with two adults and two children, the two adults would work full time.
The average at the national level, taking into consideration that in many households there is more than one income earner and that not all workers work full time.
The average among lower-income families, in case the number of workers differs from the average family.

Our discussion shows that there are no unambiguous ways to determine whether a minimum wage meets the needs of workers and their families. The answer will always depend on what criteria are used to determine the needs of workers and their families in a given country, the household size of workers, as well as the number of workers per household. It is important for policy makers, however, to have a clear understanding of the living standard that minimum wage earners can afford, and to try to agree on minimum income benchmarks that should be reached through minimum wages and other policies such as income transfers.

Monitoring the effects of minimum wages

Monitoring the effects of minimum wages is a key element of an evidence-based system. Findings from rigorous impact assessment studies should find their way back to Governments and social partners, and inform subsequent rounds of adjustment or changes to the system.

Governments and social partners should have access to studies on the effects of minimum wages on variables such as wages, employment, informality, hours of work, gender pay gaps, income inequality or poverty. Studies should also monitor effects on prices and on the different elements of aggregate demand, including household consumption, investment or the competitiveness of exports. (…)

More controversial is the debate on the employment effects, which have been found to vary across countries and studies. A recent World Bank overview concluded that “although the range of estimates from the literature varies considerably, the emerging trend in the literature is that the effects of minimum wages on employment are usually small or insignificant (and in some cases positive).” But differences in findings across countries and studies point towards the importance of country-specific programmes for monitoring the employment effects of minimum wages, particularly on vulnerable workers and enterprises.

How to enforce minimum wages?

High rates of non-compliance have negative consequences not only for workers and their families, whose rights are violated, but also for compliant employers, as it gives non-compliant enterprises an illegitimate cost advantage. Compliance can be increased through a number of implementation measures, including:

information and awareness raising campaigns
capacity building activities for employers’ and workers’ representatives
empowering workers to claim their rights through individual complaints as well as collective action
measures to formalize the informal economy
targeted labour inspections
sanctions that function as a deterrent to non-compliance
monitoring and responsible purchasing practices within global supply chains
public employment programmes that pay minimum wages

The extent of non-compliance can also vary depending on the design of minimum wage policies and the number of rates, and also depends on the effectiveness of the entire process of designing and implementing minimum wage policies, from fixing the right level and rate structure in the first place, in full consultation with employers’ and workers’ organizations. This is why a comprehensive approach is necessary.

Payment in kind

Payment in kind is non-cash remuneration received by an employee for work performed. This can include: food, drink, fuel, clothing, footwear, free or subsidized housing or transport, electricity, car parking, nurseries or crèches, low or zero-interest loans or subsidized mortgages.

The ILO Protection of Wages Convention, 1949 (No. 95) allows “for the partial payment of wages in the form of allowances in kind in industries or occupations in which payment in the form of such allowances is customary or desirable because of the nature of the industry or occupation concerned” (Article 4.1). In such cases, it calls however for measures to ensure that: (a) “such allowances are appropriate for the personal use and benefit of the worker and his family”; and (b) “the value attributed to such allowances is fair and reasonable”.

It must be kept in mind that payment in-kind tends to limit the financial income of workers. (…) There is also a risk of abuse. Hence, even in those industries or occupations in which such a method of payment is long-established and well-received by the workers concerned, there is a need for safeguards and legislative protection. This can be done in different ways:

Prohibiting in-kind payments as part of the minimum wage. In Spain, the legislation allows for the inclusion in the wage of payments in kind up to 30 per cent, but prohibits it as part of the minimum wage. In Cambodia, in-kind payment cannot be considered as part of the minimum wage.
Allowing a maximum percentage of the wage: While no Conventions or Recommendations fix a specific threshold for payments in kind, the ILO Committee of Experts has expressed doubt concerning payment in kind that exceeds 50 per cent of the wage. Most countries have lower thresholds, with many not allowing in-kind payments exceeding 30 per cent of the wage. (…)
Valuing in-kind payments at cost or less than the cost to employers: In order to preclude employers from profiting from the provision of payment in kind, some countries explicitly state that employers may not charge more than the actual cost of the goods provided. Other countries use the price a worker would pay for a product, service or housing if he or she were to buy it. (…)

Piece rate pay

Piece rate pay occurs when workers are paid by the unit performed (e.g. the number of tee shirts or bricks produced) instead of being paid on the basis of time spent on the job. (…)

In developing countries, workers relying on piece rate wages often constitute a vulnerable section of workers, with many working in the informal economy. Large numbers are women. Piece rate pay is also frequent in the textile, garment, footwear and leather industries, and in global supply chains. (…)

In some countries, piece rate workers must be paid a “fair wage”. In the U.K. piece rate can only be used in limited situations when the employer does not know how many hours the worker does work (e.g. as with some home workers).

A fair wage for piece rate workers in the United Kingdom Employers are obliged to implement the following method: Find out the average number of tasks or pieces completed per hour; for example workers may produce on average 12 shirts per hour. Divide this number by 1.2 so that new workers won’t be disadvantaged if they’re not as fast as the others yet; in our example we divide 12 shirts by 1.2 which is equal to 10 shirts produced. Divide the hourly minimum wage rate by that number to work out the fair rate for each piece of work completed. If the minimum wage rate is £6.70, workers must be paid at least 67p per shirt they make (£6.70 divided by 10).

ILO, Labour Protection in a Transforming World of Work^{^[13]}

2.1. Wage policies

25. During the 1980s and 1990s, support for minimum wage policies weakened. High inflation and the shift from import-substitution industrialization to export-led growth policies in many parts of the developing world led many countries to discontinue adjustments to the minimum wage, leading to a fall in their real value. Debates on labour flexibility and the perceived role of minimum wages and other labour protection policies in contributing to unemployment and informality resulted in a decline in the standing of the minimum wage as a mechanism of labour protection. The decline in unionization and collective bargaining coverage, the pressures caused by globalization and the financial markets and the availability of new technologies weakened workers’ ability to bargain for higher wages.

26. [in 16 high-income countries] the share of worker compensation in gross domestic product (GDP) (the so-called labour share) declined from a peak of about 75 per cent in the mid1970s to less than 65 per cent just before the outbreak of the global economic and financial crisis. Although there is no universal trend, studies and reports have also documented the decline in labour shares in various large emerging economies and most regions of the world. This downward trend in the labour share is reflected in the decoupling of wage growth from productivity growth in many parts of the world (…). The main causes of these trends vary from country to country, but they have been attributed to factors including labour-reducing technological changes, the intensification of global trade, pressures to maximize shareholder value, weaker labour market institutions and the reduced bargaining power of workers.

27. The decoupling of wages and productivity growth has been accompanied in recent years by an increase in wage inequality, with greater stagnation for workers at the bottom of the wage distribution, who are primarily low-skilled and in a weaker position to negotiate wage increases and thus have a greater need for mechanisms of institutional support, such as collective bargaining and minimum wages. (…)

28. To combat low-paid work and rising poverty, and as a means to increase the purchasing power of workers, more countries have turned to the minimum wage as a policy tool over the past decade. The renewed attention on the minimum wage is also partly due to the emergence of empirical evidence showing that minimum wages, when well-designed and implemented, help protect workers and have limited impact either on employment or inflation. (…)

3.1.1. Minimum wages

46. (…) Coverage is affected, for example, by the type of minimum wage system that is in place in a country. Some countries have a national minimum wage that applies to all waged workers in a country (with some exceptions), whereas other countries have systems that apply only to selected industries or occupations. About half of the 151 countries and territories reviewed in a recent ILO study have a minimum wage system that applies uniform coverage on a national or regional basis; the remaining countries implement systems with multiple rates that vary by industry or occupation (…)

47. Even in countries that provide a national or regional uniform rate, there are groups of workers that are sometimes excluded, such as domestic workers, family members, young people, apprentices, disabled workers, workers in free trade zones, agricultural workers and workers in micro- and small enterprises. (…)

48. With regard to the level of protection, the challenge is to set minimum wages in a balanced way that takes into account a host of factors, including: the needs of workers and their families; the general level of wages in the country; the cost of living; social security benefits; the relative living standards of different social groups; and economic factors such as levels of productivity and possible adverse effects on employment if the minimum wage is set too high. (…)

49. The issue of compliance deserves more attention than it has sometimes received in the past. A recent [article] found that one third of the 326 million wage earners who were legally covered in the 11 countries under study were paid less than the legal minimum, indicating a significant degree of non-compliance. In addition, the authors found that, in nine of the countries, the average wages of female workers earning sub-minimum wages was lower than those of male workers, such that the depth of violation was more pronounced among women. This was also true of ethnic and racial minorities and informal workers. (…)

52. The issue of how much is paid is more complicated when it involves overtime. Overtime is an issue of both payment and working hours. Because overtime may need to be paid at a higher rate than regular working hours, disagreement between employers and workers can frequently lead to formal legal complaints about payment. (…)

53. Wage protection is facilitated when there are social actors and legal institutions to support workers. Trade unions play a vital role in guaranteeing that workers are paid in full and in a timely manner. (…) Labour inspectorates and labour arbitration or courts are also critical when violations of wage protection provisions take place. (…)

Making work pay: Extending minimum wage protection

115. The Minimum Wage Fixing Convention, 1970 (No. 131), does not prescribe a particular model of minimum wage system or the level at which a minimum wage should be fixed; rather, it offers member States some flexibility in the implementation of its principles and leaves decisions to national authorities, in consultation with the social partners. Designing the appropriate minimum wage policy involves a number of policy challenges. The 2014 General Survey on minimum wage systems highlighted some of the policy issues that were likely to pose difficulties for national constituents, including:

(i) the definition of the concept of wages and the identification of the elements of remuneration to be included in the minimum wage, particularly in relation to benefits in kind (such as housing and food), for example in the case of domestic workers;

(ii) the exclusion of specific categories of workers from the application of the Convention, notably when frequently applied to categories such as domestic workers, agricultural workers, young workers or other groups that may need protection from unduly low wages;

(iii) the application of the principle of equal pay for work of equal value, especially when minimum wages differ by sector or occupation, or differ on the basis of age, disability or the migrant status of the workers concerned;

(iv) compliance with the requirement that employers’ and workers’ organizations should be fully consulted at all stages of the development and implementation of the system;

(v) the joint consideration of the needs of workers and their families and of economic factors; and

(vi) the establishment of dissuasive sanctions and the allocation of adequate resources for labour inspection services.

ILO, Global Wage Report^{^[14]}

Minimum wages

One measure introduced to reduce wage inequality and working poverty in many countries in recent years has been the establishment or strengthening of minimum wages. The level and distribution of wages are determined by a wide range of factors. Choices that are made in education, childcare or migration policies can affect the supply of male and female workers of different skill levels to the labour market, while trade policies or technological innovations can change the relative demand for workers with different levels of qualifications.

Labour market institutions also have a significant impact on wages and wage inequality. Collective bargaining allows groups of workers to negotiate higher wages with employers, and this can have a particularly large impact for workers in the lower half of the distribution who may have less individual bargaining power. In many countries, however, collective bargaining coverage remains relatively low or has contracted. Several countries have accordingly turned towards new or stronger minimum wage setting mechanisms. As the OECD has pointed out, “the recent crisis and the longer-running trend of rising inequality have added new momentum to minimum-wage debates”.

The setting of minimum wages is a balancing act; it should be based on statistical evidence and done in full consultation with social partners and, where appropriate, with their direct participation on an equal footing. Recent evidence shows that when minimum wages are set at an adequate level, taking into account the needs of workers and their families as well as economic factors, they can raise the wages of low-paid workers – many of whom are women – without significant negative effects on jobs. This has been the finding, for example, of the UK Low Pay Commission (2014) and of the first evaluation of the new national minimum wage in Germany.

After reviewing the existing literature, a World Bank study concluded that “although the range of estimates from the literature varies considerably, the emerging trend in the literature is that the effects of minimum wages on employment are usually small or insignificant (and in some cases positive)”. In high-income countries, a review of about 70 studies shows that findings are varied but the most frequent finding is that employment effects are close to zero and too small to be observable in aggregate employment or unemployment statistics. Similar conclusions emerge from meta-studies (quantitative studies of studies) in the United States, the United Kingdom, and in developed economies in general.

These findings, however, remain controversial; other reviews conclude that employment effects are less benign and that minimum wages reduce employment opportunities for less-skilled workers. In developing countries, findings also seem more mixed and country-specific, which points towards the importance of monitoring the effects of minimum wages at country level. An additional concern in developing countries is that instead of causing lower employment, minimum wages that are too high may cause employees to be displaced from the formal to the informal economy.

Global Living Wage Coalition, Methodology for Estimating a Living Wage^{^[15]}

This methodology has been used to estimate living wages in nine countries for a multi-national corporation while it was being developed and has now been used to estimate living wage for over 30 additional locations globally for the GLWC, with strong uptake and interest among both local and international stakeholders.(…)

The living wage methodology has two main components. The first component estimates cost of a basic but decent lifestyle for a worker and his/her family in a particular place. The second component determines if the estimated living wage is being paid to workers. (…)

I. Estimating the Cost of a Basic but Decent Lifestyle for Workers and Families

In the first step, living costs are divided into three categories: food, housing, and other essential needs.

Food costs are estimated based on: (i) a low cost nutritious diet that meets World Health Organization (WHO) recommendations on calories, macronutrients, and micronutrients and is consistent with local food preferences and a country’s development level; and (ii) local food prices for the types, qualities, and quantities of foods that workers typically buy based on new data collection that involves workers and key informants. (…)

Housing costs are estimated using international (UN-HABITAT) and national standards for decency (e.g. dwellings located outside slums and unsafe areas that have permanent walls, roofs that do not leak, and adequate ventilation; amenities such as electricity, water, and sanitary toilet facilities; and sufficient living space so parents can sleep separately from children). (…)

Lastly for practical reasons, cost of other essential needs is estimated using an extrapolation method based on secondary household expenditure data. This is then “post checked” to make sure that sufficient funds are included for health care, education, and transportation. (…)

Total cost per capita of a basic but decent standard of living is then scaled up to arrive at a cost for a typical family size in the area. A small margin is then added to provide for unexpected events and emergencies such as illnesses and accidents, to help ensure sustainability and avoidance of the perpetual poverty trap. To arrive at the living wage estimate, the estimated total cost of a decent standard of living for a typical family is then defrayed over the typical number of full-time equivalent workers per family for that location. (…)

This methodology is a practical compromise between separately estimating cost of each and every expense families have, and the most common approach currently used for estimating living wage in developing countries, which uses just two expense groups (food costs based on a model diet and nonfood costs based on secondary data). Using normative standards for decent housing and estimating housing costs separately (not as part of nonfood costs, as in typical methodologies) ensures that living wage estimates enable workers to afford decent housing. In contrast, typical methodologies rely on available expenditure data to estimate housing costs and so replicate current (often substandard) housing conditions. Our methodology also better allows for different living wage estimates for rural and urban areas, as housing costs are usually the most important cause of differences in living costs.

II. Determining if a Living Wage is Being Paid

To determine if a worker receives a living wage, the methodology takes into account how workers are paid. For example: (i) overtime pay is excluded because living wage needs to be earned in standard working hours; (ii) productivity bonuses and allowances are excluded unless they are guaranteed; (iii) mandatory taxes are taken into consideration because sufficient disposable income is required so workers can afford a decent living standard; and (iv) fair and reasonable value for in-kind benefits provided is taken into consideration, because in-kind benefits reduce the amount of cash income workers need for a decent living standard. However, since too great a reliance on non-monetary benefits hinders empowerment and free choice, the methodology includes rules on how to value in-kind benefits to ensure that their value is fair and reasonable.

The methodology also include guidances on how to check wage levels in different labour situations (e.g. standard employment, temporary or seasonal labour, piece rate).

Involvement of Local Stakeholders

The process of estimating a living wage for a particular location involves consultation with and the participation of local stakeholders, including trade unions and employer organisations when present. The goal of the estimation process is to obtain a credible living wage estimate that stakeholders are likely to view as legitimate and reasonable regardless of whether or not local employers feel they can pay this living wage. Local stakeholders are closely involved in the collection of local food and housing costs, based on visits to workers’ homes and places where workers shop for food; workers provide information on local preferences and living conditions; employers and workers provide information on in-kind benefits, bonuses, and deductions from pay; and, before final conclusions are taken, stakeholders are asked to provide feedback and suggestions on preliminary living wage estimates.

ACT (Action, Collaboration, Transformation)^{^[16]}

Background

ACT (Action, Collaboration, Transformation) is a ground-breaking agreement between global brands and retailers and trade unions to transform the garment and textile industry and achieve living wages for workers through collective bargaining at industry level linked to purchasing practices.

Collective bargaining at industry level means that workers in the garment and textile industry within a country can negotiate their wages under the same conditions, regardless of the factory they work in, and the retailers and brands they produce for. Linking it to purchasing practices means that payment of the negotiated wage is supported and enabled by the terms of contracts with global brands and retailers.

ACT is the first global commitment on living wages in the sector that provides a framework through which all relevant actors, including brands and retailers, trade unions, manufacturers, and governments, can exercise their responsibility and role in achieving living wages.

ACT members have agreed the following the principles:

A joint approach is needed where all participants in global supply chains assume their respective responsibilities in achieving freedom of association, collective bargaining and living wages.
Agreement on a living wage should be reached through collective bargaining between employers and workers and their representatives, at industry level.
Workers must be free and able to exercise their right to organize and bargain collectively in accordance with ILO Conventions.

Memorandum of understanding between ACT corporate signatories and INDUSTRIALL Global Union on establishing within global supply chains freedom of association, collective bargaining and living wages

Goals and Purpose

This Memorandum of Understanding (MoU) aims at creating a cooperation between IndustriALL Global Union and ACT (Action Collaboration Transformation) corporate signatories (“We”) in order to achieve living wages for workers in the global textile and garment industry supply chains through mature industrial relations, freedom of association and collective bargaining. (…)

There are two sustainable mechanisms that we consider have the capacity to deliver freedom of association, collective bargaining and living wages to any scale, while setting a level playing field:

• Industrywide collective agreements

• National minimum wage fixing enforcement mechanisms

Framework for Action

We recognise that business security and commitment to production countries and suppliers are a key enabler for paying living wages in conjunction with all other pillars of our joint approach. (…)

4) Corporate signatories will work to ensure that their respective purchasing practices support long-term partnerships with manufacturers in support of ethical trade. We, ACT corporate signatories and IndustriALL, will jointly design a strategy for this which takes into account the nature of the industry.

5) Corporate signatories will ensure that their purchasing practices facilitate the payment of a living wage as defined in this document

7) The corporate signatories will exchange the necessary information for this programme regarding their strategic supplier factories with IndustriALL for the purpose of effective implementation in the target countries.

8) The corporate signatories will work with their supplier factories and IndustriALL will work with its affiliated unions in target countries to bring them together to negotiate towards a living wage.

9) We will provide capacity building to both groups in support of this process, including training of managers and workers on freedom of association and collective bargaining.

14) IndustriALL and ACT signatories will make joint approaches to governments in support of higher minimum wage outcomes, including brand commitments to continued sourcing, taking into account the gap between the minimum wage and a living wage, cost of living increases, productivity and efficiency gains and the development of the skills of workers, carried out in cooperation with unions at workplace level.

Negotiating solutions^{^[17]}

Ethical Trading Initiative, A Living Wage for Workers^{^[18]}

Why is living wage rising on the global agenda?

The rising phenomenon of “the working poor” since the 2008 recession – ie working people who are unable to make ends meet because wages are too low.
The gap between national minimum wages and cost of living increasing
The growing awareness and concern of consumers about working conditions (heightened further by incidents such as the Rana Plaza collapse)
The continued development of international standards for business and ethics.

What are the challenges to achieving living wages?

Wage levels come about through a complex economic process of labour supply and demand, through negotiations, established policy norms, the power relations between workers and employers etc. Artificially setting wages may be impracticable or may lead to unintended consequences.
If overall budgets are not increased, increasing wages for some workers could lead to others being laid off or not recruited – ie increased unemployment
Lower skilled workers, may be priced out of the job market because the value they add is not seen to be equivalent to the new higher level of wages
Companies may be unwilling or unable individually to increase the prices they pay to suppliers for products
In a top down approach, if higher prices are paid, suppliers may not pass price increases on to workers, particularly if workers have no bargaining power.

What can brands and retailers do?

It is important for companies to look beyond definitions and calculation methodologies and to think about inclusive mechanisms that ensure that a living wage is a product of a process of negotiation which is able to respond to externalities over time, and how this is accommodated in the value chain. As part of this process it is vital to consider the particular rate of pay in a particular location and industry. Companies should:

Build long term, mutually trusting relationships with suppliers and work together to understand the drivers of prevailing wage levels and how they can be influenced
Consult with workers/managers to calculate living wage levels for the area/industry
Advocate for mechanisms to set national minimum wages that equate to living wages
Ensure cost of living wages are accommodated throughout the value chain and if necessary in product price
Improve workers’ collective bargaining power and ensure their right to freedom of association is respected.
Incentivise employers to pay living wages – eg by increasing orders to those suppliers.
Improve productivity and efficiency to enable the value chain to accommodate wage growth.
Mitigate the impact of wage increases on unemployment or other unintended consequences in your supply chains.
Join forces with other ETI members, companies, NGOs and trade unions, to share lessons on working towards living wages.

Nike, Sustainable Business Report^{^[19]}

Fair compensation, meaningful benefits

Every contract factory worker in our supply chain has the right to a standard of living that’s adequate to support them and their families. We, like many other brands, have committed to work with our suppliers to progressively meet employees’ basic needs, including some discretionary income. We believe that the wages can increase as overall factory operational efficiency improves.

A better run factory should be more profitable and should then be able to pay higher wages, in exchange for benefits such as lower turnover, higher productivity, and better quality product. Workers are key to delivering on the promise of high quality and high productivity, and need to be compensated accordingly.

Since FY15, we have partnered with a leading academic, factory management, workers, and third-party experts to see if we could increase the value created in a factory and see it shared between management and workers.

Our pilot tested three different approaches, each focusing on productivity improvements, shared value creation, and employee engagement.

After collecting baseline data, we spent a full year building the foundation of a better running factory, which included all key areas within our Lean 2.0 approach. These covered line operations, supervisory skills, leader standard work, relief teams, engagement and communication processes, social dialogue, stress resilience activities, and management skills. During the second year, we tested different ways to align compensation with Lean principles, make pay more transparent to workers, and empower workers to participate in decision-making and problem-solving.

The results show that worker agency – their ability to voice their views and opinions – was important to good business performance. Collaborative problem solving between workers and supervisors increased, while self-reported levels of stress fell. Key business metrics, like turnover, productivity, and profitability, all improved. And, importantly, take-home pay went up.

H&M, Fair Living Wage Strategy

The people making H&M group’s products should have good working conditions and earn a fair living wage. For us, this is indisputable and the reason why we have developed a global fair living wage strategy.

We define a fair living wage as one which satisfies the basic needs of workers and their families as well as providing some discretionary income. A fair living wage should be revised annually, and negotiated regularly.

Improved workplace dialogue and industrial relations – where freedom of association is respected, where workers’ representatives have a voice and where trade unions can negotiate and bargain collectively – are preconditions for lasting improvements for the garments workers in all areas of working conditions, including fair living wages, but also for stable and predictable production markets. That is what our Fair Living Wage strategy, that we developed in 2013, is built upon. Here’s how we work:

We engage in dialogue with local governments to further develop the legal framework needed for improved industrial relations.
We engage with factory owners to enable them embracing the importance of well-functioning industrial relations as well as implementing well-functioning wage management system. Improved wage management systems and workplace dialogue are implemented at an increasing number of factories and countries.
We train workers and management about their rights and responsibilities and facilitate the democratic election of employee representatives through trade unions or worker committees. For example, in 2017, 100% of the garment manufacturer units in Bangladesh producing for us, conducted democratic election of worker representatives. In total, 2,882 persons were elected and 40% of those were women.
We ensure that we maintain good purchasing practices by being long-term and stable business partners which helps enable factories to pay a fair living wage.
To really drive our fair living wage strategy forward we also collaborate with industry experts, NGOs, unions, stakeholders and other brands. One example is our collaboration through ACT (Action, Collaboration, Transformation) (…)

Lawton and Pennycook, Challenges and Opportunities of a Living Wage^{^[20]}

Key findings

For over a decade the living wage has served as a rallying cry for decent pay above the national minimum. Harnessing the power of social norms, it has raised the profile of working poverty and has broadened the debate about low pay. Much of the idea’s power lies in its simplicity; the view that working people should be paid enough to afford a minimum acceptable standard of living. And much of its vibrancy lies in a bottom-up, community organising approach, which has caught the imagination in a world in which worker empowerment was often assumed to be in serial decline.

The question is: how can public policy support a civil society campaign without undermining these great strengths? The answer will not be a Whitehall [British government] diktat and nor is it likely to be a single, simple policy ruse. Government will need to find ways of working in partnership with business, workers and civil society and adopt a mixture of approaches, leading by example, unleashing data into the hands of campaigners, raising the heat on social norms, and finding new ways to reward local areas for innovation.

Reynaud, The ILO and the Living Wage – A Historical Perspective^{^[21]}

The objective, as it was stated, is to provide or ensure to all workers either “an adequate living wage”, in Part XIII of the Treaty of Versailles [1919], or “a minimum living wage”, in the Philadelphia Declaration [1944] as well as in the 2008 Declaration, which just quoted the previous Declaration. But further to these solemn statements, the concept of a living wage does not appear in ILO’s instruments related to the closely linked question of minimum wages, which concern the machinery of “minimum wage fixing”.

Recently, there has been a renewed interest in the living wage, notably among multi-national enterprises and NGOs (…) From the beginning the notion of a living wage was linked to that of a minimum wage, and we will see how the principle, from an objective, became a criterion among various criteria in minimum wage fixing and was finally subsumed under the criterion of the “needs of workers and their families”.

The Treaty of Versailles [establishing the International Labour Organization states in] the preamble: “[…] whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required: as, for example, […], the provision of an adequate living wage1, […].”

The Declaration of Philadelphia was adopted by the International Labour Conference during its 26th Session in Philadelphia on 10 May 1944 (…): “(d) policies in regard to wages and earnings, hours of work and other conditions of work calculated to ensure a just share of the fruits of progress to all, and a minimum living wage to all employed and in need of such protection”.

Wages are an especially important issue for the ILO since its origin. They are essential for workers as the source of their livelihood and, at the same time, low wages are used in some countries as a comparative advantage in international trade. The tension between these two dimensions is closely linked to the very reason for establishing the Organization in 1919: to avoid social unrest that could imperil “the peace and harmony of the world” in improving labour conditions, in the context of international economic competition and free trade. With the experience of the pre-WWI economic globalization – the “first globalization” –, it was clear for the negotiators at the Paris Conference that to improve labour conditions worldwide an international labour organization was needed, as “the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries” (Treaty of Versailles, Part XIII, preamble, par. 3). Among the urgent priorities for improvement, they identified wages and set an ambitious objective for them: the provision of an adequate living wage, understood as a minimum wage.

The explicit aim [of the International Labour Office, the permanent secretariat of the ILO] was to measure the extent of social dumping, the comparative advantage of reducing the cost of production through wages limitation. (…) [At the 1927 ILO Conference], Britain, as a major industrialized country with minimum wage legislation, was obviously keen to have other countries adopt such legislation and ensure a level playing field in international trade. Other delegates had a very cautious reaction to the initial proposal, even though it was a “modest one”, only dealing with minimum wage fixing machinery. After discussion, revision and clarification, the proposal was finally adopted with the clear understanding that it had a very limited scope: the intention was in no way to fix wages or an international minimum by a convention, but just to set general principles for national governments to establish minimum wage-fixing machinery. (…)

The issue of minimum wages came back on the agenda of the ILO in the 1960s. The context was dramatically different from the 1920s, especially with the substantial expansion of ILO membership and a corresponding wider variety of interests represented with the great number of new Nation States in the previously colonized territories. (…) This led to the adoption by the Conference in June 1970 of the Convention 131 and Recommendation 135 on Minimum Wage Fixing. The objective of a “living wage” is re-introduced in these instruments under the notion of “the needs of workers and their families” as a criterion to determine the level of minimum wages, taking into account the general level of wages in the country, the cost of living, social security benefits and the relative living standard of other social groups. But economic factors should also be taken into consideration in fixing minimum wage levels, including the requirements of economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment.

Background (Cambodia)

Minimum Wage Setting in Cambodia^{^[22]}

Instruments (Cambodia)

Labour Law^{^[23]}

Article 103: Wage includes, in particular:

actual wage or remuneration;
overtime payments;
commissions;
bonuses and indemnities;
profit sharing;
gratuities;
the value of benefits in kind;
family allowance in excess of the legally prescribed amount;
holiday pay or compensatory holiday pay;
amount of money paid by the employer to the workers during disability and maternity leave.

Wage does not include:

health cares;
legal family allowance;
travel expenses;
benefits granted exclusively to help the worker do his or her job.

Article 104: The wage must be at least equal to the guaranteed minimum wage; that is, it must ensure every worker of a decent standard of living compatible with human dignity.

Article 105: Any written or verbal agreement that would remunerate the worker at a rate less than the guaranteed minimum wage shall be null and void.

Article 107: The guaranteed minimum wage is established without distinction among professions or jobs. It may vary according to region based on economic factors that determine the standard of living.

The minimum wage is set by a Prakas (ministerial order) of the Ministry in Charge of Labor, after receiving recommendations from the Labor Advisory Committee. The wage is adjusted from time to time in accordance with the evolution of economic conditions and the cost of living. Elements to take into consideration for determining the minimum wage shall include, to the extent possible:

the needs of workers and their families in relation to the general level of salary in the country, the cost of living, social security allowances, and the comparative standard of living of other social groups;
economic factors, including the requirements of economic development, productivity, and the advantages of achieving and maintaining a high level of employment.

Article 108: For task-work or piecework, whether it is done in the workshop or at home, the wage must be calculated in a manner that permits the worker of mediocre ability working normally to earn, for the same amount of time worked, a wage at least equal to the guaranteed minimum wage as determined for a worker.

Article 357: The Labor Advisory Committee has the mission primarily to study problems related to labor, the employment of workers, wages, vocational training, the mobility of labor force in the country, migrations, the improvement of the material and moral conditions of workers and the matter of labor health and safety.

The Labor Advisory Committee has the following duties:

formulate recommendations on the guaranteed minimum wage;
render advice beforehand in order to extend the scope of a collective agreement or, if there is no collective agreement, give advice eventually on any regulation concerning the conditions of employment in a given profession or in a certain sector of activity.

Art 369: Those guilty of violating the provisions of Articles (…) 104 [guaranteed minimum wage] (…) are liable to a fine of sixty-one to ninety days of base daily wage or to imprisonment of six days to one month.

Prakas on Minimum Wage for Textile, Garment and Footwear Sector^{^[24]}

Article 1: To add $3 on top of $187 (One Hundred and Eighty Seven US Dollars) proposed by the National Minimum Wage Council as the monthly minimum wage for workers in textile, garment and footwear sectors for 2020.

The minimum wage for workers in textile, garment and footwear sector for 2020 shall be set officially as $190 (One hundred and Ninety US Dollars only) per month. (…)

DFDL, Cambodia Legal Update: Law on Minimum Wage^{^[25]}

The Law on Minimum Wage was promulgated on 6 July 2018 and now guarantees a minimum wage for employees covered by the provisions of the Labour Law. A tripartite National Council on Minimum Wage (“NCMW”), comprised of the government, employer representatives, and employee representatives, will be established to study, research and provide recommendations on the determination of minimum wages and other benefits for persons covered by the Labour Law. Subject to the discretion of the NCMW, key factors in determining the minimum wage include (1) social considerations (such as inflation rates and living expenses); and (2) economic considerations (such as productivity, competition, job market status and profitability of a particular industry). The discussions on minimum wages by the NCMW must be undertaken annually (unless decided otherwise by the NCMW) and in accordance with the procedures set out in this new law.

Based on the NCMW’s recommendation, the minimum wage will be determined by a Prakas issued by the Ministry of Labour and Vocational Training (“MLVT”) and must take effect from 1 January of the subsequent year. The MLVT may prioritize implementation of the minimum wage based on economic activity, industry sector or region. (…)

World Bank, Growth in Cambodia Remains Strong^{^[26]}

Driven mainly by resilient construction and garment sectors, Cambodia’s economic growth remains strong, projected to reach 6.9 percent in 2017 and 2018, according to a new World Bank report. While the outlook remains favorable, there are some signs of moderation, in particular in the construction sector (…). Garment exports are facing strong completion. Due to US dollar appreciation, rising labor costs, and competition from other regional low-wage countries, growth in garment exports decelerated, expanding at 8.4 percent year-on-year in 2016, compared with 12.3 percent in 2015. (…)

The report highlighted key areas that will help safeguard Cambodia’s strong growth:

Boosting labor productivity to compensate for rising real wages. A top priority will be to improve the quality of basic education and to promote vocational and technical skills, while reducing energy costs to attract and compete in high value-added and more sophisticated manufacturing;
Improvements in public service delivery, given that the public sector is a major service provider and a key facilitator for private sector development;

Enhanced efforts to improve public investment management legal framework and implementation capacity in order to scale up government-financed capital spending to compensate for a gradual reduction in development partner-funded public capital investment.

ILO, Strong Export and Weak Employment in the Cambodian Garment Sector^{^[27]}

3. Employment and wages

(…) The minimum wage of the garment and footwear sector increased every year between 2013 and 2017, rising from US$ 80 in 2013, to US$ 100 in 2014, to US$ 128 in 2015, to US$ 140 in 2016 and US$ 153 from 1 January 2017. The rising minimum wage in recent years has generated increasing discussion of the need to monitor wage trends and to ensure sustainable wage policy in this largest exporting sector. The increase in the minimum wage has contributed to improving living conditions of hundreds of thousands of low-paid workers, but at the same time economic factors must be taken into account in adjusting wages.

Largely due to these minimum wage increases, the average monthly earnings (including overtime) of Cambodia’s garment and footwear workers increased from US$ 145 in 2014, to US$ 175 in 2015 and to US$ 195 in 2016. If this average monthly wage is calculated in inflation-adjusted (real) terms, the real average monthly wage of these workers rose from US$ 127 in 2014 to US$ 151 in 2015 and to US$ 163 in 2016, expressed in 2010 prices. In other word, real average monthly wages/earnings were 8.0 per cent higher in 2016 than they were in 2015; this rate of real average monthly wage growth was down from 19.3 per cent the previous year.

Schill, The Footwear Sector – New Opportunities for Cambodia?^{^[28]}

Employment and wages in the footwear sector Cambodia’s main competitors in footwear production in Southeast Asia are Vietnam and Indonesia (see table 1). These three countries also have similar minimum monthly wages in the sector: Cambodia (US$182), Vietnam (varies across regions, US$180 in Vinh Duong, US$171 in Dong Nai), Indonesia (varies across regions, US$193 West Java, US$272 Banten). Monthly wages in both the garment and footwear sectors have almost become equal for the first time in 2018. Before that, the wage in the footwear sector has been consistently lower than in the garment sector.

Banerji et al., Review of H&M Group’s Roadmap to Fair Living Wage^{^[29]}

Executive Summary

H&M group has taken bold action in becoming the first apparel brand to address the complex wage issue and set significant public goals to help achieve what it terms “fair, living wages” (FLW) for garment workers. It has sought to deliver its Fair Living Wage Roadmap (FLWR) amid challenging market conditions, political instability and intense stakeholder scrutiny. (…)

The Roadmap has four interlocking components:

H&M group action to improve its purchasing practices and planning to enable suppliers to pay a Fair Living Wage.
Supporting suppliers in developing fair and legal contracts and establishing pay structures that enable a Fair Living Wage.
Developing better industrial relations, focusing on worker representation through social dialogue at factory level to empower workers to negotiate improved pay and labour conditions.
Encouraging government to set up tri-partite process that sets minimum wages through a fair negotiation with labour market stakeholders and reviewing annually.

The goals H&M defined in 2013 were:

By 2014, develop a roadmap addressing H&M’s purchasing practices to improve existing price method and improve purchasing plans.
By 2014, implement and evaluate in three model factories the Fair Wage Method, and by 2018 all H&M’s strategic suppliers should have well-functioning pay structures.
In 2013, launch an industrial relations project in Cambodia, and in 2014 expand H&M group’s existing social dialogue project in Bangladesh to cover 15% of suppliers’ factories and by 2018 100%.

3.4 Implementation

H&M group sought to influence change among suppliers, workers, its own purchasing practices, and within the governments of production countries.

3.4a Suppliers: Effective wage management structures.

(…) H&M group piloted the FWN’s Fair Wage Method (FWM), based on the 12 Dimensions of a Fair Wage, in three pilot factories: two in Bangladesh and one in Cambodia. The FWM is a comprehensive system encompassing 12 key aspects that combine to achieve fair wages, based on extensive research by Professor Daniel Vaughan-Whitehead and associates. Following the pilot, H&M group engaged with the FWN to help deliver the FWM in 336 strategic factories in Bangladesh, Cambodia, India, Turkey, Vietnam and Pakistan. This brought about numerous improvements, including implementation of wage grids, reforms of pay systems, shift from piece rates to basic wage plus bonuses, reduction of working hours without wage loss for workers, and fair wage remediation plans signed by both employers’ and workers’ representatives. Based on this experience, H&M group subsequently developed its own, slightly less comprehensive Wage Management System (WMS), in order to reach more workers by making the requirements more readily understandable for suppliers, and a clearer business case for suppliers to participate. By training a further 190 factories on H&M group’s own system, the company reached a combined total of 500 factories by the end of 2018.

4.4 Observations: Suppliers – Wage Management Systems

(…)The FWN’s own 2017 evaluation of 198 of the 336 suppliers implementing the FWM found that while there was definitely room for improvement on remunerating workers in line with their skills and workplace dialogue, wages had typically risen in participating factories. In Cambodia, wages at the 19 participating factories had risen by an average of 16%, compared to the initial assessment in 2016, which could be partially attributable to the FLWR but also reflects a general trend in Cambodia. (…)

The Garment Worker Diaries study, a 2016-2017 research project on garment workers’ wages in Bangladesh and Cambodia, led by Microfinance Opportunities (MFO), has also found that “by almost every variable, workers are better off in H&M group factories”. (…)

4.6 Observations: Company – Purchasing practices

(…) H&M group has shared this approach through a workshop in Cambodia with all ACT members, through which members explored how to take wages out of the price equation. It has also introduced an app to help calculate wage components, including cost per minute and factory efficiency. Once the wage element is set aside, suppliers and H&M group can look at where else they can make savings instead. H&M group describes this as a “scientific” process for establishing purchasing practices that support decent wages. (…)

4.7 Observations: governments – minimum wage advocacy

(…) In Cambodia, around 50% of all garment workers work for ACT member suppliers, most of whom supply H&M group. The company therefore perceived a strategic advantage in opting to use ACT as a primary vehicle to help achieve its ambitions on minimum wage advocacy as well as its purchasing practices ambitions. However, CCC considers that this has also slowed the rate of progress on H&M group’s original Roadmap commitments. The campaign group also suggests that ACT, despite its good intentions, ought to agree binding goals, in a similar way to the Bangladesh Accord on Fire and Building Safety, in order to drive concrete progress. This is a matter for ACT as a whole to consider, rather than H&M group in particular. (…)

Edwards et al, Corporate Commitments to Living Wages in the Garment Industry^{^[30]}

Over the last decade, leading global corporations in the garment industry have begun to make commitments to deliver living wages to the workers that make their clothes. For instance, in 2013 the Swedish multinational fashion retailer H&M published its Fair Living Wage Roadmap which set public goals for the payment of a ‘fair living wage’ in its supply chains. PVH, the global apparel company, worth US $9.7 billion, that owns brands like Tommy Hilfger and Calvin Klein, has ‘a goal of paying all workers no less than a living wage.’ Primark’s supplier code of conduct now requires that ‘living wages are paid’. Major multinational corporations (MNCs) are also increasingly signing up to participate in and co-operate with external initiatives that aim to achieve living wages for workers through a variety of means. These include, for example, schemes, agreements and wage commitments promoted by organisations such as the International Labour Organisation (ILO) and multi-stakeholder initiatives (MSIs) such as ACT (Action, Collaboration, Transformation) and the Fair Labor Association’s Fair Compensation strategy. (…)

BOX 1: Prominent External Initiatives Relevant to Living Wages in the Garment Industry

ACT (Action, Collaboration, Transformation): ACT is an agreement between global corporations and IndustriALL global union. It aims to implement industry-level national collective bargaining agreements (efforts are currently focused in Cambodia and Turkey) in an effort to secure a wage that companies will take into account in their purchasing practices.
Fair Labor Association Fair Compensation Programme: This programme offers companies a Workplace Code of Conduct to be drawn upon and also a Wage Data Collection Toolkit that enables corporations to benchmark suppliers’ wage payment and progress based a number of wage indicators such as the Asia Floor Wage, World Bank gross national income per capita and prevailing industry wages. It increases visibility of wage benchmarks but does not offer a broad strategy for living wage payment.
German-Dutch Sustainable Textiles Cooperation Agreement: These initiatives are German and Dutch state initiatives that aim to harmonise sustainability requirements and assist companies in implementing due diligence. Companies may opt into both simultaneously. The German initiative announced a 2018 Partnership Initiative on Living Wages in Cambodia and Indonesia, aiming to raise wages above the minimum wage, defining a living wage as one that allows ‘a worker to have a dignified existence’.

Sotheary, Unions: Change Minimum Wage Law^{^[31]}

More than 40 unions have joined together to ask the Labor Ministry to make changes to 10 articles in the draft Minimum Wage Law, saying the law did not cover all sectors and restricted the rights of union representatives in wage negotiations among a host of other issues. More than 50 members from the 40 unions, along with international civil society organizations, met yesterday to discuss the law and review its six chapters and 33 articles. (…)

“The point that we will strongly discuss is article 9, which says that the minimum wage may vary by region or economy,” he said. “We cannot accept this because if the minimum wage varies by region, investors will see the opportunity and only invest in areas that are far away. It will affect the national minimum wage negotiations, which may decrease from $153 to $120.”
Unions also plan to ask the ministry to remove article 28 of the law, which lays out punishment for individuals or organizations that do research on wages in the country. The law says that only the National Council for Wages has the right to study wages in Cambodia and anyone found doing their own investigation will be fined 10 million riel (about $2,500). “It’s a terrible thing that is unacceptable for the country and the wage law should not have made it because it is similar to the union law, which restricts the freedom of unions,” he said. (…)

WageIndicator Foundation, Living Wage Series – Cambodia^{^[32]}

The living wage is based on the concept that work should provide an adequate income to cover the necessary living costs of a family. WageIndicator uses prices from the cost of living survey to calculate living wage in more than 60 countries. The living wage is an approximate income needed to meet a family’s basic needs including food, housing, transport, health, education, tax deductions and other necessities.

The following table summarises the varying expenditure and income needs for the three commonly occurring family household compositions.

Expenditure and living wage calculation (monthly rates in riel)

	Typical family	Standard family	Single-adult
	from-to	from-to	from-to
Food	666300-930400	567000-791900	141800-198000
Housing	508900-837400	508900-837400	171100-269600
Transport	40000-80000	40000-80000	20000-40000
Health	40000-100000	40000-100000	10000-25000
Education	80000-150000	80000-150000	0
Other costs	66800-104900	61800-98000	17200-26600
Total Expenditure	1402000-2202700	1297700-2057300	360100-559200
Net Living Wage	737895-1159316	720944-1142945	360100-559200
Gross Living Wage	804300-1263700	785800-1245800	392500-609500

Family living wages (monthly rates in riel)

There is not a single answer to what is the adequate cost of living. The result is complex, as the cost of living varies by household composition, location, and employment pattern. The following table presents the Living Wage estimates for a set of most common family household compositions and under different assumptions about working hours.

	from-to
Typical family (two parents + 2.7 children, 1.9 working)	804300-1263700
Standard family (two parents + 2 children, 1.8 working)	785800-1245800
Two parents and two children, 2 working	707300-1121200
Two parents and two children, 1.5 working	943000-1495000
Two parents and two children, 1 working	1414500-2242500
Two parents and three children, 1.9 working	829900-1299500
Two parents and four children, 1.9 working	915300-1418700
Single-adult without children, 1 working	392500-609500

Living wages in context (monthly rates in riel)

The Minimum Wage is a national legally binding obligation on employers which often make no reference to a living standard. Living Wage describes the adequate living standard. The common goal of the many living wage campaigns currently taking place all over the world is to lift Minimum Wages levels to those of the Living Wages. WageIndicator presents Living Wages jointly with Minimum Wages, aiming to raise awareness concerning the remaining differences in levels. Living Wages are presented in context with other wage indicators including prevailing wages of workers over recent years.

	2015	2016	2017	2018
Minimum wage	512000	560000	612000	680000
Living Wage – Single Adult	.-.	.-.	.-.	392500-609500
Living Wage – Typical Family	.-.	.-.	.-.	804300-1263700
Real wage of low-skilled worker	.-.	.-.	.-.	159500-517300
Real wage of medium-skilled worker	.-.	.-.	.-.	883700-1245700
Real wage of high-skilled worker	.-.	.-.	.-.	1398800-2007200

IndustiALL, Adidas, Get off the Sidelines!^{^[33]}

On 29 October, demonstrators in New York City called on major sports brand Adidas to join ACT, the global initiative on living wages. By refusing to join ACT, Adidas is effectively standing in the way of progress towards a living wage for garment workers. (…)

At the rally outside the Adidas flagship store in New York City, around 40 trade unionists called on the sports brand to help reform the industry and stop producing products through poverty wages.

“We are demonstrating here today in solidarity with garment workers in Cambodia and Myanmar and to tell Adidas to get off the sidelines and join ACT, the global initiative on living wages,” (…)

“Suppliers in countries like Cambodia, Myanmar and Vietnam need to know that big brands, including Adidas, are on board,”says Christina Hajagos Clausen, IndustriALL garment director.

IndustriALL, Unions Demand Sectoral Bargaining to Achieve Living Wages^{^[34]}

IndustriALL Global Union garment unions in Cambodia have welcomed a raise in the monthly minimum wage from US$182 to US$190 but reiterated calls for sectoral collective bargaining as a means to reach a living wage. (…)

IndustriALL and its affiliates held two days of meetings and discussed strategies for achieving a living wage through linking brands’ purchasing practices with a sectoral collective bargaining agreement. The affiliates welcomed the ACT brands’ purchasing practice commitments as they agreed that poor purchasing practices lead to excessive overtime, underpaid wages and short-term contracts. In a roundtable discussion “Towards a living wage” IndustriALL affiliates together with major brands sourcing from Cambodia (H&M, Inditex, Primark, Next and Fastretailing) discussed how to achieve better wages in the Cambodian garment sector. (…)

Athit Kong, President of CCAWU and IndustriALL textile and garment sector co-chair, stated: “As Cambodian trade unions, we will continue our fight for better wages and acknowledge the support by the 20 global brands and retailers who have made a public commitment to reform their purchasing practices and actively support sectorial collective bargaining. But for a living wage to become a reality for thousands of Cambodian garment workers – brands such as Adidas, Timberland, North Face need to get off the sidelines and make the same commitment to work with IndustriALL and national trade unions.”

IndustriALL, Garment Unions Step Closer to a Living Wage^{^[35]}

As part of IndustriALL’s living wage campaign garment unions in Cambodia and Myanmar met last week on 20 – 22 August 2018 to develop and agree on joint demands and strategy for national sectoral bargaining in the apparel and footwear sector. Garment unions also discussed and debated brand purchasing practices and their impact on wages and working conditions. The workshops are part of a global programme between IndustriALL Global Union and the Friedrich Ebert Stiftung (FES), which focuses on technical assistance for IndustriALL’s garment affiliates in strengthening their living wage campaigns.

Bird et al., Resilience and Sustainable Poverty Escapes in Rule Cambodia^{^[36]}

The labor market has also grown and structurally transformed towards wage-based employment in manufacturing and services sectors and increased diversity in rural incomes. Growth in textile and apparel exports, the tourism and agriculture sector, and agricultural commodities (e.g., paddy rice and cassava) have helped drive poverty reduction, with employment growth in garments and construction providing low skill, low barrier to entry work, particularly for large numbers of poorly educated rural women. (…)

Non-agricultural self-employment and wage income: Increasingly important pathways

Households are increasingly dependent on self-employment and wage income (panel data analysis) and poverty escapes rely on non-farm activities (qualitative analysis). In the panel data, employment of the household head in non-farm sector (palm juice/ sugar production, small business/petty trade, land sales, migration) is associated with a 71% lower risk of impoverishment relative to a sustained escape from poverty in the regression results. Income sources have changed since 2008 with wages becoming markedly more important in 2011 (5% of all income), 2014 (22% of all income) and 2017 (23% of all income). Seeking work as a casual agricultural laborer is adopted as a coping strategy by some following harvest failure or other shocks, as it will provide a daily income, but for others from poorer households, casual work is an important component of a diversified livelihood (life history interviews) and casual agricultural work is identified in 14 of the 60 life history interviews. (…)

Phon et al, Impact of Increased Minimum Wage on Labor Market and Economy^[37]

I. Introduction

This paper will describe and analysis the impact of labor force in Cambodia and minimum wage constraints in most sectors, especially in labor market, sustainable growth, economic and clearer image of the current labor and future trends by observing the following key economical demographic trends, recent labor market trends, key characteristics of the labor market and lessons from dynamic analysis (demand & supply side) in terms of job, skills content and growth. This also will discover some factors and other than educations that are restricting labor force advancement. These reviews are about the employment and possibility and productivity implications and acquaintances between patterns of growth, productivity and employment intensity and which growth is inclusive to sustainable economy growth of Cambodia. (…)

VI. Economic Impacts from minimum wage and labor force movements in Cambodia

(…) the unemployment rate of Cambodia is still lesser than 1 percent since 2008 -2016 whiles the gain of labor forces are significantly increased every years too. As the result of this, we can say that the minimum wage setting seems not effect too much to labor forces and trade till now while the some definitions of labor needs are not defined well too. (…) In Cambodia, most of workers are women who migrated from provinces, Hence this means that the increase of minimum wage can make women getting more benefits than men in this garment sector. (…)

Market equilibrium with minimum wage regulation and labor force still have occurred many critical issues to close it while the public policies and unions still update all the time as these. Furthermore, worker union still keens to gain more salary to the workers while the government tries to ignore them. Even on 6 July, 2015, the rental regulation was passed to help the worker ‘s expenditure or students and low income earners on rental room, banning from landlord of increasing rent fee in two years after contract signed. (…)

VII. Challenges and some implications

The minimum wage regulation seems fine for worker and labor force and it makes better for welfare of people or worker in which the higher demand of employment in market while the cheap labor burst more capital fly to Cambodia and opportunities to invest. However, some challenges still occurred in this emerging country as well as applied regulations of local garment factories and companies and workers unions, lack of skilled labors and human resource development, social protection to fight vulnerabilities, inequality of gender, healthy industrial environments and well-timed and trustworthy labor market figures. (…)

Questions

How large is the gap between the minimum legal wage and the living wage in Cambodia. How does this gap vary by industry? In what industry is the gap the smallest?
Do you think that the current Cambodian minimum wage setting mechanism is likely to achieve living wage in the near future?
What are the challenges for businesses to achieve living wage for workers in garment and footwear sectors in Cambodia?
Who are the relevant stakeholders that can do more to achieve living wage in Cambodia?
Would multistakeholder partnerships be likely to achieve progress on wages in Cambodia?

Main Aspects

Hours of work (per day and per week)
Overtime: voluntary/forced
Overtime compensation
Part-time work
“Zero-hours” contracts (on-call work, hiring workers with no guarantee of work)
Principle of weekly rest
Principle of equal treatment (of part-time workers with full-time workers)
Work– life balance and health of workers
Exceptional circumstances (that justify overtime)
Record keeping (and falsification of working hours)
Purchasing practices (of buyer companies)
Paid annual leave

Background

ILO, Labour Protection in a Transforming World of Work^{^[1]}

55. Long working hours not only have profound consequences on workers who have little influence over their jobs or work environment (such as domestic workers), but they also affect workers who have more discretion and who receive higher compensation (such as bankers and lawyers). For others, often the problem is not that they have too many hours, but rather that they have too few, affecting their income security, or hours that are so varied that it is difficult for them to organize their personal and family responsibilities.

56. Long working hours prompted the first regulations on working time; today most countries have national limits on working time, overtime, overtime pay and annual leave. Nevertheless, many workers do not benefit from these protections either because they are self-employed and thus excluded from the scope of labour laws, because they are in an occupational category that is sometimes exempted from the law, or because they work in informal or formal employment arrangements where the law is not complied with.

68. Two other important challenges in working time are variable and unpredictable hours, especially on-call work, and the growing encroachment of work into personal time as a result of information technologies. On-call work is characterized by short advance notice of schedules, large fluctuations in work hours and little or no input by workers into the timing of work. In the retail sector, the growth of unpredictable schedules is due in part to the development of sophisticated software used to track the flow of customers, allowing managers to assign just enough employees to handle the anticipated demand. (…)

72. New information and communication technologies increasingly permit employees to work at any time and from anywhere. Yet work-related telephone calls and email contacts outside of regular business hours can have negative effects on workers’ mental health and work–life balance. (…)

29. (…) Limits on working hours are an important component of workplace safety, as excessive working hours are associated with greater risk of accidents at work. The health literature has long recognized that working longer than 48 or 50 hours a week on a sustained basis can be detrimental to an individual’s health. Limits on working hours are also needed to allow workers to balance work and personal responsibilities. (…)

Instruments

Universal Declaration of Human Rights^{^[2]}

Article 24: Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

ILO, Hours of Work Convention^{^[3]}

Article 2: The working hours of persons employed in any public or private industrial undertaking or in any branch thereof, other than an undertaking in which only members of the same family are employed, shall not exceed eight in the day and forty-eight in the week, with the exceptions hereinafter provided for (…)

ILO, Part-Time Work Convention^{^[4]}

Article 4

Measures shall be taken to ensure that part-time workers receive the same protection as that accorded to comparable full-time workers in respect of:

(a) the right to organize, the right to bargain collectively and the right to act as workers’ representatives;

(b) occupational safety and health;

Article 5

Measures appropriate to national law and practice shall be taken to ensure that part-time workers do not, solely because they work part time, receive a basic wage which, calculated proportionately on an hourly, performance-related, or piece-rate basis, is lower than the basic wage of comparable full-time workers, calculated according to the same method.

Article 6

Statutory social security schemes which are based on occupational activity shall be adapted so that part-time workers enjoy conditions equivalent to those of comparable full-time workers; these conditions may be determined in proportion to hours of work, contributions or earnings, or through other methods consistent with national law and practice.

ILO, Declaration on Social Justice for a Fair Globalization^{^[5]}

I. (…) the four equally important strategic objectives of the ILO, through which the Decent Work Agenda is expressed (…):

(ii) developing and enhancing measures of social protection – social security and labour protection – which are sustainable and adapted to national circumstances, including: (…)

policies in regard to wages and earnings, hours and other conditions of work, designed to ensure a just share of the fruits of progress to all and a minimum living wage to all employed and in need of such protection

ILO, Survey Concerning Working-Time Instruments^{^[6]}

3. The number of hours worked, the length and number of rest periods and how they are organized in a day, week, month or year, have important consequences for both workers and employers. The regulation of working time and rest periods also plays an important role in upholding the principle, enshrined in the Treaty of Versailles of 1919 and in the Declaration of Philadelphia of 1944, that labour is not a commodity and should not be regarded merely as an article of commerce. (…) The ILO has adopted a number of instruments covering specific aspects of working time and particularly hours of work, weekly rest, paid annual leave, night work and part-time work. Moreover, a number of sectoral ILO instruments contains provisions on working time.

7. The regulation of working time is all the more important given the transformations currently taking place in the world of work. Some of these changes have been facilitated by developments and improvements in technology and communications which are disrupting, and even contributing to the elimination of, many of the traditional time and space dimensions in work. Work today is increasingly performed at any time and almost anywhere, which has consequences for the organization of work and production with the development, among others, of a “24/7” society. While in today’s world of work the agricultural and manufacturing sectors continue to be very important, by 2013 nearly half of all employment around the world was located in the burgeoning services sector. In contrast to other sectors, the nature of the services sector often means it must respond to fluctuating demands and to time periods that are both shorter and often less predictable. However, in a world of instant communications and sophisticated technology, even the manufacturing industry is not immune from the pressures of being able to respond “on demand” to changing consumer trends (for example, in fashion, but also in many other commodities) through “in time” production. This, in turn, imposes demands for organizational flexibility which may require workers to work in non-traditional ways (or in non-standard employment) which are characterized, among other aspects, by variability of time (across a day, week, and/or a longer period). These are all part of the pressures arising out of globalization. There is no doubt that market competition has intensified and created pressure for enterprises to become efficient and reduce costs, and technologies have allowed the enormous increase in the transnational provision of global services. While this has positive effects in terms of increased labour market participation and productivity, it may also have negative effects on workers’ health and well-being, as the boundaries between work and private life tend to become blurred. This has always been a feature of work for women, who have traditionally carried out much of their unpaid work from home (such as taking in laundry, and child-minding); with new technologies the phenomenon of “home-working” has increased exponentially.

[working hours]

178. First, the Committee observes that, with regard to the variable distribution of normal hours of work, the daily limit of nine and ten hours per day allowed by Conventions Nos 1 and 30, respectively, are not given effect in a number of countries. Moreover, the Committee observes that the averaging of hours of work over periods longer than a week has become a frequent practice in many countries, and that the reference period used to calculate hours of work may be as long as one year. In this regard, the Committee recognizes that flexible modern working-time arrangements, such as the averaging of hours of work, may call into question the relevance of certain restrictions imposed by the Conventions on the maximum duration of daily and weekly hours of work. However, the Committee wishes to emphasize the importance of reasonable limits and protective safeguards in devising such flexible arrangements so as to ensure that modern working time arrangements are not prejudicial to the health of workers or to the necessary work– life balance (…)

179. Second, the Committee observes that the circumstances justifying recourse to exceptions to the normal statutory hours of work are not always clearly defined, or go beyond those recognized in the Conventions. In this respect, the Committee wishes to emphasize the fundamental importance of limiting recourse to overtime to clear and well-defined circumstances.

[weekly resting time]

202. The principle of uniformity enshrined in Article 2(2) of Convention No. 14 and 6(2) of Convention No. 106 refers to the collective character of weekly rest with a view to ensuring, wherever possible, that it is taken at the same time by all workers on the day established by tradition or custom. The social purpose of this principle is to enable workers to take part in community life and in the special forms of recreation available on certain days.

[overtime]

266. (…) certain provisions of international labour Conventions seek occasionally to protect workers against what might initially appear to be their own “preferences”, for instance in case they are tempted (for reasons of securing an additional financial gain) to renounce elementary protection rights, especially in terms of hours of work, weekly rest and annual holidays. Accordingly, the Committee has consistently called for workers who are deprived of their weekly rest to be granted compensatory rest in all cases, irrespective of any monetary compensation. [principle of weekly rest]

[annual leave]

Article 12 of Convention No. 132 provides that ‘Agreements to relinquish the right to the minimum annual holiday with pay prescribed in Article 3, paragraph 3, of this Convention or to forgo such a holiday, for compensation or otherwise, shall, as appropriate to national conditions, be null and void or be prohibited.’

374. Emphasizing the importance of workers effectively benefiting from their right to a period of relaxation and leisure every year, the Committee encourages all governments to take the necessary measures to ensure that paid annual leave rights are effectively enjoyed and that monetary compensation is offered in lieu of annual leave only in the case of any unused leave upon termination of employment.

[part-time work]

550. (…) A number of factors have contributed to the development of part-time work over the years. It allows employers greater flexibility in planning work, aligning schedules with peaks in demand and retaining workers who cannot commit to full-time work. For the workers, part-time work can help to reconcile family, educational or other obligations, while providing an income, and may at some point lead to full-time employment. Governments have also developed policies to encourage part-time work, particularly for certain groups in the labour market, such as women, young people, the long-term unemployed, and also to encourage older workers to remain in employment. Policies to promote part-time work have also been used to assist workers with family responsibilities.

551. Research suggests that part-time work is used by employers for three different reasons: as a recruitment and retention strategy based on workers’ preferences; to provide optimal staffing and operational flexibility adapted to the demand for labour across the day, week or season; and to create a secondary, less remunerated and more precarious pool of workers, through the generation of low-paid, low-skilled jobs, sometimes by circumventing regulations or collective agreements that protect the wages and other working conditions of full-time workers. Part-time work may also be used by lawmakers as an instrument of employment policy in the fight against unemployment.

Ethical Trading Initiative, The Base Code^{^[1]}

6. Working hours are not excessive

6.1 Working hours must comply with national laws, collective agreements, and the provisions of 6.2 to 6.6 below, whichever affords the greater protection for workers. Sub-clauses 6.2 to 6.6 are based on international labour standards.

6.2 Working hours, excluding overtime, shall be defined by contract, and shall not exceed 48 hours per week.*

6.3 All overtime shall be voluntary. Overtime shall be used responsibly, taking into account all the following: the extent, frequency and hours worked by individual workers and the workforce as a whole. It shall not be used to replace regular employment. Overtime shall always be compensated at a premium rate, which is recommended to be not less than 125% of the regular rate of pay.

6.4 The total hours worked in any 7 day period shall not exceed 60 hours, except where covered by clause 6.5 below.

6.5 Working hours may exceed 60 hours in any 7 day period only in exceptional circumstances where all of the following are met:

this is allowed by national law;
this is allowed by a collective agreement freely negotiated with a workers’ organisation representing a significant portion of the workforce;
appropriate safeguards are taken to protect the workers’ health and safety; and
the employer can demonstrate that exceptional circumstances apply such as unexpected production peaks, accidents or emergencies.

6.6 Workers shall be provided with at least one day off in every 7 day period or, where allowed by national law, 2 days off in every 14 day period.

* International standards recommend the progressive reduction of normal hours of work, when appropriate, to 40 hours per week, without any reduction in workers’ wages as hours are reduced.

Ethical Trading Initiative, Working Hours Clause – Interpretation^{^[2]}

Introduction

The primary aim of clause 6 of the Base Code is to ensure that workers do not work excessive hours; that workers have at least one day off per week; and that any overtime is voluntary and is properly compensated.
The underlying principle behind this part of the Base Code is the preservation of workers’ health and workplace safety. (…)
The ETI Base Code clause on Working Hours must be considered in conjunction with all other aspects of the Base Code, including those related to wages and freedom of association.
The ETI Base Code applies to all categories of workers, including those who may not be covered by national labour law provisions (for example, agricultural workers).

Exceptional circumstances

Finally, the employer must be able to demonstrate that exceptional circumstances apply. Exceptional circumstances refer to unforeseen events, including but not limited to: (…)

o unexpected production peaks: this typically relates to last minute changes to orders, or increases beyond the control of the supplier but does not include foreseeable seasonal production peaks.

How can the company ensure that overtime is voluntary?

When an employer requires workers to work overtime, the employer should clearly communicate to workers that they are free to refuse and that there will be no negative repercussions if they do. To avoid coercion, the employer should ensure that:

if transportation is provided, it is available at the end of the normal work day or shift so that workers who choose not to perform overtime can leave the facility;
the facility doors or gates are unlocked to allow workers to leave freely at the end of their work day;
if daily production targets are used, they are achievable within the standard working hours so employees do not feel pressured to work overtime in order to meet them;
overtime requests are not always directed at the same workers;
the company’s internal policies clearly state that workers are free to refuse overtime;
workers are given sufficient notice of overtime work so alternative arrangements can be made if workers are not able to perform the work; and
workers’ agreement to perform overtime work is documented.

Are there limits on daily working?

The ETI Base Code does not provide specific regulation on the number of hours per day that can be worked. Nevertheless employers should seek to avoid long working days as these may put a worker’s health at risk. There is a duty in the Base Code and national law to provide a safe system of work, which must prevent excessively long work shifts or continuous working. This is because of the health and safety risks that arise from excessive working time. In many countries national law will contain provisions related to either maximum daily working hours, minimum daily rest hours and rest days. It should be remembered that ILO Convention No 1 (1919) called for the adoption of an 8-hour maximum day.

Nike, Sustainability Report 2012^{^[3]}

Excessive Overtime

We continue to evaluate why excessive overtime is a persistent issue in contract factories. During FY11, more than two-thirds (68 percent) of the excessive overtime incidents identified and analyzed through audits of 128 factories were attributable to factors within Nike’s control, primarily forecasting or capacity planning issues, shortened production timelines and seasonal spikes. However, it is unclear how often these factors are directly linked to one of our brands, as some factories also produce products for many other brands. In factories for which multiple brands place orders, it is very difficult to isolate the root cause of production-capacity planning bottlenecks. As a result, we will begin to explore ways to create internal systems that allow us to isolate Nike-caused capacity spikes and imbalances that can contribute to a factory’s inability to effectively manage production planning. In addition, we will begin the process of creating new tools and reporting mechanisms for apparel factories to proactively communicate with Nike when their production team is approaching overtime limits that would be in violation of our standards. We have instituted these reporting requirements in NIKE Brand footwear factories already, and have seen marked improvement in the management of excessive overtime as a result.

We recognize that excessive overtime is a serious issue – in terms of both hours worked and days on the job without a break. We are focusing on these areas through continued analysis of root causes, which has led us to identify and address key business processes upstream from the factory. Variability is one of those root causes. Some of the key variables we have assessed include: seasonality in styles, the lack of predictability in consumer or product demand, and the impact of global economic challenges. We are working to develop our abilities to successfully respond to these real variables without negatively impacting factories or workers.

We are addressing these issues throughout our product-creation process, including via improved forecasting alignment, which involves coordination across geographies, categories and product engines to get the right information and decisions made at the right time. We’re also optimizing our sourcing base in footwear and apparel to handle fluctuations in capacity and to adopt and implement the technologies needed to respond to the demand for emerging styles and products.

Outside of those items influenced by Nike, in some places overtime is expected by both workers and factories, tied to broken models of compensation in which the only way workers can earn more is by working more hours. We recognize that excessive overtime is not sustainable from a worker or business point of view, as the costs are high for both. We are working with factories to build an understanding of these costs in terms of workers’ health and safety, productivity and quality of life, and as a contributing factor to labor turnover. We will continue to track our impact on excessive overtime at factories and believe that the inclusion of excessive overtime in our Sourcing & Manufacturing Sustainability Index will elevate the issue and help us to recognize where and when these issues arise and to factor this aspect of factory performance into our sourcing decisions.

Nike, Sustainability Report 2018^{^[4]}

Sustainable Sourcing

Excessive Overtime (EOT) is a cross-sector issue which can have an impact on the health and quality of life of workers. It also can result in errors and rework, often making the additional hours unproductive. One of the requirements of the NIKE Code Leadership Standards is to eliminate excessive working hours and ensure that workers at our supplier factories do not work more than 60 hours a week, and have at least one full day off in every seven.

As we work toward our target of 100 percent of factories being bronze-rated, increased monitoring has shown that the facilities where EOT is most likely to occur tend to be factories that are multi-brand, where NIKE represents a small percent of their overall production.

EOT is a persistent challenge across industries in many of the countries where our suppliers operate. The biggest problems are underdeveloped management systems and a failure to enforce local laws on working hours.

While the number of factories with incidents of EOT remains steady, this doesn’t mean that the same factories are always responsible. In fact, a low rate of repeat findings is what makes it so challenging to predict and anticipate where EOT will occur. For example, of all factories with an EOT finding at the end of FY17, only three were repeat offenders. In fact, 11 of the 23 factories with EOT incidents during FY17 resolved the issues and went on to return a bronze rating by the end of the year. (…)

Apple, Supplier Responsibility Report^{^[5]}

Working Hours Falsification

Our Working Hours policy is based on International Labour Organization and Responsible Business Alliance (RBA) standards that limit working hours to no more than 60 hours a week. Also, suppliers can offer overtime only on a voluntary basis and factories must give employees one full day of rest for every six days worked.

We launched a Working Hours Program in 2011 to better manage working hours across our vast supply base. In 2012, the weekly working hours of more than 1 million supplier employees were monitored. Since then, coverage of employees monitored in the program has expanded year over year and, in 2017, the working hours of 1.3 million people were tracked on a weekly basis.

If falsification of employee working hours is discovered, the violation is escalated to the supplier CEO and the supplier is placed on immediate probation. The supplier’s ethics policy and management systems are then thoroughly reviewed to identify the root causes and systemically correct them. The supplier is required to undergo regular audits to ensure the reviewed policy is implemented to prevent future violations. In addition, the supplier must revise all records to reflect an accurate accounting of hours worked by their employees. In 2017, we uncovered 38 cases of falsification of working hours data. In all cases, suppliers were placed on immediate probation. Our suppliers’ compliance for overall working hours for the year was 94 percent.

H&M Group, Sustainability Report^{^[6]}

Improving Purchasing Practices

In 2016, we had the internal launch of our updated strategy on purchasing practices. This helps ensure we consistently engage with our business partners in a fair and transparent way. We recognize that our buying practices affect the ability of our suppliers to provide decent pay and conditions for their workers. This is why we constantly look for ways to improve purchasing practices and prioritise our actions according to feedback from suppliers and other stakeholders.

Highlights of our work include:

We are working to make our measurement of capacity as accurate as possible. This helps improve planning and order placement processes and helps our suppliers use their capacity better. By ensuring capacity is not overbooked, we reduce the risk of excessive overtime and strengthen our long-term partnerships and commitments with specific suppliers. (…)

Fair Labor Association, Annual Report^{^[7]}

Hours of Work

(…) in 2016, FLA assessors found more than three-quarters of all facilities in need of improvement regarding excessive hours of work. To be in full compliance with the FLA Workplace Code of Conduct, facilities must base their production planning on a regular workweek of no more than 48 hours, and total hours per employee must not exceed 60 per week, or legal limits, whichever is lower, with special hours-of-work considerations for young, elderly, or pregnant workers, where required by law. In addition, the FLA code requires all overtime work to be voluntary, although in half of all facilities visited in 2016, assessors found that overtime work was mandatory. More than a third of all facilities also failed to provide one rest day in every seven to their workers, or to provide annual leave in accordance with local law.

Vietnam: 18 assessments, 42,139 workers

Among the 18 factories visited by the FLA in Vietnam, assessors recorded that 13 failed to provide workers with one day of rest in every seven, and half of all facilities required workers to work overtime. (…)

Indonesia: 8 assessments, 22,245 workers

Among the more common widespread findings in Indonesia, FLA assessors found that seven of eight factories failed to compensate workers correctly for their overtime. In some cases, factories calculated overtime using an outdated minimum wage as base pay; in other cases, factories did not provide the legally required 200 percent premium wage rate for overtime conducted on a scheduled rest day. Furthermore, working through a rest day without a compensatory day off within any seven-day period violates FLA hours-of-work standards, which assessors found in two of the factories with overtime pay issues. (…)

Barrientos, Economic and Social Upgrading in Global Production Networks^{^[8]}

Social upgrading is the process of improvement in the rights and entitlements of workers as social actors, which enhances the quality of their employment (…)

Social upgrading can be subdivided into two components: measurable standards and enabling rights. Measurable standards are those aspects of worker well-being that are more easily observable and quantifiable, including type of employment (regular or irregular), wage level, social protection and working hours. They can also include data on sex and unionization, such as the percentage of female supervisors or the percentage of union members in the workforce.

However, measurable standards are often the outcome of complex bargaining processes, framed by the enabling rights of workers. These are less easily quantified, such as freedom of association, the right to collective bargaining, non-discrimination, voice and empowerment. Lack of access to enabling rights undermines the ability of workers – or specific groups of workers, such as women or migrants – to negotiate improvements in their working conditions that can enhance their well-being.

Background (Cambodia)

Peng et al, Labour and Employment Law^{^[9]}

Normal working hours may not exceed eight hours a day or 48 hours in a week. “Night work” under the Cambodian Labour law represents a period of at least eleven consecutive hours that includes the interval between 2200 and 0500 hour. Besides continuous work that is performed by rotating teams who sometimes work during the day and sometimes at night, the work at the enterprise can always include a portion of night work.

Overtime may not exceed 2 hours a day and employers are required to get permission from the Ministry in charge of labour. The limit is at 200 hours in a year. Under special circumstances, this limit may be increased to 300 hours of overtime per year. Businesses in the textiles, garments, sportswear, and fishery production fields automatically operate on this increased basis. Employees who work eight consecutive hours are entitled to 1 hour lunch break according a general practice of private sector employee in Cambodia and it is normally stated in an internal regulation of each enterprise of establishment. The Labour Law prohibits employers from using the same worker for more than six days per week and grant employees to have weekly time off for a minimum of twenty-four consecutive hours.

Asia Floor Wage Alliance et al, Precarious Work in the H&M Global Supply Chain^{^[10]}

Regulations governing overtime require that it be limited to exceptional or urgent work and limited to twelve hours per week—or approximately two hours per day. Regulations also stipulate that overtime should be voluntary and employers should not penalize workers who refuse overtime work. Required overtime rates differ based upon whether overtime is performed during the week, a weekly day off (typically Sunday) or on a public holiday… Almost all garment workers in Cambodia exceed the 48-hour work-week, often without taking paid evening breaks during overtime shifts … 87% of garment workers surveyed engaged in overtime work in order to meet their basic needs.

Instruments (Cambodia)

Labour Law^{^[11]}

Article 137

In all establishments of any nature, whether they provide vocational training, or they are of a charitable nature or liberal profession, the number of hours worked by workers of either sex cannot exceed 8 hours per day, or 48 hours per week.

Article 139

If workers are required to work overtime for exceptional and urgent jobs, the overtime hours shall be paid at a rate of fifty percent higher than normal hours. If the overtime hours are worked at night or during weekly time off, the rate of increase shall be one hundred percent.

Article 139 New

In case of special urgency which requires workers to work overtime other than the usual working hours, the overtime hours shall be paid at an increased rate of 50% (fifty percent). Working overtime at night between 22:00h to 5:00h or weekly time off, shall be additionally paid at an increased rate of 100% (one hundred percent).

Article 139 (as amended)

Night work performed as overtime is paid at 200% of the rate for normal working hours that are not worked at night (a 100% increase in addition to the basic wage).

Article 140

The Ministry in Charge of Labor can issue a Prakas (ministerial order) authorizing an extension of the daily hours in order to make up for hours lost following mass interruptions in the work or a general slowdown from either accidental causes or acts of God, notably bad weather or because of holidays, local festivals, or other local events, in the following cases:

a) Making up for lost hours will not be authorized for more than 30 days per year and will be implemented within fifteen days after the return to work. For agricultural enterprises this period is extended to one month.

b) The extension of the daily working hours cannot exceed one hour.

c) Hours of work cannot exceed ten hours per day.

Article 144

For the purposes of this law, the term “night” represents a period of at least eleven consecutive hours that includes the interval between 2200 and 0500 hour.

Article 144 (as amended)

Night work performed during normal working hours (non-overtime hours) is paid at 130% of the rate for normal working hours that are not worked at night.

Article 147

Weekly time off shall last for a minimum of 24 consecutive hours. All workers shall be given in principle a day off on Sunday.

Article 141

The employer may determine the allocation of working hours within the forty-eight hour working week in order to allow for a break on Saturday afternoon or any other equivalent approach, on the condition that the extra hours do not exceed one hour per day of the regular schedule. However, the employer must not extend the normal working day beyond 9 hours in order to do this.

Article 162

In case the public holiday falls on Sunday, workers will have the following day off.

Prakas on Overtime Work besides Regular Working Hours^{^[12]}

Article 4

Overtime work must be conducted based on volunteer principles. Owners of enterprises shall not force or take any disciplinary action against workers who do not voluntarily accept overtime work.

Prakas on the Allocation of Working Hours besides the Normal Week^{^[13]}

Article 2

The owners of establishments, who wish to allocate working time, need set as follows: (1) the allocation of working hours should not exceed 48 hours per week in 12 consecutive weeks; (2) the working hours should not exceed 10 hours; and (3) the extend of working hours should not exceed one hour per day.

Prakas on Derogation of Prohibition of Children from Performing Night Work^{^[14]}

Article 1

Children aged from 16 to less than 18 years may be employed to perform night works in iron and steel factories, glass factories, paper factories, sugar factories, and gold ore refineries that must continuously operate day and night. The only one purpose of employing children to perform the night works is to apprentice or provide them with professional training.

Article 2

In all cases, the working hours for young workers should not more be more than 8 hours per day. The young workers must be given at least 13 consecutive hours off between shifts.

Article 3

Employers who want to employ children to perform the night works shall ask for a prior approval from the Labour Inspector. After receiving the request, the Labour Inspector shall make decisions by each case based on reasons for employing.

Prakas on Light Work Permitted for Children Aged from 12 to 15^{^[15]}

Article 4

The daily working duration shall not exceed 4 hours for children having school days and not exceed 7 hours for school-free days.

The total actual working duration shall not exceed 12 hours per week for school days and not exceed 35 hours per week for school-free week. (…)

Article 5

Children aged from 12 to 15 shall not be allowed to work from 20:00 to 06:00 am.

Article 6

Children aged from 12 to 15 are entitled to receive a break of at least 14 consecutive hours within a period of 24 hours.

Arbitration Council, Award No. 10/04 – Eternity Apparel^{^[16]}

Additionally, Article 01 of Prakas 80 SALVY dated 10 March 1999 stipulates, “The owner or director of an enterprise/establishment covered by the Labour Law may seek MoSALVY’s permission to extend the working hours beyond the regular working hours.” In cases that an enterprise/establishment requests overtime work, the Labour Inspectorate allows it, saying, “in order to ensure workers’ health, the Labour Inspectorate allows only two hours of overtime work per day.”

Therefore, although the Labor Law fails to explicitly limit the overtime hours in case of an irregular urgent matter, the Arbitration Council finds that the company may not ask its employees to work overtime for the number of hours longer than ten hours per day [including the regular working hours].

Furthermore, Article 04 of Prakas 017 SALVY dated 18 July 2000 states, “workers who volunteer to work overtime as is requested by the employer, are entitled to food allowances of 1,000 riels per day or otherwise to a free meal. Accordingly, for their voluntary and lawful overtime work, workers are entitled to 1,000 riels per day in addition to their wages for the duration of overtime work set forth in Article 139 of the Labor Law.

IFC, Tackling Childcare^{^[17]}

Flexible time and work location: Standard working hours can create difficulties for employees in fulfilling their childcare duties, such as picking up children from school on time. Most of the employees at Hagar Catering work from 6 a.m. to 3 p.m. so they have enough time to attend to children’s needs after work. Sathapana Bank provides flexible working time to employees to take care of their children. A female employee of ACLEDA Bank was living far from the branch and had a long commute. She had no one to care for her child and requested to move to another branch; the bank agreed to her request.

Breastfeeding room and nursing breaks: As stated in Article 185 of the Labor Law, female workers who are nursing their child should be given breaks during working hours. It should be a separate break and not deducted from their normal break time. Companies are meant to provide a nursing room on their premises, especially those with more than 100 female workers who are legally mandated to provide such a facility… Every female worker who breastfeeds her children must be given a one-hour break during the working hours for one year. This is applicable to all workers regardless of the size of the company. The breaks must be longer than the normal breaks provided for in the Labor Law, and should be mutually decided between the employer and women workers. If there is no agreement, the breaks shall be taken at the midpoint of the respective work shift

Collective Bargaining Agreement [re Airport Workers]^{^[18]}

The CBA between airport employees union and Cambodia Airport Management Services provided that “the weekly working duration varies from 40 hours to 48 hours. The daily shift per day is a combination of four consecutive working hours per day and up to 10 consecutive working hours per day but not more than 10 hours per day.

Human Rights Watch, Work Faster or Get Out^{^[19]}

Key Concerns for Women Workers

Factory managers also often failed to make reasonable accommodations for pregnant workers such as more frequent bathroom breaks or lighter work without loss of pay. Many found it difficult to work long hours, including overtime, without adequate breaks to rest or use washrooms. Many interviewees said workers often resigned from factories as their pregnancy progressed because managers harassed them for being “slow” and “unproductive.”

H&M Case Study

Factory 1, a direct supplier to H&M, subcontracts work to many smaller factories. Team leaders in factory 1 allegedly told workers that they should work Sundays, their day off, at an unauthorized subcontractor to help meet production targets and supplement their incomes because factory 1 was not going to provide them with any opportunities for overtime work. In their Sunday and public holiday work at the unauthorized subcontractor, they worked on H&M garments but without overtime pay. By outsourcing the work to a subcontractor, factory 1 was able to bypass labor law provisions governing overtime wages and a compensatory day off for night shifts or Sunday work.

Human Rights Watch also spoke to five workers from a subcontractor factory supplying factory 1. Workers knew their factory was “sharing business” and was producing for H&M because the managers had discussed the brand name and designs with them. When they had rush orders, the workers report that they were not permitted to refuse excessive overtime, including on Sundays and public holidays, and were not paid overtime wage rates.

Keeton-Olsen, The Workers Organizing for a Better Future in Cambodia^{^[20]}

When Srun Sokthy started at Chu Hsing Garment Co. Ltd in 2007, Sokthy’s basic wage was US$35 per month. Through union negotiations and her decades of work, she now earns US$210 per month base pay, with another US$100 in overtime – a combined total that exceeds the national minimum wage for garment workers of US$182 per month.

CCADWU and other local unions represented in the factory banded together to gain further benefits: a US$10 per month stipend for transportation, early leave for pregnant workers, and establishment of a US$20,000 accident and emergency fund that’s paid for by the company. “We got even better benefits than what’s provided by the law. It’s all through the negotiations with the union,” Sokthy says.

Between her job as a garment worker and caring for two young sons, Sokthy’s only respite is her hour-long lunch break, spent in a canteen or at her family’s dorm a few minutes’ walk from the factory on the outskirts of Phnom Penh. However, she says her life has improved since she joined the independent trade union, CCADWU.

Woodbury, Bricked In^{^[21]}

Another component to the occupational environment of brick kiln workers relates to the logistical and social aspects of their work. As all interviewed brick kiln workers are paid according to the amount produced, otherwise known as piece work, the workers experience a high pressure to produce. They work seven days of the week, on average eight hours a day. Occasionally, workers will skip lunch breaks to work longer hours. This pressure to produce is also fueled by the desire to pay off loans owed to the employer. Irregular working schedules were commonplace as the demand for work ebbed and flowed based on different factors. For example, the availability of work relied on the proper functioning of the vacuum extruder brick machines to mold the bricks and trucks for delivering the finished bricks. When either of these items needed repair, work was halted.

Questions

Why do you think excessive working time remains a problem in global supply chains after 30 years of CSR?
What have international brands do to reduce working hours in supplier factories?
Can international brands ever cause excessive working hours in supplier fcatories? How?
What amount of overtime can employer require under the law of Cambodia?
Why is there a prohibition of night work from 22:00 to 05:00 for young workers from 15 to 18 years?
What is the work arrangement for working mothers who has just returned from maternity leave?

Introduction

Freedom of association of workers means the right to form or join a labour union; it includes also the right to collective bargaining to determine working conditions, and the right to strike to apply pressure most effectively for the interests of workers. The ILO considers freedom of association a fundamental right and its unique tripartite structure – workers, employers and states – presupposes independent labour unions. Therefore ILO expects member states to respect freedom of association simply because they are members of the organization, even if they did not ratify the relevant conventions. This right is considered an ‘enabling right’ because all other rights at work (chapter 15-23) can be promoted through organized labour or, on the contrary, those rights can be undermined if the collective voice of workers is repressed. At one extreme, worker unions can create highly adversarial relations that can lead to work stoppages, while at the other end of the spectrum worker unions are a factor of stability in ‘mature’ industrial relation systems. Leading companies seeking sustainable improvements of working conditions in supplier factories increasingly recognize that worker representatives and labour unions are indispensable: they are the best monitors as they are permanently on the factory floor and understand better than any external auditor the actual situation. Therefore leading companies see respect for union activities as part of the solution in a package of measures containing also social audits, support for productivity offered to the supplier’s managers, and responsible purchasing practices (chapter 11). Such responsible companies refrain from intimidation and any anti-union activity while remaining careful to not interfere and actively support such unions; that would risk compromising the autonomy of the worker unions. In countries where unions are restricted by law, companies have promoted alternative ways to ensure worker representation, for example through worker representatives or consultative worker-management committees. Most credible multistakeholder partnerships focused on worker issues cannot exclude labour unions (chapter 5). There has been some tension between NGOs promoting better worker conditions and labour unions claiming to be the sole legitimate representatives of labour interests; this however is a minor conflict, easily solvable through collaboration. Worker unionization has been on the decline globally, even in developed countries with previously higher rates of unionization. A further complicating factor has been the outsourcing of production to low wage countries, which made it impossible for workers in supplier factories to bargain with company representatives that made the key decisions (i.e. the brands in industrialized countries). In other words, the trasnationalisation of business operations through globalization (chapter 3) has not been matched sufficiently by internationalization of industrial relations. To counteract this trend international labour federations have approached transnational companies to conclude new agreements, the so-called ‘global framework agreements’. These are meant to guarantee freedom of association throughout the supply chain and get the transnational company to persuade suppliers to work in good faith with local labour unions.

Cambodia has ratified all (eight) core international labour conventions as identified by the ILO, including the Convention no. 87 on freedom of association and Convention 98 on collective bargaining. Both conventions and national laws namely Cambodian Labour Law and Law on Trade Union recognize the right of all workers to pursue their rights and interests regarding employment collectively. Freedom of association applies to workers but also to employers.

Main Aspects

Freedom of association
Collective bargaining
Right to strike
Restrictions on the right to strike
Strikes in essential services
Labour market
Coverage of workers
Trade unions and civil liberties
Political strikes
Sympathy strikes and internationalization of production
Rights of enterprises (conflict with trade union rights)
Export processing zones
Use of force (against striking workers)
Anti-union discrimination
Collective agreements (with non-union workers)
Workers’ representatives (relation to freedom of association)
Alternative channels of worker representation (where law prohibits freedom of association)
Employment relationship (as foundation for collective bargaining)

Background

ITUC, The UNGPs and the Right to Form or Join Trade Unions^{^[1]}

Active violations by employers

Interrogation or surveillance of workers concerning their support for trade unions;
Surveillance of trade union activities;
Intimidation of workers by threatening the loss of their livelihood;
Intimidation of vulnerable workers such as migrant workers;
Physical intimidation of trade union supporters;
Screening for trade union supporters during recruitment;
Creating, circulating or using “blacklists” of trade union supporters
Dismissal of trade union supporters;
Discrimination against trade union supporters through demotions, less favourable assignments, less favourable conditions of work, reduction of wages, benefits, opportunities for training, transfers, and relocation;
Non-extension of employment contracts to trade union supporters on fixed term and temporary employment;
Interference in the decision process by which workers choose whether to be represented by a trade union or by which they choose among different trade union organisations;
Anti-union campaigns and “union avoidance” activities, including by engaging professional consultants;
Actively pursuing legal and administrative delays in the process by which trade unions obtain recognition;
Isolation of workers from trade union organisers/ representatives, including where workers live on premises owned by the company or where work is performed in places where access is restricted such as private business complexes or export processing zones (EPZs); (…)

In addition to the above list there is a range of activities that involve the employer establishing or promoting alternatives to trade unions.

Sometimes employers create joint labour management committees, employee councils or other structures that require worker representatives. The danger is that these structures and the “worker representatives” serving on them become substitutes for independent and representative trade union structures. They can also become obstacles for workers seeking to form or join their own organisations.

Sometimes these practices are not intended to discourage workers from forming or joining trade unions. They can also be part of an effort to show that freedom of association is respected in countries where the government does not protect this right. (…)

Where there is reason to believe that the business enterprise is misusing worker representative structures to avoid or hinder trade unions, the business enterprise should make a clear written and verbal statement to workers that they have the right to join the trade union, and that the worker representative structure in question does not replace this.

Avoiding the legal obligations of the employer

Despite a range of different legal systems, the employment relationship is a universal concept which recognises that workers, in a position of subordination and dependency to the person or enterprises for whom they perform work, are in an inherently unequal power relationship. For this reason a distinct form of law (employment law or labour law) based on the recognition of an employment relationship, seeks to balance this unequal power by creating a range of rights and obligations intended to protect the worker while recognising the mutual obligations of both employers and employees. The employment relationship remains one of the most important means by which society protects its interest in fairness and in the stability of economic relationships as well as in the respect for human rights at work. (…)

An increasing amount of work is now being performed outside of a direct, ongoing employment relationship that protects these rights. This work is, instead, being performed in triangular relationships where an intermediary, such as an agency or labour broker, supplies workers, recognised as employees of the intermediary, to a user enterprise where they work alongside employees of the “user enterprise”. In these situations, the introduction of multiple employers at the same workplace can effectively deny genuine collective bargaining. Changes in business operations can also be used by business enterprises to end collective bargaining structures and relationships. Sub-contracting arrangements are used to increase the distance between workers and the legal entity which controls their wages and working conditions so that meaningful collective bargaining is not possible.

Sometimes employers seek to evade the obligations that the law places on employers by disguising the existence of an employment relationship such as by treating the worker as being self-employed. Temporary work, including casual work and seasonal work, as well as work performed under fixed term or short term contracts, is often based on relationships that make it practically impossible for the workers concerned to exercise their rights to join or form trade unions and to bargain collectively.

The duty to bargain

Business enterprises cannot respect the right to collective bargaining by merely refraining from doing harm. Respecting the rights of workers to bargain collectively means accepting that there is a duty to bargain where workers want to exercise this right. Although collective bargaining must be voluntary if it is to be genuine, this does not mean that business enterprises can refuse to collectively bargain because they “voluntarily” chose not to do so. It is only necessary that the outcome be voluntarily agreed by the parties. Legally mandated bargaining by independent parties is not a violation of a human right.

The right to collective bargaining applies to workers not enterprises. If a business enterprise is to respect the right of workers to bargain collectively, then it must accept that it has a duty to bargain. This is the essence of what it means to bargain in good faith. Accepting the duty to bargain means that the business enterprise must accept reasonable times and venue for bargaining, participate in meetings, give serious consideration and a response to proposals, and provide reasons for its responses. Moreover, the business enterprises should make every reasonable attempt to reach agreement.

Instruments

The Universal Declaration of Human Rights^{^[2]}

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

Article 23

4. Everyone has the right to form and to join trade unions for the protection of his interests.

International Covenant on Economic, Social and Cultural Rights ^{^[3]}

Article 8 [Right to form and join trade unions without restriction]

1. The States Parties to the present Covenant undertake to ensure:

(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. (…)

International Covenant on Civil and Political Rights^{^[4]}

Article 22

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. (…)

ILO, Freedom of Association and Protection of the Right to Organise Convention^{^[5]}

Preamble

Considering that the Preamble to the Constitution of the International Labour Organisation declares “recognition of the principle of freedom of association” to be a means of improving conditions of labour and of establishing peace;

Considering that the Declaration of Philadelphia reaffirms that “freedom of expression and of association are essential to sustained progress”;

Article 2

Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

Article 3

1. Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

Article 10

In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.

ILO, Right to Organise and Collective Bargaining Convention^{^[6]}

Article 1

1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.

2. Such protection shall apply more particularly in respect of acts calculated to–

(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;

(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.

Article 4

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

ILO, Declaration on Fundamental Principles and Rights at Work^{^[7]}

The International Labour Conference (…)

2. Declares that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely:

(a) Freedom of association and the effective recognition of the right to collective bargaining; (…)

ILO, Declaration on Social Justice for a Fair Globalization^{^[8]}

I. (…) the four equally important strategic objectives of the ILO, through which the Decent Work Agenda is expressed (…):

(iv) respecting, promoting and realizing the fundamental principles and rights at work, which are of particular significance, as both rights and enabling conditions that are necessary for the full realization of all of the strategic objectives, noting:

– that freedom of association and the effective recognition of the right to collective bargaining are particularly important to enable the attainment of the four strategic objectives; and

– that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage and that labour standards should not be used for protectionist trade purposes.

UN Global Compact, Ten Principles^{^[9]}

Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining;

ILO, General Survey on the Fundamental Conventions^{^[10]}

51. Freedom of association and collective bargaining, which are now set out in most of the constitutions of member States, are of vital importance for the social partners, as they enable them to establish rules in the field of working conditions, including wages, to pursue more general claims and to reconcile their respective interests with a view to ensuring lasting economic and social development. In the Committee’s opinion, strong and independent workers‟ organizations are essential to compensate the legal and economic inferiority of workers. Furthermore, employers’ organizations are particularly important for the protection of interests of small enterprises. Workers’ and employers’ organizations are major tools for labour market governance and for the development of industrial relations systems that are vectors of stability, progress and economic and social prosperity. They also make it possible to ensure the effective application of labour legislation through the denunciation of violations of the law wherever necessary. In addition, these organizations participate in consultation machinery for the definition of economic and social policy and the formulation of draft labour legislation. It is therefore essential to ensure their independence in relation to the public authorities and political parties, as recalled by the resolution adopted by the Conference in 1952 concerning the independence of the trade union movement.

[Committee of Experts and Committee on Freedom of Association]

52. Conventions Nos 87 and 98 are among those which have received the most ratifications. As additional proof of their importance, all member States, even if they have not ratified the Conventions in question have, on the one hand, an obligation arising from the very fact of membership in the ILO to respect, to promote and to realize the principles concerning fundamental rights which are the subject of these Conventions and, on the other hand, can be called upon to provide explanations to the Committee on Freedom of Association which, as a tripartite body of the Governing Body, has had the mandate since 1951 to examine complaints alleging violations of the principles of freedom of association presented by workers‟ or employers‟ organizations against a member State. The Committee of Experts attaches particular importance to the decisions of the Committee on Freedom of Association. As a tripartite body, the legitimacy of the recommendations and principles of the Committee on Freedom of Association is accentuated by the consensus that prevails in its work and the expertise in industrial relations provided by the Government, Employer and Worker members who sit on the Committee in their individual capacity. (…)

Main difficulties concerning the scope of application

58. The principal difficulties relating to the scope of application of Convention No. 87 concern the interpretation given by the legislation in certain countries to the exceptions authorized by Article 9, paragraph 1, of the Convention, namely the armed forces and the police and, more generally, the application of the Convention to public servants and to certain other categories of workers. The application of the Convention to fire service personnel, prison staff, magistrates and teachers has also been the subject of special attention by the Committee. It is the same for the application of the Convention to workers in the informal economy, migrant workers, domestic workers, workers in export processing zones, as well as workers engaged under a disguised labour relationship (in the form of service contracts, for example). The Committee has also noted that a number of the sectors and groups of workers excluded from the right to organize and related rights are often predominantly female. The Committee therefore considers that it is important to examine the gender implications of the application of the Conventions to ensure that there is no direct or indirect discrimination against women. In the view of the Committee, all of these categories of workers should benefit from the rights and guarantees set forth in the Convention.

Trade union rights and civil liberties

59. (…) the fundamental rights that are necessary for the exercise of freedom of association, with particular reference to: (i) the right to freedom and security of person and freedom from arbitrary arrest and detention; (ii) freedom of opinion and expression, and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (iii) freedom of assembly; (iv) the right to a fair trial by an independent and impartial tribunal; and (v) the right to protection of the property of trade union organizations. The ILO supervisory bodies have since unceasingly stressed the interdependence between civil liberties and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations.

Recognition of the most representative trade unions

96. In an attempt to establish a proper balance between imposed trade union unity, which is incompatible with the Convention, and the excessive multiplication of trade unions, the legislation in some countries establishes the concept of the “most representative trade unions”, which are granted a variety of rights and advantages. There are different methods to determine the most representative trade unions and the manner in which they jointly or separately engage in collective bargaining. In the view of the Committee, this concept is not in itself contrary to the principle of freedom of association, but must be accompanied by certain conditions, namely: (i) the determination of the most representative organizations must be based on objective, pre-established and precise criteria, so as to avoid any possibility of bias or abuse; and (ii) the distinction should be limited to the recognition of certain preferential rights (for example, for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations).

The right to strike

117. Strikes are essential means available to workers and their organizations to protect their interests, but there is a variety of opinions in relation to the right to strike. While it is true that strike action is a basic right, it is not an end in itself, but the last resort for workers‟ organizations, as its consequences are serious, not only for employers, but also for workers, their families and organizations and in some circumstances for third parties. In the absence of an express provision in Convention No. 87, it was mainly on the basis of Article 3 of the Convention, which sets out the right of workers‟ organizations to organize their activities and to formulate their programmes, and

Article 10, under which the objective of these organizations is to further and defend the interests of workers, that a number of principles relating to the right to strike were progressively developed (…). This position of the supervisory bodies in favour of the recognition and protection of the right to strike has, however, been subject to a number of criticisms from the Employers‟ group in the Committee on the Application of Standards of the International Labour Conference.

Employers’ group

The Employers‟ group in the Conference Committee considers that neither the preparatory work for Convention No. 87, nor an interpretation based on the Vienna Convention on the Law of Treaties, offers a basis for developing, starting from the Convention, principles regulating in detail the right to strike.

According to the Employer members, the right to strike has no legal basis in the freedom of association Conventions. In their view, Convention No. 87 at most contains a general right to strike, which nonetheless cannot be regulated in detail under the Convention. They consider that when the Committee of Experts expresses its views in detail on strike policies, especially on essential services, it applies a “one-size-fits-all” approach that fails to recognize differences in economic or industrial development and current economic circumstances. They add that the approach of the Committee of Experts undermines tripartism and ask it to reconsider its interpretation of the matter. In 2011, the Employer members reiterated their position, considering that the observations of the Committee of Experts on the right to strike and essential services are not in conformity with the text, the preparatory work and the history of the negotiation of Convention No. 87. (…)

Workers’ group

The Worker members of the Conference Committee (…) stated that the right to strike is an indispensable corollary of the right to organize protected by Convention No. 87 and by the principles enunciated in the ILO Constitution. In their view, without the right to strike, freedom of association would be deprived of its substance. They added that strike objectives could not be limited only to the conflicts linked to the workplace or the enterprise, particularly given the phenomena of enterprise fragmentation and internationalization. This was the logical consequence of the fact that trade union activities should not be limited to strictly occupational questions. This was the reason why sympathy strikes should be possible, as well as strikes at the sectoral level, the

national and the international level. Finally, they considered that by considerably limiting the scope of action of trade unions, by legal or administrative restrictions, governments and employers might find themselves increasingly faced with spontaneous actions. (…)

Finally, they indicated that the Committee of Experts had developed its views on this question in a very cautious, gradual and balanced manner, and that it would be preferable that the general consensus established in this regard was not shaken up.

119-122. (…) the Committee of Experts has never considered the right to strike to be an absolute and unlimited right, and that it has sought to establish limits to the right to strike in order to be able to determine any cases of abuse and the sanctions that may be imposed. (…) elements concerning the peaceful exercise of the right to strike, its objectives and the conditions for its legitimate exercise, which may be summarized as follows: (i) the right to strike is a right which must be enjoyed by workers‟ organizations (trade unions, federations and confederations); (ii) as an essential means of defending the interests of workers through their organizations, only limited categories of workers may be denied this right and only limited restrictions may be imposed by law on its exercise; (iii) the objectives of strikes must be to further and defend the economic and social

interests of workers and; (iv) the legitimate exercise of the right to strike may not result in sanctions of any sort, which would be tantamount to acts of anti-union discrimination. Accordingly, subject to the restrictions authorized, a general prohibition of strikes is incompatible with the Convention, although the supervisory bodies accept the prohibition of wildcat strikes. Furthermore, strikes are often called by federations and confederations which, in the view of the Committee, should be recognized as having the right to strike. Consequently, legislation which denies them this right is incompatible with the Convention.

[“political strikes”]

124. In the legislation of several countries, “political strikes” are explicitly or tacitly deemed unlawful. 268 The Committee considers that strikes relating to the Government’s economic and social policies, including general strikes, are legitimate and therefore should not be regarded as purely political strikes, which are not covered by the principles of the Convention. In its view, trade unions and employers’ organizations responsible for defending socio-economic and occupational interests should be able to use, respectively, strike action or protest action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members. Moreover, noting that a democratic system is fundamental for the free exercise of trade union rights, the Committee considers that, in a situation in which they deem that they do not enjoy the fundamental liberties necessary to fulfil their mission, trade unions and employers’ organizations would be justified in calling for the recognition and exercise of these liberties and that such peaceful claims should be considered as lying within the framework of legitimate trade union activities, including in cases when such organizations have recourse to strikes.

[“sympathy” strikes]

125. With regard to so-called “sympathy” strikes, the Committee considers that a general prohibition of this form of strike action could lead to abuse, particularly in the context of globalization characterized by increasing interdependence and the internationalization of production, and that workers should be able to take such action, provided that the initial strike they are supporting is itself lawful. (…)

128. In this context, the Committee has noted with concern the potential impact of the recent case law of the Court of Justice of the European Communities (CJEC) concerning the exercise of the right to strike, and particularly the fact that in recent rulings the Court has found that the right to strike could be subject to restrictions where its effects may disproportionately impede an employer’s freedom of establishment or freedom to provide services. (…) the European Trade Union Confederation (ETUC) drew the Committee’s attention to its particular concerns with respect to the impact of recent decisions of the Court of Justice of the European Union (Viking, Laval, Ruffert and Luxembourg) on freedom of association rights and the effective recognition of collective bargaining. (…)

143. EPZs. A number of countries establish a special system of industrial relations in EPZs which specifically or indirectly prohibits strikes in such zones. 332 In the view of the Committee, such prohibitions are incompatible with the principles of non-discrimination which must prevail in the implementation of the Convention. (…)

167. (…) Collective bargaining is one of the principal and most useful institutions developed since the end of the nineteenth century. As a powerful instrument of dialogue between workers‟ and employers‟ organizations, collective bargaining contributes to the establishment of just and equitable working conditions and other benefits, thereby contributing to social peace. It also provides a basis for preventing labour disputes and determining procedures for the settlement of certain specific problems, particularly in the context of adjustment processes in the event of economic crisis or cases of force majeure, as well as worker mobility programmes. Collective bargaining is therefore an effective instrument which facilitates adaptation to economic, socio-political and technological change. The principal elements of Convention No. 98, with which most national law and practice is now aligned, are the following: (i) the principle of the independence and autonomy of the parties and of free and voluntary bargaining; (ii) the effort made, in the context of the various bargaining systems, to reduce to a minimum any possible interference by the public authorities in bipartite negotiations; and (iii) the primacy accorded to employers and their organizations and to trade unions as the parties to negotiations.

[burden of proof and anti-union discrimination]

192. One of the main difficulties in relation to allegations of discrimination in general, and of anti-union discrimination in particular, relates to the burden of proof. In practice, placing on workers the burden of proving that the act in question occurred as a result of anti-union discrimination may constitute an insurmountable obstacle to establishing liability and ensuring an appropriate remedy. In response, certain States have decided to strengthen the protection of workers by requiring the employer, under certain conditions, to prove that the act of alleged anti-union discrimination was caused by factors other than trade union activity or membership. (…)

199. (…) two [restrictive] trends to which the Committee draws attention. The first is the tendency for the legislature in several countries to give precedence to individual rights over collective rights in employment matters. This tendency runs counter to ILO principles, and particularly the Collective Agreements Recommendation, 1951 (No. 91), which recalls the principle of the binding effects of collective agreements and their primacy over individual contracts of employment (with the exception of provisions in the latter which are more favourable to the workers covered by the collective agreement). Secondly, in certain countries, direct agreements between employers and groups of non-unionized workers are much more numerous than the collective agreements concluded with the representative organizations of workers. This shows that the obligation to promote collective bargaining within the meaning of Article 4 is not yet fully respected.

Negotiation in good faith

208. The principle of negotiation in good faith, which is derived from Article 4 of the Convention, takes the form, in practice, of various obligations on the parties involved, namely: (i) recognizing representative organizations; (ii) endeavouring to reach agreement; (iii) engaging in real and constructive negotiations; (iv) avoiding unjustified delays in negotiation; and (v) mutually respecting the commitments made and the results achieved through bargaining. (…)

Content of collective bargaining

215. Conventions Nos 98, 151 and 154 and Recommendation No. 91 focus the content of collective bargaining on terms and conditions of work and employment, and on the regulation of relations between employers and workers and their respective organizations. The concept of “conditions of work” covers not only traditional working conditions (the working day, additional hours, rest periods, wages, etc.), but also subjects that the parties decide freely to address, including those that are normally included in the field of terms and conditions of employment in the strict sense (promotion, transfer, dismissal without notice, etc.). In practice, although conditions of work remain essential issues addressed by most collective agreements, the range of the subjects addressed has progressively broadened to reflect the evolution of industrial relations. Agreements

increasingly frequently cover issues related, for example, to recruitment levels, safety and health, restructuring processes, training, discrimination and supplementary social security benefits. Agreements are also sometimes used to institutionalize procedures on dispute settlement machinery, and to prevent strikes. Finally, they may also be used, where appropriate, to obtain arrangements for the benefit of workers, particularly with regard to their welfare (enterprise doctors, works stores, loan agreements, housing assistance, etc.). Whatever the content, the Committee considers that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are generally incompatible with the Convention; and that tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties.

[Collective agreements with non-unionized workers]

240. In practice, the Committee has recalled on several occasions that, where there exists a representative trade union and it is active within the enterprise or branch of activity concerned, the authorization for other workers‟ representatives to bargain collectively not only weakens the position of the trade union, but also undermines ILO rights and principles on collective bargaining. Despite this principle, several States continue to promote or allow non-unionized workers’ representatives to conclude collective agreements, even where there exists in the sector or enterprise concerned a trade union that is more able to guarantee the independence of its positions in relation to the employer. Recalling the principle that the use of machinery for voluntary negotiation has to be encouraged, the Committee considers that if, in the course of collective bargaining with the trade union, the enterprise offers better working conditions to nonunionized workers, there would be a serious risk of undermining the negotiating capacity of the trade union and giving rise to discriminatory situations in favour of the nonunionized staff; furthermore, it might encourage unionized workers to withdraw from the union. Emphasizing that collective bargaining is a fundamental right recognized in many national constitutions, and therefore accorded a high legal ranking, the Committee calls on governments to take measures to prevent direct agreements with non-unionized workers being used for anti-union purposes (…),

Machinery and procedures to facilitate and promote collective bargaining

241. The Collective Bargaining Recommendation, 1981 (No. 163), proposes a series of means to facilitate and promote collective bargaining, in accordance with Article 4 of Convention No. 98. These include measures with a view to: (i) facilitating the establishment and growth, on a voluntary basis, of free, independent and representative employers‟ and workers‟ organizations; (ii) establishing procedures for the recognition of the most representative organizations; (iii) ensuring that collective bargaining is possible at any level whatsoever; (iv) enabling negotiators to obtain appropriate training and the parties to have access to the information required for meaningful negotiations (such as information on the economic situation of the enterprise, on condition, however, that the objectivity and confidentiality of such financial data is subject to reasonable guarantees); and (v) taking measures adapted to national conditions so that procedures for the settlement of labour disputes assist the parties to find a solution to the dispute themselves. Moreover, the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), encourages the development of voluntary conciliation and arbitration machinery, one of the principal characteristics of which should be the joint nature of the machinery, voluntary recourse to the procedures, which should be expeditious and free of charge; and calls on the parties to abstain from strikes and lockouts while voluntary conciliation and arbitration procedures are in progress.

Extension of collective agreements

245. The Collective Agreements Recommendation, 1951 (No. 91), indicates that, where appropriate, having regard to established collective bargaining practice, “measures, to be determined by national laws or regulations and suited to the conditions of each country, should be taken to extend the application of all or certain stipulations of a collective agreement to all the employers and workers included within the industrial and territorial scope of the agreement.” 595 National laws or regulations may make the extension of the collective agreement subject to the following, among other, conditions: (i) that the collective agreement already covers a number of the employers and workers concerned which is, in the opinion of the competent authority, sufficiently representative; (ii) that, as a general rule, the request for extension of the agreement shall be made by one or more organizations of workers or employers who are parties to the agreement; and (iii) that the employers and workers to whom the agreement would be made applicable should be given an opportunity to submit their observations. 596 The Committee considers that the extension of collective agreements is not contrary to the principle of voluntary collective bargaining and is not in violation of Convention No. 98.

[Compulsory arbitration]

247. Compulsory arbitration in the case that the parties have not reached agreement is generally contrary to the principles of collective bargaining. In the Committee’s opinion, compulsory arbitration is only acceptable in certain specific circumstances, namely: (i) in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis. However, arbitration accepted by both parties (voluntary) is always legitimate. In all cases, the Committee considers that, before imposing arbitration, it is highly advisable that the parties be given every opportunity to bargain collectively, during a sufficient period, with the help of independent mediation

Inditex-IndustriAll, Global Framework Agreement^{^[11]}

The main purpose of the Agreement remains ensuring respect of Human Rights within the labor and social environment, by promoting decent work throughout Inditex’s Supply Chain. (…)

The terms and conditions of the Agreement shall apply throughout the Inditex supply chain including in workplaces not represented by IndustriALL Global Union affiliated trade unions . IndustriALL Global Union and Inditex undertake to inform other trade unions in these latter places of the terms and conditions hereunder agreed.

IndustriALL Global Union will work with Inditex to help secure full compliance with the following standards (…):

No Forced Labour.
No Child Labour.
No Discrimination.
Respect for Freedom of Association and Collective Bargaining.
No Harsh or Inhumane Treatment.
Safe and Hygienic Working Conditions.
Wages are paid.
Working Hours are Not Excessive.
Regular Employment
Traceability of production
Health and Safety of products
Environmental Awareness
Confidentiality of information
Code implementation
1. Transparency
1. Reference to national legislation, Conventions and Agreements
1. Verification of compliance
1. Ethics Committee and Whistleblowing Channel

Inditex and IndustriALL Global Union agree to an annual review of the application of the Agreement and accordingly will create a committee comprised of three representatives from Inditex and three representatives from IndustriALL Global Union to undertake that annual review.

To facilitate the on-going review of Freedom of Association and the Right to Bargain Collectively and the annual review of the Agreement, Inditex undertakes to provide reasonable information on its supply chain to the IndustriALL Global Union.

Inditex and IndustriALL Global Union undertake to inform each other of any breach of the Agreement, as soon as the breach is discovered, to enable the earliest possible implementation of a remediation action plan.

Annex 1 – Code Of Conduct For Manufacturers And Suppliers Inditex Group

4. Respect for freedom of association and collective bargaining

Manufacturers and suppliers shall ensure that their employees, without distinction, have the right of association, union membership and collective bargaining. No retaliation may arise from the exercise of such right and no remuneration or payment whatsoever may be offered to the employees in order to hinder the exercise of such a right. Likewise, they shall adopt an open and collaborative attitude towards the activities of Trade Unions.

Workers’ representatives shall be protected from any type of discrimination and shall be free to carry out their representative functions in their workplace.

Where the rights to Freedom of Association and Collective Bargaining are restricted under law, the appropriate channels to ensure a reasonable and independent exercise of such rights must be designed.

10. Traceability of production

Manufacturers and suppliers shall not assign any work to third parties without the prior written authorization of Inditex. Those who outsource any work shall be responsible for the enforcement of the Code by these third parties and their employees.

Likewise, manufacturers and suppliers shall apply the principles of this Code to any homeworker involved in their supply chain, and shall give transparency to the locations and working conditions of said homeworkers.

14. Code implementation

14.3 Verification of compliance

Manufacturers and suppliers shall authorize Inditex and/or any third parties the former might appoint, to monitor the appropriate enforcement of the Code. For these purposes, they shall provide the required means and the appropriate access to the facilities and documentation required to ensure this verification.

14.4 Committee of Ethics and Whistleblowing Channel

This Code is aligned with the principles and values that are included in the Inditex Code of Conduct and Responsible Practices, which regulates a Committee of Ethics and Whistleblowing Channel to ensure its enforcement.

In this sense, and in order to ensure the enforcement of the Code of Conduct for Manufacturers and Suppliers, the Committee of Ethics can act at its own initiative or following a formal complaint made in good faith by a manufacturer, supplier or other interested third party that might have any direct relationship or commercial or professional interest with Inditex.

IndustriALL, Agreement with H&M Proves Instrumental in Resolving Conflicts^{^[12]}

A global framework agreement (GFA) signed between IndustriALL Global Union and Swedish clothing company H&M has been an accelerator in reinstating sacked workers at garment factories in both Myanmar and Pakistan just a couple of months after it came into force.

The GFA, which was signed in November 2015, serves to protect the labour rights of 1.6 million workers in H&M’s global supply chain.

In Myanmar, the GFA was key to getting trade unionists back to work, as well as achieving trade union recognition at the Jiale Fashion factory in Yangon.

Eight union leaders were sacked at the garment factory in October 2015, leading to a month-long strike. The Confederation of Trade Unions in Myanmar (CTUM) reported the dispute to IndustriALL’s South East Asia regional office, which invoked the GFA with the H&M Sustainability offices in Yangon and Sweden, especially as the case raised issues on freedom of association.

H&M Sustainability then pushed for dialogue through both their local office in Yangon and Jiale Fashion’s owners in Hong Kong. H&M Sustainability, IndustriALL and CTUM were involved throughout the process until an agreement was reached between workers and the factory.

As well as reinstating the dismissed workers, the factory agreed to recognize the factory trade union, the Jiale Basic Labour Organization, which is affiliated to CTUM and IndustriALL through the Industrial Workers Federation of Myanmar (IWFM).

Khaing Zar, assistant general secretary of IWFM said: “Building trust between workers and management is the key to industrial peace. The formation of the Workers’ Coordinating Committee at the factory will improve workplace cooperation and, of course, the biggest achievement is the recognition of the trade union at Jiale Fashion.”

IndustriALL textile director Christina Hajagos-Clausen said: “The GFA is founded upon a shared belief that well-structured industrial relations are essential to a stable and sustainable production model. This type of collaboration is crucial for lasting improvements for the garment workers in H&M’s supply chain.”

In November 2015, 88 workers at the Denim Clothing Company (DCC) factory in Pakistan were sacked for demanding their rights. The dispute began when five worker representatives were sacked on the spot for asking to discuss issues such as a lack of social security, insurance, and salaries below the minimum wage that often were paid late. When 83 of their colleagues stood up for them, they also lost their jobs.

As part of the newly signed GFA with H&M, both parties worked to bring the 88 workers back to work through joint negotiations with IndustriALL Pakistani affiliate NTUF and the local management at Denim Clothing. All workers were reinstated with full pay from 26 November, the date they had been fired. (…)

Indonesia, Freedom of Association Protocol^{^[13]}

Article 1

a. The parties are those who sign this protocol. They comprise of Unions, Brands and Suppliers.

b. Workers are all those who carry out waged work.

c. Suppliers are companies that provide goods or services to the brands.

d. Brands are legal persons or entities that are registered as owning trademark rights.

e. Unions are organisations formed from, by and for workers, whether within or outside of companies, with the aim to promote, defend and protect workers’ rights and interests as well as to increase the welfare of workers and their families. (…)

Article 4

Suppliers (…) are obliged to implement freedom of association including, inter alia:

1. Give workers freedom to form unions within the company premises.

2. Acknowledge the existence of the various unions in the company without discrimination.

3. Not interfere in any way with unions carrying out their organisational activities provided that these activities do not contravene protocol determinations, the CBA or other applicable laws and regulations.

4. Release union representatives or members from their work duties for the purpose of undertaking union organisational activities, with continued provision of all rights to which the particular worker is normally entitled. (…)

10. There must be no intimidation in any form whatsoever, including demotions, transfers, wage reductions, criminalisation, provision of a work load outside of the worker’s capabilities, suspension or sacking of members and/or union organisers, perpetrated against union members or representatives undertaking organisational activities throughout the period of their leadership.

Article 5

(1) Suppliers shall facilitate the implementation of union activities within the company in such ways as:

a. Unions may make use of company meeting space if requested at least 3 days in advance provided that such a meeting space is available. For urgent needs, companies are obliged to provide a meeting room as long as such a room is available (and not in current use).

b. Unions may make use of communication facilities such as telephones, fax and internet within the company as long as such facilities are available and in accordance with regulations and procedures as applies to other users within the company.

c. Unions may make use of company vehicles if requested 3 days in advance provided that such a vehicle is available. For urgent needs, the company loan out a vehicle if such a vehicle is available on that day and not in current use. (…)

g. The company must assist in deducting union fees from the wages of union members every month and within a period of time jointly agreed upon or at the latest within 10 work days the amount must be given to the relevant union leader depending on the administration processes within the company.

(2)

a. Suppliers are obliged to provide a space or room that is appropriate, hygienic and strategic within the company premises to be used as a union secretariat together with furnishings to support the union’s activities, including two sets of desks and desk chairs, filing cabinets or cupboards and a table and chairs for guests.

b. In the case that the company is limited in its ability to provide for the above facilities and fittings, then the company is obligated to make a refurbishment plan with the union’s agreement within a timeframe of 6 months.

(3) Suppliers have the obligation to support and facilitate union activities during working hours including:

a. Routine scheduled meetings, such as meetings between union representatives as well as between union representatives and members.

b. Ad hoc meetings as may be required, both between union representatives and between union representatives and members, providing three days’ prior notice to the company.

c. Union educational activities, both scheduled and unscheduled, providing two days’ prior notice to the company.

Article 6

(1) The parties have the obligation to produce a Collective Bargaining Agreement (CBA) within a time frame of not more than six months after the formation of a union in accordance with applicable legal requirements.

(2) In negotiating a CBA, Unions and Companies shall adhere to the following:

a. Companies shall not reject an invitation from unions to negotiate to produce or renew an agreement.

b. Companies shall not undertake any form of intimidation against the union delegates in the CBA negotiating team.

c. During CBA negotiations, union delegates in the negotiation team are to be relieved of their daily work load in accordance with a jointly agreed upon schedule.

d. During CBA negotiations, union delegates in the negotiating team are to be given freedom to carry out surveys so as to gather data to support the negotiations.

e. The negotiating team must be given access to information concerning company conditions so as to obtain supportive data, as far as that access does not breach confidentiality provisions as provided by law or by contract with a third party.

Article 8

(1)To supervise implementation of this FOA Protocol, the parties are obligated to form an FOA Protocol Supervision and Dispute Settlement Committee no later than 90 working days after the signing of this Protocol.

(2)FOA Protocol Supervision and Dispute Settlement Committees will be established at company and national levels. (…)

ACT (Action, Collaboration, Transformation)^{^[14]}

Background

ACT members have agreed the following the principles:

A joint approach is needed where all participants in global supply chains assume their respective responsibilities in achieving freedom of association, collective bargaining and living wages.
Agreement on a living wage should be reached through collective bargaining between employers and workers and their representatives, at industry level.
Workers must be free and able to exercise their right to organize and bargain collectively in accordance with ILO Conventions.

Memorandum of understanding between ACT corporate signatories and INDUSTRIALL Global Union on establishing within global supply chains freedom of association, collective bargaining and living wages

Goals and Purpose

There are two sustainable mechanisms that we consider have the capacity to deliver freedom of association, collective bargaining and living wages to any scale, while setting a level playing field:

• Industrywide collective agreements

• National minimum wage fixing enforcement mechanisms

Framework for Action

We recognise that business security and commitment to production countries and suppliers are a key enabler for paying living wages in conjunction with all other pillars of our joint approach. (…)

9) We will provide capacity building to both groups in support of this process, including training of managers and workers on freedom of association and collective bargaining.

Negotiating solutions^[15]

Bangladesh Accord, Transition to the RMG Sustainability Council^{^[1]}

The Accord on Fire and Building Safety in Bangladesh (Bangladesh Accord) is an independent, legally binding agreement between brands and trade unions to work towards a safe and healthy garment and textile industry in Bangladesh. The Accord covers factories producing Ready-Made Garments (RMG) and at the option of signatory companies, home textiles and fabric & knit accessories.

The Rana Plaza factory building collapsed on 24 April 2013, killing 1,133 people and critically injuring thousands more; in the years prior to the Rana Plaza building collapse, numerous fatal factory fires occurred in Bangladesh. The Accord was created to enable a working environment in which no worker needs to fear fires, building collapses, or other accidents that could be prevented with reasonable health and safety measures.^[2]

The functions of the local office of the Accord on Fire and Building Safety in Bangladesh have transitioned to the RMG Sustainability Council (RSC). RSC is a newly established not-for-profit company in Bangladesh created and governed by global apparel companies, trade unions, and manufacturers. The RSC was officially registered in Bangladesh on May 20, 2020 to be a permanent safety monitoring and compliance body in the RMG sector in Bangladesh.

The Accord signatory companies and unions and the Bangladesh Garment Manufacturers and Exporters Association (BGMEA) agreed to establish the RSC through a Memorandum of Understanding (MoU) signed on May 8, 2019. To ensure that the safety progress achieved by the Accord since 2013 is sustained and potentially expanded, the MoU prescribes that the RSC inherits all operations, staff and infrastructure of the local Bangladesh Accord office.

The RSC will continue with factory inspections, remediation monitoring, safety training, and a safety & health complaints mechanism at the RMG factories supplying to Accord signatory companies. These programs will be implemented in accordance with the protocols and procedures developed by the Accord, which have also been inherited by the RSC. (…)

The independence of the existing safety & health complaints mechanism that is available to workers in factories supplying to Accord signatory companies shall also be safeguarded under the RSC. (…)

The Accord company and union signatories are confident that the global companies, trade unions, and manufacturers governance model of the RSC will prove effective to ensure they collectively take responsibility for workplace safety in Bangladeshi RMG exporting factories. The Accord signatories additionally recognize that to achieve and maintain safe workplaces requires the full participation of the workforce, sustainable purchasing practices, and strong accountability instruments. Accordingly, the Accord company and union representatives on the RSC Board are committed to safeguard the key characteristics of the Accord program including: that workers play an active role in advancing workplace safety and their right to freedom of association is protected; brands and retailers negotiate commercial terms to make remediation financially feasible; all inspection results and remediation activities are publicly disclosed; and the escalation protocol is effectively implemented to ensure that suppliers comply with the safety requirements.

Bangladesh Accord, The Launch of the Sustainability Council^{^[3]}

Today the functions of the Bangladesh offices of the Accord on Fire and Building Safety in Bangladesh have transitioned to the RMG Sustainability Council (RSC), a permanent national organisation with equal representation from RMG manufacturers, global apparel companies, and trade unions representing garment workers.

The RSC will initially conduct it’s workplace safety programs at the 1600+ RMG factories covered under the Accord, but is envisaged to eventually cover all RMG exporting garment factories. The RSC aspires to also encompass industrial relations, skills development and environmental standards.

Since mid-2013, Bangladeshi RMG factories have made significant improvements in workplace safety. More than 1200 Accord covered factories have completed more than 90% of the remediation of their Corrective Actions Plans. Through the work of the RSC, covered factories will be able to complete their CAPs and ensure that all outstanding safety issues are remediated and verified as correctly fixed, and that the labour-management Safety Committees in the factories are equipped and empowered to monitor and address workplace safety on a daily basis.

Rubana Huq, President of the BGMEA and industry representative on the RSC Board of Directors, said: “The RSC is an unprecedented national initiative and through our collective efforts with the brands and trade unions we will make sure that Bangladesh remains one of the safest countries to source RMG products from.”

China Rahman, General Secretary of the IndustriALL Bangladesh Council and trade unions representative on the RSC Board of Directors, said: “Together with our Bangladeshi trade union affiliates we will help ensure workers in RMG factories have safe workplaces and have access to remedy to address safety concerns and exercise the right to safe workplaces. We will work to ensure that workers to have trust in the newly established RSC”

Roger Hubert, H&M and brand representative on the RSC Board of Directors, said: “With the establishment of the RSC, brands can continue to honour their supply chain responsibilities that they have committed to through the Accord signed with the trade unions. The RSC will provide the assurance that workplace safety will continue to be addressed throughout out Bangladeshi RMG supply chain.”

Know the Chain, Forced Labour Action: Findings from Three Sectors^{^[4]}

Good Practice Examples: Addressing Restriction to Freedom of Association

In cases where freedom of association is restricted by law, such as China and Vietnam, H&M addresses this issue directly with its supplier factories as well as on industry and government levels. The company further works to empower workers with awareness about their labor rights and helps its suppliers establish functioning and democratically elected workplace representation.

Adidas encourages suppliers to maintain a “non-interference” environment where trade union activities are not only allowed, but also stimulated through effective systems of worker-management communication and collective bargaining. The company recognizes the challenges that workers might face in forming trade unions, particularly in countries such as China and Vietnam, where the creation of independent trade unions is prohibited by law.

Since these are major sourcing countries for the company, it has engaged with workers directly in order to identify parallel means for worker representation through direct worker-led elections, as well as to track the emergence of more representative state unions and the role of sectoral level collective agreements.

Further, Adidas has designed training modules to address freedom of association practices. Examples range from worker representative training in China in partnership with labor NGOs (these allow for the free election of worker representatives to welfare committees) to the development and dissemination of materials on strike management in Vietnam with the ILO.

The company also requires suppliers to issue “Right to Organize guarantees” to workers declaring their freedom to form and join unions of their own choosing in order to prevent direct infringement of rights or the workers’ freedom to exercise them. They have done this especially in situations when they discover direct infringement of rights (namely Indonesia, Sri Lanka, the Philippines, El Salvador, and Honduras).

Johnston & Land-Kazlauskas, Collective Bargaining in the Gig Economy^{^[5]}

‘Gig’ or platform-based work represents one of the most recent, highly-publicized labour market trends. Attributed to the increased demand for flexibility on the part of employers, better labour market efficiency and, in some cases the desire for greater flexibility on the part of workers, gig and platform-based work is one type of non-standard work facilitated through technology and digital markets, on-demand. Despite its relatively small size the gig economy has the potential to rapidly change the way work is organized and performed, to alter the content and quality of jobs, and to reshape industries. This paper examines challenges to freedom of association and the effective recognition of the right to collective bargaining for workers in the gig economy, and explores the broad range of strategies that gig-economy workers are using to build collective agency, and to promote effective regulation of gig work.

The benefits and costs of gig and platform work for employers, workers, and society remain highly contested. Advocates contend that digital labour platforms can economically benefit socially marginalized groups including the unemployed, geographically isolated, and refugees. For firms, gig work combines technological innovation with various contractual relationships that can reduce transaction and labour costs, provide ‘numerical flexibility’ in the face of fluctuating demand, and increase competitiveness. However, like non-standard employment more broadly, work content and work arrangements in the gig economy are diverse. Despite the possible benefits, jobs in the gig economy can also be structured in ways that can negatively impact workers (unpredictable scheduling, inconsistent earnings, unreliable long-term employment prospects) and firms (unfair competition, lower productivity and absenteeism).

We begin with an overview of gig and platform work and the structural and institutional challenges that gig- and platform-based workers in building collective, group agency. (…) The four organizational structures we explore (union renewal strategies and new organizing initiatives, worker forums, worker centres, and cooperatives) represent a comprehensive list of organizations that are actively organizing and supporting gig economy workers. Given the rapid turnover of the on-demand workforce, we view the tenacity and adaptive strategies of workers’ organizations as vital to developing a sustainable and dynamic labour movement. (…)

We maintain that technological innovation (including through the 4th industrial revolution) and collective bargaining are not mutually exclusive; an inability to conceive of their coexistence is nothing more than a failure of the imagination. (…)

Hayter, Industrial Relations in Emerging Economies^{^[6]}

Theoretical Perspectives on the Institutionalization of Industrial Relations

Theoretical perspectives of industrial relations have their origins in the response to the ‘labour problem’ that emerged in industrializing countries in the late nineteenth and early twentieth centuries. Faced with child labour, low wages, long working hours and hazardous working conditions, early trade unions used the ‘method’ of collective bargaining to improve working conditions. The gradual and incremental structuring of production relations through processes such as collective bargaining was seen as a means of ‘re-balancing the institutions of capitalism in order to bring about more stability, efficiency, justice and human values to the employment relationship’. (…)

Fox (1974) identified three ‘frames of reference’ in industrial relations that held very different assumptions about the nature of work, employment relations and conflict, resulting in different theoretical and explanatory approaches: unitarism, pluralism and Marxism (also known as the radical approach).

The unitarist perspective assumes that there is no difference in interests between an employer and employee. All actors and organizations share the same goals. Industrial relations is thus characterized by the ordering of common interests, the outcome of which is harmonious employment relations. This view is typical of human resource management according to which it is possible for employment policies and practices to align the interests of employees and employers (Lewin, 2001).

A pluralistic approach accepts conflict as an innate characteristic of employment relations and seeks pragmatic means to contain it (see, e.g., Fox, 1966; Clegg, 1979). According to this perspective, workers and employers with different interests require processes that help identify both common ground and potential trade-offs. Collective bargaining is seen as a principal means for keeping conflict within tolerable bounds. The incremental structuring of employment relations occurs as the result of an ongoing compromise between employers and employees, and their representative organizations. Employment relations is embedded in a stable system within which the interests of employers and workers can be reconciled. This institutionalization of employment relations also constitutes part of the broader corporatist social contract and is seen as the ‘ideal’ form for managing industrial conflict in the course of a country’s economic development. From this perspective, a rise in unofficial ‘wildcat’ strike action or social disorder is simply an indicator of an institutional lag.

A radical perspective of industrial relations sees conflict as an inherent characteristic of employment relations, and inevitable given the nature of capitalist development. The focus is on the nature of the capitalist society and the fundamental division between capital and labour. Employment relations under capitalism involves the control and deployment of labour in order to generate profit so that firms can continue to accumulate capital.(…)

Unlike the rich comparative literature that exists on developed economies, the study of the institutionalization of industrial relations in emerging economies is a less-developed subject of enquiry. Comparative studies on the role of trade unions in development from the 1950s and 1960s focused on the question of whether the growth of independent trade unions and collective bargaining contributed to, or impaired, development.

One view held that effective unions would secure a wage that was higher than the marginal product of labour and thus divert the scarce resources available for investment into consumption (Mehta, 1957). Moreover, the labour-intensive production on which these economies relied to generate economic growth would be frustrated if hours of work were too short and wages above internationally competitive levels. Unions would also make it difficult to fire unproductive workers. According to this view, collective bargaining was only appropriate after a sufficient level of industrialization had been achieved.

Galenson (1959, 1962), in comparative studies on the role of labour in developing countries, came to a very different view. Independent trade unions did not impair the investment function, instead they played an important role in securing a committed workforce (through improvements in working conditions and job security). The positive engagement of workers in production and change would offset any consumptionist pressure:

‘Independent trade unionism and satisfactory economic development are by no means antithetical. On the contrary, we believe that independent unions can make a major contribution to development by giving the individual worker a sense of personal dignity and a means of redressing his grievances. It is quite understandable for government leaders who are concentrating on the achievement of economic goals in the face of what must sometimes appear to be impossible odds to be impatient with intractable, ‘irresponsible’ representatives of workers. There is an ever-present temptation to silence them and to substitute paternalism for bargaining and conflict. But the price may be very high indeed: the loss to the nation of the creative energies of free men who feel themselves masters of their own fates rather than cogs in a vast, impersonal machine.’

The liberalization of markets [in 1980sand 1990s] posed new demands for labour market flexibility, which in turn eroded employment security at the core (of labour markets). The economic reforms generated higher levels of unemployment and inequality and the context for organized labour became increasingly unfavourable. Unions were often portrayed as ‘privileged special-interest groups’ and market-distorting institutions’ that pushed up wages at the cost of all those excluded from the labour market and surviving at the periphery. This legitimized policies to remove and reduce union power (rather than expand labour protection to those excluded).

Cambodian has ratified all core International Labour Standards including the two important conventions namely Convention No. 87 on Freedom of Association and Protection of the Right to Organize and Convention 98 on Right to Organize and Collective Bargaining. Freedom of association is defined as workers’ right to create organizations (trade unions) that represent them. It also applies to the organizations of employers. Collective bargaining is defined as the process of negotiation between employees and employers in particular on working conditions and terms of employments. Both conventions and national laws namely Cambodian Labour Law and Law on Trade Union recognize the right of all workers to form and join trade unions and bargain collectively. This collection covers the main aspects below.

Background (Cambodia)

Hall, The ILO’s BFC Programme^{^[7]}

III. Labor Rights in the Cambodian Constitution and the 1997 Labour Code

The Cambodian Constitution and Cambodia’s Labor Code articulate a range of labor rights. Article 36 of the Cambodian Constitution states that “Khmer citizens of either sex shall have the right to form and to be members of trade unions. The organization and conduct of trade unions shall be determined by law.”Article 41 of the Constitution establishes that “Khmer citizens shall have freedom of expression, press, publication, and assembly.”Article 42 states that “Khmer citizens shall have the right to establish associations and political parties. These rights shall be determined by law. Khmer citizens may take part in mass organizations for mutual benefit to protect national achievements and social order.”Chapter XI of the 1997 Labor Code deals in detail with the various legal rights of workers to organize,the protections guaranteeing labor union freedom,and representation of workers in the workplace.Article 266 states that “workers and employers, without distinction whatsoever, have the right, without previous authorization, to form professional organizations [labor unions and employer associations] of their choosing.”Article 267 establishes the right “to draw up their own charter and administrative regulations, as long as they are not contrary to existing laws and public policy; to freely elect their representatives; to formulate their plan of action.”

The 1997 Labor Code is extremely comprehensive and detailed, and covers a wide range of labor standards, from wages and hours to health and safety issues, in addition to basic labor rights.

ETI, Freedom of Association in Company Supply Chains^{^[8]}

Benefits of freedom of association

Freedom of association is good for people, good for society, good for business and good for morale.

Good for people: Workers who combine their interests by approaching their employer together as a group can help to balance the power inherent in any employment relationship. This encourages people to speak their minds without fear of reprisal. The relative security of numbers allows individuals to express themselves more openly and adds to the value of information that is exchanged.

Good for society: Rights to freedom of association and collective bargaining are called ‘enabling rights’, because they enable citizens to organise in order to realise other human rights and they underpin the democratic process. Not only do these rights directly assist with the improvement of living and working conditions, they contribute more broadly to economic and social development. In developing countries, freedom of association and collective bargaining can help establish a stable foundation for growth.

Good for business: Extensive research stretching back to the 1930s has demonstrated that, at the individual company level, employee engagement and the feeling of being valued contribute to increased quality, productivity and performance… Good industrial relations are generally characterised by:

Trust
Mutual confidence between employees and their
managers, and managers and their employees
Good interpersonal relations
Realistic working agreements and arrangements
A willingness to work together

Good for morale: A dialogue-based workplace empowers and engages its workers, enhancing morale and leading to improvements in performance. By contrast, a subdued and disempowered workforce will tend towards low engagement and underperformance.

Ideas of dialogue and negotiation may run counter to crude management approaches based on unilateral decision-making and action. Problems often result from managers’ nervousness about losing authority. But authoritarian management leaves little or no space for workers to express their needs and aspirations or for dialogue. Typical results are unhappy workers, rapid employee turnover, poor motivation and low productivity. Where a company encounters these issues in its supply chain, the first place to look is at the workplace management style. Tackling such problems at the root can be very beneficial for all concerned.

Instruments (Cambodia)

Constitution of the Kingdom of Cambodia^{^[9]}

Article 36:

(…) Khmer citizens of either sex shall have the right to form and to be member of trade unions.

The organization and conduct of trade unions shall be determined by law.

Article 37:

The right to strike and to non-violent demonstration shall be implemented in the framework of a law.

Article 42

Khmer Citizens have the rights to establish associations and political parties. These rights shall be determined by law.

Khmer citizens may take part in mass organizations to work together to protect national achievement and social order.

Labour Law^{^[10]}

Article 266:

Workers and employers have, without distinction whatsoever and prior authorization, the right to form professional organizations of their own choice for the exclusive purpose of studying, promoting the interests, and protecting the rights, as well as the moral and material interests, both collectively and individually, of the persons covered by the organization’s statutes.

Professional organizations of workers are called “workers’ unions”.

Professional organizations of employers are called “employers’ associations”.

Article 268

In order for their professional organization to enjoy the rights and benefits recognized by this law, the founders of those professional organizations must file their statutes and list of names of those responsible for management and administration, with the Ministry in Charge of Labor for registration. All requests for registration shall be appended with the statement of constitution of the organization.

If the Ministry in Charge of Labor does not reply within two months after receipt of the registration form, the professional organization is considered to be all ready registered. A copy of the statutes and the list of names of those responsible for management and administration shall be sent to the Labor Inspector’s Office where the organization was established, as well as to the Office of the Council of Ministers, to the Ministry of Justice and to the Ministry of Interior. The filing will be renewed when there are changes in the statutes or management.

Law on Trade Unions^{^[11]}

Article 5: Rights to Establish and to Join a Union or an Employer Association

All workers and employers have, without any distinction whatsoever, the rights to form a union or an employer association of their own choice for the exclusive purpose of study, research, training, promotion of interests, and protection of the rights and the moral and material interests, both collectively and individually, of the persons covered by union or employer association statutes.

Workers have the right to:

Take part in the formation of a union;
Be a member of a union and under its rules;
Participate in the legitimate activities of the union of which he or she is a member;
Seek and hold an office in any union of which he or she is a member and under its rules;
Take part in the election of representatives at the workplace where there is a regulation stipulating such election;
Be elected or appointed and serve as a workplace representative when there is a regulation stipulating for such election or appointment; and
May exercise any other rights provided for in this law.

Employers have the right to:

Take part in the formation of an employer association;
Be a member of any such association according to its rules;
Participate in the legitimate activities of the association of which they are a member;
Hold an office in that association according to its rules; and
May exercise any other rights provided for in this law.

Any unions or employer associations that include both employers and workers are forbidden.

Arbitration Council, Naga World (Employer) vs. Union^[12]

Issues in dispute

(From the Non-Conciliation Report of the Ministry of Labour and Vocational Training)

1. The workers demand that the employer refrain from discriminating against staff members taking part in strike action organised by the union and respect the right of staff members dismissed based on strike participation, to join union activities. The employer claims they do not discriminate based on race, in promotion, wage increase or dismissal.

2. The workers demand that the employer comply with the internal work rules and the Labour Law on taking disciplinary action and clearly define misconduct. The employer claims it has complied with the internal work rules and Labour Law.

3. The workers demand that the employer reinstate 8 staff members (…) and provide all reinstated employees with back pay. The employer claims it does not dismiss the workers based on discrimination as alleged. The dismissals were each based on different misconduct of each individual.

Decision and order

Issue 2 & 3:

Order the employer to reinstate Um Phalla and provide back pay for wages and benefits from the date of dismissal to the date of reinstatement and order the employer to punish Um Phalla in accordance with the internal work rules. (…) – Order the employer to pay Mr Jesus M. Pingul termination compensation:

Compensation in lieu of the 3-month prior notice
Indemnity for dismissal which is equal to 6 months‟ worth of wages and perquisites
Payment in lieu of unused annual leave
Damages which is equal to the indemnity for dismissal
Outstanding wages

ILO CFA, Case of Cambodian Alliance of Trade Unions (CATU)^[13]

Allegations: The complainant organization denounces the refusal to register a trade union at a garment factory; acts of anti–union discrimination following a strike, including dismissals, forced transfers, suppression of benefits and false criminal charges; the use of military force on striking workers; and alleges that section 269 of the Labour Act imposes excessive requirements for the determination and election of union leadership

B. The Government’s Reply

109. In its communication dated 30 May 2017, the Government indicates that it has never banned or delayed any trade union registration, that unions with properly completed and submitted applications containing all required documents are considered as having been registered and that, if there is a mistake in the application, the Registrar notifies the applicant of the need to make a rectification, which should not, however, be considered as a barrier for trade union registration. Furthermore, with the adoption of the 2016 Act on Trade Unions, the procedure for registration was reformed and simplified, in particular: (i) the registration period has been shortened from 60 to 30 days and a trade union will thus be considered as duly registered if the applicant does not receive any information from the Registrar within 30 days following the application; (ii) the Prakas No. 249 on Registration of Trade Unions and Employers’ Associations, issued on 27 June 2016, provides the details of the procedure, as well as a list of required documents and templates; and (iii) the authority to register trade unions has been delegated from the Ministry of Labour and Vocational Training (MLVT) in Phnom Penh to every Provincial Department of Labour and Vocational Training, which aims at saving the time and expenses of the applicants. The Government adds that the new Act on Trade Unions is aimed at protecting the legal rights of all interested persons covered by the Labour Act, including personnel working in the air and maritime transportation, ensuring the right to collective bargaining, promoting harmonious labour relations and contributing to the development of decent work and enhancement of productivity and investment. In order to ensure proper understanding of the law, a number of training courses for employers and workers have been conducted by the MLVT in collaboration with trade unions and employers’ associations. (…)

C. The Committee’s conclusions

113. With regard to the alleged obstacles to registration and the refusal to register a trade union at the factory level (recommendation (a)), the Committee notes the Government’s indication that the application for registration of CATU at the garment factory was received in March 2015 and the trade union was successfully registered in April 2015 within the time limit prescribed by law. The Committee welcomes this development and requests the Government to confirm that the concerned workers were duly informed of the union’s successful registration and that they can exercise legitimate union activities freely and without any interference. Further noting the Government’s statement that, with the adoption of the Act on Trade Unions, 2016 and the Prakas No. 249 on Registration of Trade Unions and Employers’ Associations, the registration procedure has been improved, simplified and made more accessible to the applicants, the Committee expects that this legislative reform will contribute to ensuring a simple, objective, transparent and rapid procedure for trade union registration in practice and will prevent the formulation of additional administrative obstacles. The Committee invites the Government to provide a copy of the Prakas No. 249 and refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.(…)

The Committee’s recommendations

118. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

The Committee welcomes the registration of the factory trade union and requests the Government to confirm that the concerned workers were duly informed of the union’s successful registration and that they can exercise legitimate union activities freely and without any interference. The Committee expects that the adoption of the new Act on Trade Unions, 2016 and the Prakas No. 249 on Registration of Trade Unions and Employers’ Associations will contribute to ensuring a simple, objective, transparent and rapid procedure for trade union registration in practice and will prevent the formulation of additional administrative obstacles. The Committee invites the Government to provide a copy of the Prakas No. 249 and refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.
The Committee urges the Government once again to take the necessary measures to review section 269 of the Labour Act and section 20 of the new Act on Trade Unions, in consultation with the social partners, in order to ensure that the law does not infringe workers’ right to elect their officers freely. The Committee requests the Government once again to take all necessary measures to ensure in the future that the notification requirement in section 3 of the Prakas No. 305 does not amount to a requirement for authorization by the employer to create a trade union or is not otherwise misused to halt trade union formation. The Committee refers the legislative aspects of this case to the Committee of Experts. (…)

ILO CFA, Effect Given to Recommendations^[14]

[re Case of Cambodian Alliance of Trade Unions]

26. In its communication dated 1 October 2018, the Government indicates that following the adoption of the 2016 Law on Trade Unions (LTU), the registration procedure has been simplified and reformed and that Prakas No. 249 on Registration of Trade Unions and Employers’ Associations, 2016, ensures a simple, objective, transparent and rapid procedure for trade union registration. In particular, it contains detailed information and assistance for newly established trade unions on how to obtain registration and provides a list of required documents and templates as samples and guidelines. The Government clarifies that the requirements listed in the Prakas should not be considered as additional administrative obstacles or a burden in the exercise of the right to freedom of association since by providing certain information, such as social security numbers and employment book numbers, the Ministry of Labour and Vocational Training (MLVT) can ensure that each worker is properly registered with the Ministry and the National Social Security Funds, so as to provide workers with full protection under the labour law. The Government also states that the simplification and reform under the LTU have resulted in an increase in the number of trade union registrations in 2017, both for local unions and for workers’ federations and confederations.

36. The Committee further notes that in a communication dated 5 April 2019, the Government informs that six trade union leaders who led the general strike in December 2013 were sentenced to a suspended two-and-a-half year imprisonment and ordered to jointly pay 35 million Cambodian Riels (US$8,661) as compensation to the plaintiffs for instigating intentional violence with aggravating circumstances, instigating acts of causing damage with threats and obstructing road traffic. The Government reiterates that in line with Convention No. 87, violent actions during strikes are not protected by national legislation and indicates that the cases of the six trade unionists are currently pending before the Court of Appeal. The Committee recalls in this regard that it had previously expressed concern at the acts of violence on both sides during the December 2013 and January 2014 demonstrations and emphasized that while the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Compilation, op. cit., para. 965], freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Compilation, op. cit., para. 82]. The Committee requests the Government to provide information on the outcome of the appeal proceedings concerning the six trade unionists, including a copy of the judgment once rendered, and trusts that no trade unionist will be sanctioned for having exercised their trade union activities. (…)

GMAC, Legal Pointer: Collective Bargaining Agreement^{^[15]}

7.1 Importance of CBA

CBA is made by the worker/employee party or professional organization of workers/employees and employer party or professional organization of employers in engaging in a new obligation. There are also some reasons that need to be found out and noted in creating a CBA whether what benefits the creation of the CBA have for the parties. According to its content it is to create obligation for the parties.

Although the creation of the CBA is tied to a new obligation, we can also in principle show that it has some remarkable benefits such as:

1. Benefits for workers/employees in the enterprise/establishment: Generally, we can say that workers/employees will get better benefits than the law during the validity of the CBA because the points set out in the CBA is better than those set out in the law. For example: the employer and workers/employees can set out in the CBA an agreement to provide lunch allowance of 2000 Riels or free lunch during the validity of the CBA for 2 years while this is the benefit that the workers/employees get better than the law and it is an obligation of the employer.

2. Benefits for the employer: In principle, the employer also gets some benefits: sustainability of industrial relations and production of the enterprise/establishment. The reason why we can dare to claim this is because during the length of the CBA, the workers/employees cannot demand more benefits than those set out in this CBA. On the other hand, the employer can determine a CBA stipulating the procedure of resolving a dispute, negotiation and some procedures. For example: the employer can set out an agreement stating that during the validity of the CBA, the workers/employees cannot demand more benefits than those already set out.

Consequence: Although, in principle, we have observed that the creation of CBA in the enterprise/establishment can have a positive impact for both parties, we have also observed that there are not many factories/enterprises making a negotiation to create CBA because (1) union with the most representative status cannot prevent unregistered unions or minority unions from demanding more benefits, (2) unions cannot reach a consensus: popularity remain the major topic for the parties; (3) law enforcement is still limited when the union violates the CBA.

Nuon & Serrano, Building Union in Cambodia: History, Challenges, Strategies^{^[16]}

Right to strike

The Labour Code also grants workers the right to strike and to participate in non-violent demonstrations5 but to the limit of minimum service guaranteed in all enterprise. The law also requires that for a strike to be legal it must first exhaust the process of conciliation, arbitration, and the strike vote. However, the process is frequently ignored by workers. The police are sometimes called to suppress the strike or demonstration and have been known to use violence.

Members’ motivations to join a union

Asked why they join unions, the reasons most frequently cited are: (a) the benefits derived from union membership; (b) improvement in working conditions; (c) enhanced job security; and (d) belief in the principles and objectives of unionism. (…)

When asked about the benefits they are getting from their union, at least half of the unionised respondents cite the following as the most common: (a) improved working conditions; (b) more benefits; (c) union education and training activities; (d) less intimidation and harassment from employer; and (e) grievances addressed at the workplace.(…)

Memorandum of Understanding on Industrial Relations in Garment Industry^{^[17]}

In the interest of promoting harmonious industrial relations in Cambodia, we, the undersigned parties^[18] representing workers and employers in the garment industry, have committed today to improve industrial relations in the garment industry. This solemn agreement, referred to as the MoU, has been reach freely and in good faith, and commits the parties to respect and adhere to certain key principle, and to follow up these principles with a number of concrete steps and actions.

This text specifies these principles and commitments.

Parties agree to adhere to national law;
Both parties support CBA in order to achieve certainty and predictability, and to protect rights and terms and conditions of work for both parties;
Both parties support the (Most Representative Status (MRS) as the exclusive bargaining agent on behalf of all workers in the enterprise. Minority unions can participate in the process by choice but along with all employees must respect the authority of the MRS union, and have no right to initiate or disrupt bargaining or to object to any CBA reached by MRS union.
A CBA negotiated by MRS union applies to all employees in the enterprise and no strike or lockout should be permitted by any group during the term of the CBA. No further claims shall be lodged by either party during the term of the agreement.

Collective Bargaining Agreement [Tourism and Airport Industries]^{^[19]}

Article I: Union’s Recognition

1.1 The Employer recognizes the union, a legal representative of employees recognized by Ministry of Labor … as a sole collective negotiating body relating to general terms and conditions for all employees covered by this Agreement as defined under Article 4 of this Agreement.

1.2 Employees with the entitlement to recruit, to terminate and/or to enact any disciplinary measure are not allowed to join the Union and are not covered by this CBA.

Article 2: Efficiency of the Collective Bargaining Agreement

2.1 In case of change of management or shareholders, Employer shall always comply with this Collective Bargaining Agreement.

2.2 In case of change the Chief Executive Officer or shareholders, Employer shall inform the Union Leaders. (…)

Article 4: Union’s Rights

4.1 If required in writing by the concerned staff, maximum two CAMS employees are entitled in each case of conflict to attend the meeting before dismissal and other individual conflict. Employer will not deduct remuneration for the time spent at the meeting. In case that the conflict cannot be solved by the parties, both parties are entitled to request the presence of their lawyer in the meeting.

4.2 Employer shall not deduct remuneration of the 2 union leaders who participate in the meeting with the Employer or with the related institutions for the resolution of any labour conflict.

4.3 In case of conflict between employee and Employer and if required, the Union and the Employer will organize such meeting as soon as possible in order to minimize trouble to operations.

4.4 The Employer must not interfere in the Union’s internal affairs and gives to employees the free choice of union leaders.

4.5 Upon Union request and upon members written authorization, the Employer will deduct from the salary of employees Union members the Union fee and transfer it to Union bank account. The Union provides to the Employer the Union members name list and the list of Union members who authorize this deduction with their fingerprint and signature.

4.6 The Employer provides one table, six chairs and one board for the Union and worker representatives’ library. Union provides and files the national and international law books, health documents, and relevant books concerned with Union affairs in order that employees can read while out of their working hours. Employee can have access into this room. The union shall be responsible for the usage of this room.

4.7 Employer shall provide per year a total of 12 days of paid leave per year for training for each Union. The attribution of “Union training leave” to which ever Union leader is done between Union leaders; the Employer shall not interfere.

Article 5: Management Rights

5.1 Subject only to the limitations contained in this CBA and in compliance with the legal requirements, the Employer retains the exclusive rights to manage its business (but not limited to) the rights to determine the methods and means by which its operations are to be carried on, to assign direct the workforce and to conduct its operations in a safe and effective manner.

Rullo, Empowering Women’s Labor Mobilization in Cambodia^{^[20]}

It is clear that global apparel brands are increasingly leveraging their unique positions of political, economic, and social influence to constitute active forces of transformative change. This study reveals that brands sourcing from Cambodia have taken important action in other politically volatile domestic contexts to create conditions that better support the meaningful labor organization of garment workers.

Although women workers make up the majority of the global garment sector workforce—most of the brand initiatives explored here do not adequately respond to the particular needs of women workers, nor are they intentionally designed to target the very real gender-specific barriers to freedom of association that women garment workers regularly face.

Drawing on and confirming the previously explored feminist arguments of Okin, MacKinnon, and Tsing, this work demonstrates that women garment workers are attempting to organize within political and economic contexts where patriarchal attitudes continue to negatively shape their experiences—contributing to grave barriers to their access to positions of leadership in labor organizing. Global apparel brand action that particularly empowers women’s agency by fostering their access to union leadership positions and space for labor mobilization would be a welcome and transformative component to help fill the political vacuum of justice that both Wettstein and Hsieh argue MNCs should play a more pronounced role to address.

Additionally, if CEDAW and other instruments of international human rights law provide that governments should leverage positive special measures in political realms to combat the forces of structural and historical gender inequality, this study argues that special measures of a similar spirit—in the form of positive corporate-led action to protect FOA—should correspondingly be leveraged by actors of global enterprise within economic realms to fill the vacuum of government failure, especially when governments demonstrate oppressive and authoritarian behavior.

Gone are the days when popular global brands can ignore the egregious repercussions of their choices to operate in politically challenging contexts. A unique alchemy of forces is needed to spark action among global apparel brands to intervene in politically charged issues to pressure governments to comply with their FOA rights obligations. This perfect storm of conditions is not only possible, but as proven here, is increasingly becoming a reality.

Lowenstein, Fixed-Duration Contracts Threaten Workers and Garment Industry^[21]

6. Labor Unions

Cambodia’s garment industry developed hand-in-hand with international monitoring of labor rights. This contributed to an explosion of union activity. Countless unions have sprung up, merged, split, and organized themselves into a variety of union federations. Their numbers, however, belie the difficulties they face in representing their membership.

Although freedom of association is protected by the Cambodian Constitution and Labor Law and is one of the key areas that the ILO-BFC evaluates, labor unions operate within a complex and treacherous terrain in Cambodia. Recent history has shown that those who speak out against labour conditions in Cambodia may do so at their own peril. Violence against union leaders, exemplified by the assassinations of Hy Vuthy on February 24, 2007, Chea Vichea on January 22, 2004, and others, has had a significant chilling effect on union activism.

There are independent unions in Cambodia that devote themselves to worker advocacy and that do so free from government or manufacturer influence, but there are also a number of “yellow unions,” unions that receive financial support from the government or employers for advocating positions that subordinate worker concerns to the desires of manufacturers. Despite these challenges, the independent unions have been surprisingly unified in speaking out against the widespread use of FDCs and the impact that FDCs have on freedom of association.

Questions

What is freedom of association and why is it important?
What are the challenges to freedom of association in Cambodia?
What can companies do to respect freedom of association at work? Can a company promote freedom of association of workers and what problems may this entail?
What are the obligations of the government regarding freedom of association?
Can civil society contribute to the promotion of freedom of association in Cambodia?
Why is worker membership in trade unions declining globally?
What have trade unions done in response the outsourcing of production and the ‘race to the bottom’ in the global economy?
Do trade unions in developed and developing countries have the same interests? Can they collaborate to match the power of transnational corporations? How?

Introduction

Health and safety (H&S), in the workplace as well as in local communities affected by hazardous industries, is a highly detailed and technical area. However, companies implementing their CSR commitments have found it relatively easier to make progress in H&S compared with other areas such as living wages (chapter 17), excessive overtime (chapter 18) and freedom of association (chapter 19). The biggest disaster in the textile industry happened in Bangladesh in 2013 (Rana Plaza) and the result has been one of the most advanced multistakeholder initiatives (chapter 5) endowed with a binding arbitration system to hold participating companies accountable (chapter 7). The right to refuse dangerous work without fearing the loss of jobs is now a better accepted principle. Worker-management committees focused on H&S are probably the most accessible form of improving workplace dialogue and possibly a first step towards building more ‘mature’ industrial relations, particularly in countries where labour unions are suppressed in law or in practice. Industrial disasters affecting local communities require an emphasis on disaster preparedness and early warning systems as part of human rights due diligence (chapter 10). Local communities often need to seek justice in courts abroad to obtain remediation for widespread pollution and industrial accidents due to weaknesses in the judicial systems in their own countries (chapters 6 and 29).

In 2018, Cambodia recorded 200 deaths of people as a result of work-related accidents while 34,608 workers were injured. Cambodia has not yet ratified ILO Conventions 155 and 187 dedicated to occupational safety and health. The Cambodian Labour Law and other general ministerial regulations set the requirements for all workplaces to be safe, health and hygienic for workers. There is room for Cambodia to improve OSH aspects through developing the Safety Act and putting in place more regulations for occupational safety and health. The International Labour Organization records 2.78 million deaths and 374 million fatal work-related injuries each year as a result of occupational accidents or work-related diseases. The right to a safe and healthy workplace is central to efforts to ensure decent work.

Main Aspects

Risks to business
International law standards
Responsibilities to record and notify
Designer and manufacturer responsibility
Right to refuse unsafe work
Safety and health culture
Corrective measures
Co-operation between management and workers
Health and Safety Committees, and freedom of association
Binding arbitration
Business reports
Standards for Occupational Health and Safety Management

Background

ILO, Safety and Health at Work^{^[1]}

Every day, people die as a result of occupational accidents or work-related diseases – more than 2.78 million deaths per year. Additionally, there are some 374 million non-fatal work-related injuries and illnesses each year, many of these resulting in extended absences from work. The human cost of this daily adversity is vast and the economic burden of poor occupational safety and health practices is estimated at 3.94 per cent of global Gross Domestic Product each year.

Hofmann, 100 Years of Occupational Safety Research^{^[2]}

The focus on occupational safety over the last 100 years has contributed significantly to saving thousands of lives. In the early 1900s, workplace deaths and injuries were quite common. (…) Clearly, the workplace has become safer. Technological improvements, work design changes, the use of personal protective equipment, and improvements in the broader safety culture of organizations have led to significant advances. That said, however, there are still too many incidents in the workplace. (…) At the outset, one must acknowledge that the field of occupational safety and health is quite broad spanning multiple disciplines and fields of study including, but not limited to, law, engineering, medicine, public health, business, and psychology.

Legislation on worker health and safety in the United Kingdom originated as a political response to social problems resulting from the Industrial Revolution and the associated poor working conditions in factories. The Factory Acts of 1833 and 1844 addressed specific working conditions for children (1833) and for women (1844). These acts established several basic protections such as limits on the number of hours worked, the securement of some class of machinery, and basic record keeping and inspections. Additional improvements were included in the Factory Acts of 1867, 1891, and 1895 along with advances in inspections of workplaces, requirements for accident reporting, and provisions for fire escape. (…)

Starting with initiatives dating back to the mid-1800s, we provide a high-level review of the key trends and developments in the application of applied psychology to the field of occupational safety. Factory laws, basic worker compensation, and research on accident proneness comprised much of the early work. Thus, early research and practice very much focused on the individual worker, the design of their work, and their basic protection. Gradually and over time, the focus began to navigate further into the organizational context. One of the early efforts to broaden beyond the individual worker was a significant focus on safety-related training during the middle of the 20th century. Toward the latter years of the 20th century and continuing the move from the individual worker to the broader organizational context, there was a significant increase in leadership and organizational climate (safety climate) research. Ultimately, this resulted in the development of a multilevel model of safety culture/climate.

Instruments

ILO, Occupational Safety and Health Convention^{^[3]}

(…) the term health, in relation to work, indicates not merely the absence of disease or infirmity; it also includes the physical and mental elements affecting health which are directly related to safety and hygiene at work.

Part III. Action at the national level

Article 12

Measures shall be taken, in accordance with national law and practice, with a view to ensuring that those who design, manufacture, import, provide or transfer machinery, equipment or substances for occupational use

(a) Satisfy themselves that, so far as is reasonably practicable, the machinery, equipment or substance does not entail dangers for the safety and health of those using it correctly;

(b) Make available information concerning the correct installation and use of machinery and equipment and the correct use of substances, and information on hazards of machinery and equipment and dangerous properties of chemical substances and physical and biological agents or products, as well as instructions on how known hazards are to be avoided;

(c) Undertake studies and research or otherwise keep abreast of the scientific and technical knowledge necessary to comply with subparagraphs (a) and (b) of this Article.

Article 13

A worker who has removed himself from a work situation which he has reasonable justification to believe presents an imminent and serious danger to his life or health shall be protected from undue consequences in accordance with national conditions and practice.

Part IV. Action at the level of the undertaking

Article 16

1. Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health.

2. Employers shall be required to ensure that, so far as is reasonably practicable, the chemical, physical and biological substances and agents under their control are without risk to health when the appropriate measures of protection are taken.

3. Employers shall be required to provide, where necessary, adequate protective clothing and protective equipment to prevent, so far as is reasonably practicable, risk of accidents or of adverse effects on health.

Article 18

Employers shall be required to provide, where necessary, for measures to deal with emergencies and accidents, including adequate first-aid arrangements.

Article 19

There shall be arrangements at the level of the undertaking under which

(a) Workers, in the course of performing their work, co-operate in the fulfilment by their employer of the obligations placed upon him;

(b) Representatives of workers in the undertaking co-operate with the employer in the field of occupational safety and health;

(c) Representatives of workers in an undertaking are given adequate information on measures taken by the employer to secure occupational safety and health and may consult their representative organisations about such information provided they do not disclose commercial secrets;

(d) Workers and their representatives in the undertaking are given appropriate training in occupational safety and health;

(e) Workers or their representatives and, as the case may be, their representative organisations in an undertaking, in accordance with national law and practice, are enabled to enquire into, and are consulted by the employer on, all aspects of occupational safety and health associated with their work; for this purpose technical advisers may, by mutual agreement, be brought in from outside the undertaking;

(f) A worker reports forthwith to his immediate supervisor any situation which he has reasonable justification to believe presents an imminent and serious danger to his life or health; until the employer has taken remedial action, if necessary, the employer cannot require workers to return to a work situation where there is continuing imminent and serious danger to life or health.

Article 20

Co-operation between management and workers and/or their representatives within the undertaking shall be an essential element of organisational and other measures taken in pursuance of Articles 16 to 19 of this Convention.

Article 21

Occupational safety and health measures shall not involve any expenditure for the workers.

ILO, Protocol to the Occupational Safety and Health Convention^{^[4]}

Systems for recording and notification

Article 2

The competent authority shall, by laws or regulations or any other method consistent with national conditions and practice, and in consultation with the most representative organizations of employers and workers, establish and periodically review requirements and procedures for:

(a) The recording of occupational accidents, occupational diseases and, as appropriate, dangerous occurrences, commuting accidents and suspected cases of occupational diseases; and

(b) The notification of occupational accidents, occupational diseases and, as appropriate, dangerous occurrences, commuting accidents and suspected cases of occupational diseases.

Article 3

The requirements and procedures for recording shall determine:

(a) The responsibility of employers:

(i) To record occupational accidents, occupational diseases and, as appropriate, dangerous occurrences, commuting accidents and suspected cases of occupational diseases;

(ii) To provide appropriate information to workers and their representatives concerning the recording system;

(iii) To ensure appropriate maintenance of these records and their use for the establishment of preventive measures; and

(iv) to refrain from instituting retaliatory or disciplinary measures against a worker for reporting an occupational accident, occupational disease, dangerous occurrence, commuting accident or suspected case of occupational disease;

(b) The information to be recorded;

(d) Measures to ensure the confidentiality of personal and medical data in the employer’s possession, in accordance with national laws and regulations, conditions and practice.

Article 4

The requirements and procedures for the notification shall determine:

(a) The responsibility of employers:

(i) to notify the competent authorities or other designated bodies of occupational accidents, occupational diseases and, as appropriate, dangerous occurrences, commuting accidents and suspected cases of occupational diseases; and

(ii) To provide appropriate information to workers and their representatives concerning the notified cases;

(b) Where appropriate, arrangements for notification of occupational accidents and occupational diseases by insurance institutions, occupational health services, medical practitioners and other bodies directly concerned;

(c) the criteria according to which occupational accidents, occupational diseases and, as appropriate, dangerous occurrences, commuting accidents and suspected cases of occupational diseases are to be notified; and

(d) The time limits for notification.

ILO, Promotional Framework for Occupational Safety and Health Convention^{^[5]}

Article 2

1. Each Member which ratifies this Convention shall promote continuous improvement of occupational safety and health to prevent occupational injuries, diseases and deaths, by the development, in consultation with the most representative organizations of employers and workers, of a national policy, national system and national programme.

2. Each Member shall take active steps towards achieving progressively a safe and healthy working environment through a national system and national programmes on occupational safety and health by taking into account the principles set out in instruments of the International Labour Organization (ILO) relevant to the promotional framework for occupational safety and health.

Article 5

1. Each Member shall formulate, implement, monitor, evaluate and periodically review a national programme on occupational safety and health in consultation with the most representative organizations of employers and workers.

2. The national programme shall:

(a) Promote the development of a national preventative safety and health culture;

(b) Contribute to the protection of workers by eliminating or minimizing, so far as is reasonably practicable, work-related hazards and risks, in accordance with national law and practice, in order to prevent occupational injuries, diseases and deaths and promote safety and health in the workplace;

(c) Be formulated and reviewed on the basis of analysis of the national situation regarding occupational safety and health, including analysis of the national system for occupational safety and health;

(d) Include objectives, targets and indicators of progress; and

(e) Be supported, where possible, by other complementary national programmes and plans which will assist in achieving progressively a safe and healthy working environment.

3. The national programme shall be widely publicized and, to the extent possible, endorsed and launched by the highest national authorities.

(…) the term a national preventative safety and health culture refers to a culture in which the right to a safe and healthy working environment is respected at all levels, where government, employers and workers actively participate in securing a safe and healthy working environment through a system of defined rights, responsibilities and duties, and where the principle of prevention is accorded the highest priority.

Accord on Fire and Building Safety in Bangladesh^[6]

About The Accord^[7]

The Accord on Fire and Building Safety in Bangladesh (the Accord) was signed on May 15th 2013. It is a five year independent [prolonged until May 2021], legally binding agreement between global brands and retailers and trade unions designed to build a safe and healthy Bangladeshi Ready Made Garment (RMG) Industry. The agreement was created in the immediate aftermath of the Rana Plaza building collapse that led to the death of more than 1100 people and injured more than 2000. In June 2013, an implementation plan was agreed leading to the incorporation of the Bangladesh Accord Foundation in the Netherlands in October 2013.

The agreement consists of six key components:

A five year legally binding agreement between brands and trade unions to ensure a safe working environment in the Bangladeshi RMG industry
An independent inspection program supported by brands in which workers and trade unions are involved
Public disclosure of all factories, inspection reports and corrective action plans (CAP)
A commitment by signatory brands to ensure sufficient funds are available for remediation and to maintain sourcing relationships
Democratically elected health and safety committees in all factories to identify and act on health and safety risks
Worker empowerment through an extensive training program, complaints mechanism and right to refuse unsafe work.

The Accord on Fire and Building Safety in Bangladesh^{^[8]}

Governance:

1. (…) The agreement shall be governed by a Steering Committee (SC), which shall have equal representation chosen by the trade union signatories and company signatories (maximum 3 seats each) and a representative chosen by the International Labor Organization (ILO) acting as a neutral chair and independent advisory member. (…)

2. Administration and management of the program will build on the existing structures, policies and programs developed under the preceding Accord, and shall be implemented in such a way as to not contravene Bangladesh law, and shall be oriented toward the aim of handing the work over to a credible national regulatory body at the end of this Agreement.

Dispute resolution:

3. Any dispute between the parties to, and arising under, the terms of this Agreement shall be presented to and decided by the SC. The Steering Committee shall adopt a revised Dispute Resolution Process (DRP) to specify the timelines and procedures involved when disputes are presented to the SC, with the aim to establish a fair and efficient process. The decision making process of the SC shall be supported by a member of Accord secretariat who will perform an initial investigation for the parties and present facts and their recommendations.

The DRP will also incorporate the opportunity for parties to participate in a mediation process in order to make arbitration unnecessary where there is no resolution of the dispute by the SC. Upon request of either party, the decision of the SC may be appealed to a final and binding arbitration process. (…)

Remediation:

7. Where corrective actions are identified by the CSI as necessary to bring a factory into compliance with building, fire and electrical safety standards, the signatory company or companies that have designated that factory as their supplier shall require the factory to implement these corrective actions according to a defined schedule that is mandatory and time-bound, with sufficient time allotted for all major renovations.

9. Signatory companies shall make reasonable efforts to ensure that any workers whose employment is terminated as a result of a factory termination or relocating triggered by Accord activities, are offered employment with safe suppliers.

10. Signatory companies shall require their supplier factories to respect the right of a worker to refuse work that he or she has reasonable justification to believe is unsafe, without suffering discrimination or loss of pay, including the right to refuse to enter or to remain inside a building that he or she has reasonable justification to believe is unsafe for occupation.

Transparency and reporting:

14. The SC shall make publicly available and regularly update information on key aspects of the program, including:

a. A single aggregated list of all suppliers in Bangladesh (including sub-contractors) used by signatory companies, based on data which shall be provided to the SC and regularly updated by each of the signatory companies. Information linking specific companies to specific factories will be kept confidential.

b. Written Inspection Reports, which shall be developed by the CSI for all factories inspected under this program, shall be disclosed to interested parties and the public as set forth in paragraph 6 of this Agreement.

c. Public statements by the CSI identifying any factory that is not acting expeditiously to implement remedial recommendations shall be issued as per an escalation procedure determined by the SC.

d. Quarterly Aggregate Reports that summarize both aggregated industry compliance data as well as a detailed review of findings, remedial recommendations, and progress on remediation and training to date for all factories at which inspections and training have been completed.

Supplier incentives:

16. Each signatory company shall require that its suppliers in Bangladesh participate fully in the inspection, remediation, health and safety and training activities, as described in the

Agreement. If a supplier fails to do so, the signatory will promptly implement a notice and warning process in accordance with the Escalation Protocol established by the SC leading to termination of the business relationship.

17. In order to induce factories to comply with upgrade and remediation requirements of the program, participating brands and retailers will negotiate commercial terms with their suppliers which ensure that it is financially feasible for the factories to maintain safe workplaces and comply with upgrade and remediation requirements instituted by the CSI. Each signatory company may, at its option, use alternative means to ensure factories have the financial capacity to comply with remediation requirements, including but not limited to joint investments, providing loans, accessing donor or government support, through offering business incentives or through paying for renovations directly.

18. Signatory companies to this agreement are committed to maintaining a long-term sourcing relationship with Bangladesh, as is demonstrated by their commitment to this three-year program.

Alliance for Bangladesh Worker Safety^[9]

The Members commit to:

Support the implementation of the National Tripartite Plan of Action on Fire Safety for the Ready-Made Garment Sector in Bangladesh (NAP);
Empower workers to take an active role in their own safety, and to be able to speak out about unsafe conditions without any risk of retaliation;
Work with factories that ensure a safe working environment, with each Member committing not to source from any Factory that the Member has deemed to be unsafe;
Rapid implementation that is results-focused and non-bureaucratic;
Providing safety inspection, and safety and empowerment training for 100% of Factories in the Members respective supply chains;
A common standard for safety inspections and safety and worker empowerment training;
Use of transparency to create accountability for all stakeholders involved;
Sharing of information on training, current and future fire and building safety inspections and remediation actions;
Strive to end unauthorized subcontracting within their supply chains, and review their internal policies to ensure application of best practices for addressing unauthorized subcontracting; • Independent monitoring and verification of their work;
Inclusion of diverse stakeholders in decision making and collaboration in implementation;
A Bangladeshi focus, with a framework that engages and builds capacity of key stakeholders, including the Government of Bangladesh and Bangladeshi industry; and • Commitment of substantial financial resources to accomplish these tasks, as well as encouraging and assisting in the establishment of sustainable mechanisms to meet these objectives.

In seeking to achieve these objectives, the Alliance recognizes the importance of building partnerships with the Bangladeshi government, the Bangladesh Garment Manufacturers and Exporters Association (“BGMEA”), the Bangladesh Knitwear Manufacturers and Exporters Association (“BKMEA”), workers’ rights organizations, other RMG buyers’ groups (including the Accord on Fire and Building Safety in Bangladesh (“the Accord”)), and others who support safer work conditions in Bangladesh RMG Factories.

To this end, the Members agree to the financial commitments and the components of the worker safety program described below. The Alliance Members are fully committed to creating conditions for the benefit of workers in the Bangladesh RMG industry that are not only safe but sustainable, with appropriate and careful oversight and regulation by the Bangladeshi government. The Members of the Alliance recognize that their role is to provide meaningful material assistance to reach these goals and to assist in the creation of a self-reliant Bangladesh RMG industry, while recognizing that ultimately the responsibility for and control over the industry and the safety of its workers rests with the sovereign nation of Bangladesh, its government and its people.

IFC, Performance Standards 4 on Community Health, Safety and Security^[10]

1. Performance Standard 4 recognizes that project activities, equipment, and infrastructure can increase community exposure to risks and impacts. In addition, communities that are already subjected to impacts from climate change may also experience an acceleration and/or intensification of impacts due to project activities. While acknowledging the public authorities’ role in promoting the health, safety, and security of the public, this Performance Standard addresses the client’s responsibility to avoid or minimize the risks and impacts to community health, safety, and security that may arise from project related-activities, with particular attention to vulnerable groups. (…)

Community health and safety

5. The client will evaluate the risks and impacts to the health and safety of the Affected Communities during the project life-cycle and will establish preventive and control measures consistent with good international industry practice (GIIP),^[11] such as in the World Bank Group Environmental, Health and Safety Guidelines (EHS Guidelines) or other internationally recognized sources. The client will identify risks and impacts and propose mitigation measures that are commensurate with their nature and magnitude. These measures will favor the avoidance of risks and impacts over minimization. (…)

Community exposure to disease

9. The client will avoid or minimize the potential for community exposure to water-borne, water-based, water-related, and vector-borne diseases, and communicable diseases that could result from project activities, taking into consideration differentiated exposure to and higher sensitivity of vulnerable groups. (…)

10. The client will avoid or minimize transmission of communicable diseases that may be associated with the influx of temporary or permanent project labor.

Emergency preparedness and response

11. (…) the client will also assist and collaborate with the Affected Communities, local government agencies, and other relevant parties, in their preparations to respond effectively to emergency situations, especially when their participation and collaboration are necessary to respond to such emergency situations. If local government agencies have little or no capacity to respond effectively, the client will play an active role in preparing for and responding to emergencies associated with the project. The client will document its emergency preparedness and response activities, resources, and responsibilities, and will disclose appropriate information to Affected Communities, relevant government agencies, or other relevant parties.

Security personnel

12. When the client retains direct or contracted workers to provide security to safeguard its personnel and property, it will assess risks posed by its security arrangements to those within and outside the project site.

International Organization for Standardization, ISO 45001^[12]

This document specifies requirements for an occupational health and safety (OH&S) management system, and gives guidance for its use, to enable organizations to provide safe and healthy workplaces by preventing work-related injury and ill health, as well as by proactively improving its OH&S performance.

This document is applicable to any organization that wishes to establish, implement and maintain an OH&S management system to improve occupational health and safety, eliminate hazards and minimize OH&S risks (including system deficiencies), take advantage of OH&S opportunities, and address OH&S management system nonconformities associated with its activities.

This document helps an organization to achieve the intended outcomes of its OH&S management system. Consistent with the organization’s OH&S policy, the intended outcomes of an OH&S management system include:

continual improvement of OH&S performance;
fulfilment of legal requirements and other requirements;
achievement of OH&S objectives.

Success factors

The implementation of an OH&S management system is a strategic and operational decision for an organization. The success of the OH&S management system depends on leadership, commitment and participation from all levels and functions of the organization.

The implementation and maintenance of an OH&S management system, its effectiveness and its ability to achieve its intended outcomes are dependent on a number of key factors, which can include:

top management leadership, commitment, responsibilities and accountability;
top management developing, leading and promoting a culture in the organization that supports the intended outcomes of the OH&S management system;
communication;
consultation and participation of workers, and, where they exist, workers’ representatives;
allocation of the necessary resources to maintain it;
OH&S policies, which are compatible with the overall strategic objectives and direction of the organization;
effective process(es) for identifying hazards, controlling OH&S risks and taking advantage of OH&S opportunities;
continual performance evaluation and monitoring of the OH&S management system to improve OH&S performance;
integration of the OH&S management system into the organization’s business processes;
OH&S objectives that align with the OH&S policy and take into account the organization’s hazards, OH&S risks and OH&S opportunities;
compliance with its legal requirements and other requirements.

AngloAmerican, Code of Conduct^[13]

We believe that robust processes for the management of safety, health and the environment are a fundamental element of good management practice, and essential for creating a safe and productive place to work and for maintaining our licence to operate.

Safety

We believe that all injuries are preventable – our aim is that ‘zero harm’ comes to those who work within and around our operations. We take personal responsibility to maintain a safe and secure place of work – our operations should have fundamentally safe, well-designed and well-maintained plants, equipment and infrastructure, with effective safety management systems.

We comply with all applicable safety laws in addition to our own policies and requirements. We ensure that all our staff are appropriately trained to manage their own safety and that safety standards are consistently applied across our operations. We are rigorous in learning from incidents and in preventing recurrences. We expect our consultants, agents, contractors and suppliers to follow our policies and requirements on safety.

Always

Know the safety requirements and emergency procedures that apply to your work, including the Personal Protective Equipment (PPE) you must wear.
Identify, assess and manage critical risks.
Look out for your fellow workers and raise any potential safety issues with your line manager.
Deal with safety issues honestly and openly.
Report any accident, injury or illness.
Close out and act on any learning from safety incidents.
Stop work if you think it is unsafe.

Never

Start work you are not qualified to perform.
Ignore a safety issue, however small it may seem.
Turn a blind eye if safety controls are not in place, not being followed or don’t work.
Assume someone else will report a risk or concern; safety is everyone’s personal responsibility.

Health

Providing healthy work environments is a legal and moral imperative for us and constitutes an investment in the productivity of our business.

All employees and contractors should be able to return home fit and well at the end of each shift and remain so during the course of their working lives. Our most important focus is on eliminating health hazards at their source. We believe that investing in wellness programmes that support healthy lifestyles and emotional resilience promotes employee engagement and productivity. We also endeavour to support employees who are managing long-term physical or psychological conditions.

We believe that long-term contractors should benefit from the same health standards as employees. We comply with all applicable health laws in addition to our own policies and requirements.

Always

Take personal responsibility for your own health by wearing the necessary personal protective equipment (PPE) and adhering to mandated work processes.
Take appropriate preventative measures for any infectious diseases prevalent in the area(s) where you are working.
Proactively identify health risks and report these to your manager.
Ensure that the correct controls are in place when undertaking daily tasks.

Never

Fail to adhere to mandatory PPE requirements.
Ignore a failure in controls – take responsibility for reporting these and preventing harm.

Bangladesh Accord, Quarterly Aggregate Report^{^[14]}

Key milestones

Bangladesh Accord, The Accord Handbook for Safety Committees^{^[15]}

This handbook aims to support joint worker-management Safety Committees to effectively contribute to workplace safety at garment factories in Bangladesh. The handbook is distributed to Safety Committees being supported and trained by the Accord on Fire and Building Safety in Bangladesh (the ‘Accord’), but can be of use for any factory Safety Committee in the Ready-Made-Garment and related industries in Bangladesh. The book is based on the Safety Committee training curriculum that the Accord offers to Safety Committees.

Factory-level Safety Committees are an essential part of any factory’s health and safety program. In order for a Safety Committee to be effective, both the worker and management representatives on the Safety Committees must be aware of their roles and responsibilities to identify, prevent and address safety concerns at the factory on an ongoing basis. (…)

The Accord protects workers’ rights to:

Refuse work they believe to be unsafe
Participate in the work of their factory Safety Committee
File a complaint with the Accord when they see a safety problem in their factory
Protection against reprisal for reporting safety-related matters
Not be subjected to reprisal for Freedom of Association in relation to protecting their own safety. This means that workers have the right to be involved in making their workplace safe and healthy, individually as well as collectively through a trade union, and can do so without retaliation or discrimination.

(…)

The inspection and remediation program focuses on fire, electrical and structural inspections at factories and working with factories and brands to remediate the identified safety hazards.

The Accord workplace program focuses on making workers aware of safety hazards and how to respond to them, their rights to a safe workplace and involving workers in the efforts to make factories safe. The key elements of the workplace program include

training joint worker-management Safety Committees in all Accordcovered factories;
holding informational sessions for all workers in the factory on health and safety rights and
providing workers with an independent complaints mechanism for raising health and safety issues without fear of reprisal.

Hazard Controls

Knowing the hazards that exist in your factory is only the first step in reducing the hazards at work. Some hazards can be totally eliminated, and that is obviously the best approach to take with hazards. But many hazards cannot be totally eliminated, so we need to reduce or control those hazards. There are four levels of hazard control, as shown in this illustration, called the Hazard Control Pyramid:

Global Report Initiative, Sustainability Reporting Guidelines^[16]

Occupational Health and Safety

G4-LA5 Percentage of total workforce represented in formal joint management–worker health and safety committees that help monitor and advise on occupational health and safety programs

a. Report the level at which each formal joint management-worker health and safety committee typically operates within the organization.

b. Report the percentage of the total workforce represented in formal joint management-worker health and safety committees.

G4-LA6 Type of injury and rates of injury, occupational diseases, lost days, and absenteeism, and total number of work-related fatalities, by region and by gender

a. Report types of injury, injury rate (IR), occupational diseases rate (ODR), lost day rate (LDR), absentee rate (AR) and work-related fatalities, for the total workforce (that is, total employees plus supervised workers), by:

Region
Gender

b. Report types of injury, injury rate (IR), occupational diseases rate (ODR), lost day rate (LDR), absentee rate (AR) and work-related fatalities for independent contractors working on-site to whom the organization is liable for the general safety of the working environment, by:

Region
Gender

c. Report the system of rules applied in recording and reporting accident statistics.

G4-LA7 Workers with high incidence or high risk of diseases related to their occupation

a. Report whether there are workers who are involved in occupational activities who have a high incidence or high risk of specific diseases.

G4-LA8 Health and safety topics covered in formal agreements with trade unions

a. Report whether formal agreements (either local or global) with trade unions cover health and safety.

b. If yes, report the extent, as a percentage, to which various health and safety topics are covered by these agreements.

Human Rights Dilemmas, Health and Safety as Work^[17]

Risks to businesses

Legal risks

Most countries have legislation providing for OHS protections. If a company is found to have breached any legislation surrounding limitations on health and safety then it could face penalties. Penalties could include fines, remediation, and restitution for employees or compensation. (…)

Operational risks and risks to business continuity

Poor health and safety practices and unsafe workplaces increase the risk of accidents in workplaces, resulting in interruptions at work, work stoppages or employee shortages. There are direct and indirect risks for companies:

Direct risks include:

The loss of essential staff
Business disruption due to accidents
Damage to products or machinery and equipment
Increased insurance premiums
The costs of improving workplace systems

Indirect risks include:

Decrease in job satisfaction and morale
An increase in absenteeism
The need, at times, to train a replacement employee while a worker is sick or injured
Loss of reputation within a supply chain

Suggestions for Responsible Business

Adopting a forward-looking human rights compliance policy with procedures to match

Policy

Compliance with national laws concerning health and safety, such as the provision of protective clothing and equipment, ensuring machinery is in good working condition and regulating temperature and ventilation. Where local laws differ from company policy, the higher standard should prevail. Company policy on health and safety should be guided by ILO Conventions on health and safety
If there are no national health and safety laws or if laws are weak or poorly enforced, the company policy should commit to international standards, ILO Convention No. 155, on Occupational Safety and Health, ILO Recommendation No. 164, on Occupational Safety and Health and ILO Convention No. 174, on the Prevention of Major Industrial Accidents
Committing to voluntary international health and safety guidelines including OHSAS18001 and complementary standards including the International Organization for Standardization’s 14000 and 14001. The Occupational Health and Safety Assessment Series assist organizations in managing health and safety risks in their operations. Companies that have adopted the OHSAS standard include Coca-Cola, Lexmark and IBM
Ensuring that company health and safety policies are tailored to the particular risks in the industry or sector
A grievance mechanism, in line with the Ruggie Framework, which allows employees to raise issues in relation to health and safety
Supplier contracts with the MNC must require compliance with the MNC’s social policy, as well as to maintain a grievance process to address claims in relation to health and safety. For example, Rio Tinto’s Health, Safety, Environment and Quality (HSEQ) management system standard requires that “principal contractors, suppliers and others with whom it has a substantial involvement” must comply with this standard

Procedure

Implement a health and safety programme to ensure the realisation of the policy by having a comprehensive management system in place. GE, for example, has a comprehensive Environmental, Health and Safety (EHS) management system that focuses on four key building blocks. These building blocks include (1) operational responsibility and accountability relating to EHS performance, (2) programmes that are applicable to the company’s global operations, (3) effective training and the tools and (4) metrics. (…)
Monitor the prevalence of accidents and ill-health within an industry and the social and economic context in order to gauge underlying risks of the workplace and how health and safety issues apply to particular industries and workplaces
Effectively communicate any health and safety policy, associated guidance and procedures to personnel and, if relevant, to suppliers, subcontractors and business partners
Provide employees with regular training and awareness building to sensitise them to the risk of accidents and the related dangers of working long hours without breaks. This should also foster awareness and shared responsibility and accountability in relation to health and safety practices
Continually review and improve health and safety policies and procedures to ensure that they are in-line with best practice and to train managers accordingly. Dow monitors health and safety policies through its Environment, Health and Safety Committee. The committee’s functions include the review of health and safety policies and the management of health and safety practices. The committee reports back to the company’s board of directors so it is able to fulfil its responsibilities in respect to the environmental health and safety policy
Implementation of grievance procedures for both employees and for suppliers. They can be internal or they could be at the industry-level (e.g. ombudsperson)

ILO, Guide on Investigation of Occupational Accidents and Diseases^{^[18]}

Accident investigation checklist

1. Action to be taken upon notification of the accident (…)

2. Gather information

A. Upon arrival at the site identify the employer and worker representatives and explain the purpose of the visit.

B. For each injured worker, collect the following information (this list is not exhaustive):

The precise details and severity of the injuries and how they were caused, as well as the worker’s job title, employment history at the site, date of birth and contact information
Where and when the accident happened
Details of the work activity in which the injured worker was engaged and the system of work in use at the time of the accident
Details of the equipment that was in use, including make, model and serial number, as well as other equipment, such as ladders, scaffolding, electric cables and personal protective equipment
Information on the exact condition of the equipment in use, including location, guarding arrangements and position of control switches, before and after the accident
The names, contact information and position of other workers at the scene and information on the activities and systems of work in which they were engaged
The system of work that would normally have been used to carry out the activity in which the injured person was engaged, and any differences from the system of work that was being followed at the time of the accident
The environmental conditions at the time of the accident, e.g. day or night, weather conditions
The general conditions at the workplace, including housekeeping, lighting and noise levels, vehicle movement, ventilation equipment, welfare facilities.

C. Obtain the following documents (this list is not exhaustive):

(…)

D. Interview the witnesses:

Identify all witnesses and, once the planning has been completed, begin the interviews.
Use the PEACE model (Plan, Engage, Account/Challenge, Closure, Evaluate).
Use “TED” (open) questions to obtain information.
Use closed questions to clarify facts or obtain specific information.

3. Analyse the information obtained

Complete the timeline to establish the sequence of what happened and conduct a fault tree analysis to identify why it happened. Keep asking “why” questions until no more meaningful information is obtained.

4. Identify risk control measures

Identify all of the preventive control measures that would have broken the chain of causation and determine which of them are to be implemented in the future, following, if possible, the hierarchy of controls: Elimination, Substitution, Engineering controls, Administrative controls, Personal Protective Equipment.

5. Monitor implementation of the action plan

Ensure that the agreed actions designed to improve working conditions have been completed, including, among other things, by conducting follow-up visits.

6. Complete report(s)/document information

Background (Cambodia)

ILO, Evaluation of the ILO’s Strategy on Occupational H&S^{^[19]}

Occupational Safety and Health in Cambodia

The right to a safe and healthy working environment is at the heart of efforts to ensure full and productive employment, in conditions of security and human dignity. Attention is drawn to this right in the ILO Constitution, and has been reaffirmed both in the 1944 Declaration of Philadelphia and the more recent Declaration on Social Justice for a Fair Globalization (2008). Although Cambodia is yet to ratify key ILO Conventions on the subject, protection of individual rights to occupational safety and health (OSH) are covered in the 1997 Labour Law (LL), which together with the general requirement for all workplaces to be safe, healthy and hygienic for workers, also sets out a number of special provisions relating to inter alia, workplace medical care, access to safe drinking water, noise levels, lighting, heat and ventilation. Many of these are supported by accompanying ministerial regulations, or prakas, which elaborate further on the responsibilities of the firm and the entitlements of the worker.

The LL also seeks to define workplace accidents, as well as the responsibilities of the employer with regard to accident response and injury-related compensation. Responsibility for OSH labour inspection lies with the Department of Occupational Health in the Ministry of Labour and Vocational Training (MoLVT).

Cambodia is currently implementing its first OSH Master Plan, which came into force in April 2009 and covers the four-year period to 2013.36 This plan sets out a vision for the labour market in the country under which it will seek to institutionalize a preventative health and safety culture in the workplace, as well as support enterprise level initiatives and programmes both to raise awareness on OSH issues and develop practical systems for accident and injury prevention (in compliance with the labour law and OSH inspection requirements).

The Master Plan defines six areas for priority action: (1) Strengthen national OSH systems; (2) improve safety and health inspection and compliance with Labour Law; (3) promote OSH activities by employers’ and workers’ organizations; (4) implement special programmes for hazardous occupations; (5) extend OSH protection to small enterprises, and rural and informal economy workplaces; and (6) promote collaborative actions with hazardous child labour and HIV/AIDS projects for stronger compliance.

In addition to this master plan, the Cambodian Royal Government has many other laws and regulations regarding the protection of workers as regards healthy and safety at work. However, the implementation of these laws and regulations is still limited, and workers face many problems related to OSH.

Instruments (Cambodia)

Labour Law^{^[20]}

Article 229:

All establishments and work places must always be kept clean and must maintain standards of hygiene and sanitation or generally must maintain the working conditions necessary for the health of the workers.

The Ministry in Charge of Labor and other relevant ministries shall prepare a Prakas (ministerial order) to monitor the measures for enforcing this article in all establishments subject to the provisions of this Chapter, particularly regarding:

the quality of the premises;
cleaning;
hygienic arrangements for the needs of personnel;
beverages and meals;
lodging of the personnel, if applicable;
work stations and the seating arrangements;
ventilation and sanitation;
individual protective instruments and work clothes;
lighting and noise levels in the workplace.

Article 230:

All establishments and work places must be set up to guarantee the safety of workers. Machinery, mechanisms, transmission apparatus, tools, equipment and machines must be installed and maintained in the best possible safety conditions. Management of technical work utilizing tools, equipment, machines, or products used must be organized properly for guaranteeing the safety of workers.

The Prakas covered in Article 229, shall also determine the measures for enforcing this article, particularly regarding:

risks of falling;
moving heavy objects;
protection from dangerous machines and apparatus;
preventive measures to be taken for work in confined areas or for work done in an isolated environment;
risks of liquids spilling;
fire prevention.

Article 284:

The missions of the shop steward are as follows:

(…)
to make sure the provisions relating to the health and safety of work are enforced;
to suggest measures that would be beneficial to contribution towards protecting and improving the health, safety and working conditions of the workers in the establishment, particularly in case of work-related accidents or illnesses (…)

Prakas on Occupational Hygiene and Safety in Garment and Shoe Factories^{^[21]}

Article 4: Use of Chemicals

(…) For the sake of worker and public safety, the employers shall:

Train their staff properly on how to use chemicals before assigning them to work [with the chemicals];
Ensure that all chemicals are only used in an isolated area where there is no emission to other places;
Set up an air pump-out system which ensures that the outgoing air does not impact on public environment;
Ensure that people working with chemicals are equipped with sufficient and effective protective equipment;
Ensure that emergency exits are in place;
Health and safety signs and warehouse regulations shall be written in a simple way, posted properly in a prominent place, and always be kept in a good state.

Article 5: Workplace Safety Training for Workers

The employers of all garment and shoe enterprises/factories/handicraft workshops shall have the obligation to necessarily train their workers and worker representatives on hygiene, workplace safety and health issues relevant to the work in each position.

The training shall explain to the workers:
Risks caused by physical factors (heat, noise, light, rays, vibration, etc.);
Risks of chemicals, biological and mechanical substances, electricity, fire;
Possible risks caused by night work;
Effective preventive measures;
Behavior in an emergency, when it comes to a rescue of victim
The training shall be provided:
At the start of work;
When there is a job transfer;
When production techniques or machines are changed, or when new raw materials are allocated;
After workers take long time off (more than one month).
The training shall be conducted by a genuine technician during working hours, and the workers attending the training shall be entitled to normal wages.

Law on Construction^{^[22]}

Article 9

Every construction shall comply with the fire safety regulations, as determined in the building technical regulations and provisions of fire prevention and extinguishment.

The classifications, types, and sizes of construction that requires fire safety certification shall be determined by an inter-ministerial Prakas by the Minister of Land Management, Urban Planning and Construction and the Minister of Interior.

Article 42

If it is necessary to ensure public security, safety, and order, the competent authority can assign a construction controller to check building or demolition works.

The construction owner, construction users, persons involved in building works, including a real estate developer, a builder and a construction certifier shall give cooperation to the construction controller.

The competent authority may decide to suspend, modify, halt, or require the demolition of a construction, or take other necessary measures if the building or demolition work has been found not to comply with the building technical regulations and other existing regulations.

Article 47

A construction which is used for non-residential purposes requires a quality and safety control within a maximum period of 5 (five) years from the day when the certificate of occupancy is issued. Quality and safety control shall be further conducted regularly once every 5 (five) years, at the latest.

A construction which is used for residential purposes requires a quality and safety control within a maximum period of 10 (ten) years from the day when the certificate of occupancy is issued. Quality and safety control shall be further conducted regularly once every 10 (ten) years, at the latest.

Quality control and certification of the quality and effectiveness of the construction’s fire prevention and extinguishment system shall be conducted once every 2 (two) years.

Hazardous construction equipment requires a control once a year. The types of hazardous construction equipment shall be determined by a Prakas of the Minister of Land Management, Urban Planning and Construction.

A construction owner or a building manager has an obligation to hand over the result of the construction’s safety and quality control to the competent authority within a period of 1 (one) month, after the deadline for the conduct of the construction’s quality and safety control.

Article 48

The competent authority may require a quality and safety control if there exists a risk to human life, property or effect on public security or order.

Article 49

Construction safety and quality control shall be conducted by construction controllers or certifiers who hold a license granted by the Minister of Land Management, Urban Planning and Construction.

Every expense for construction safety and quality control shall be borne by a construction owner.

For a co-owned building, the owners of all private units shall be jointly responsible for every expense for construction safety and quality control, in proportion to the sizes of private units.

FLA, Occupational Health and Safety Assessment of Huey Chuen^{^[23]}

The investigation was carried out through individual and group interviews with a large number of stakeholders, direct observation and testing, citing and reviewing of appropriate documentation, job task analysis and risk assessment. A thorough review of the PUMA and FLA Codes of Conduct was undertaken. A review of all Cambodian Labor Laws and Prakas1 was undertaken and relevant internationally recognized standards are referenced where the local standards were inadequate or none existed. (…)

The possibility that such fainting and subsequent illness might be attributable to the use of raw materials or chemicals at the workplace without proper ventilation

There is a strong possibility that the fainting and illnesses reported are due to the chemicals used in the factory. There are a large number of fans attempting to dilute the organic solvents but this does not appear to be sufficient in some areas. Associated with this is the high ambient temperature which would add to the vapours though evaporation. This should be formally tested. The workers are being exposed to the chemicals through inhalation, absorption through their skin and ingestion. There are multiple pots of organic solvents open. Smell is not a good indicator of ppm (concentration in the air – parts per million) of a solvent but there was a strong smell of solvents near to where the workers were applying this. It was particularly noticeable where the temperature was above 400 C. The personal protective equipment is inadequate and inappropriate. (…)

The extent to which use, handling and storage of raw materials and chemicals at the plant are consistent with national and international law and practice, the FLA Workplace Code of Conduct and benchmarks, and the PUMA Code of Conduct and other standards

The storage and handling of chemicals does not comply with international standards. Chemicals are incorrectly stored. Chemicals are poorly labelled. Not all Material Safety Data Sheets are available in Khmer or English. Workers have not been trained in the use of the chemicals. They are not using appropriate PPE and are unaware of the hazards. Despite repeated requests and searching the specific company’s web sites not all MSDS were available. Toluene is being used in the factory.

Better Factories Cambodia, An Industry and Compliance Review^{^[24]}

Occupational Safety and Health

The cluster covering Occupational Safety and Health (OSH) requirements is the largest cluster with eight different compliance points covering a total number of 60 compliance questions. Consistent with last year’s findings, many areas related to OSH continue to be a challenge for garment factories and are often the result of a lack of proper policies, procedures and division of roles and responsibilities on OSH. This suggestion is supported by the analysis in this report that links factories’ performance on legal OSH matters to the quality of their OSH management systems. This analysis suggest that the better factories do on their OSH management systems, the lower their non-compliance on legal OSH issues. This is not an issue that is typical just for Cambodia, but a general situation in the global supply chain for garment production. Non-compliance levels in the OSH cluster remain high and in general have gone up slightly in most of the compliance points. (…)

In total, BFC covers 68 questions that are related to OSH:

13 questions that relate to Emergency Preparedness;
7 questions that relate to Health Services and First Aid,
9 questions that relate to general Occupational Safety and Health,
6 questions that relate to OSH Management Systems,
7 questions on Welfare Facilities;
3 questions on Work Accommodation,
19 questions on for Worker Protection,
4 questions on Working Environment.

Management Systems and OSH Compliance

Better Work has in-depth experience in assessing occupational safety and health in hundreds of garment factories in different countries. This experience has taught us that factories struggle to sustainably improve their performance on occupational safety and health since often improvements made are ‘quick fixes’ that are not necessarily supported with proper management systems and training of those involved in ensuring safe and healthy workplaces. As a result, Better Work has started to look at the quality of management systems relating to OSH in factories. All Better Work programmes, including BFC, have introduced factories performance on management systems in 2015 as a way to link compliance with the quality of their systems. For factories to do well on occupational safety and health, they should have proper policies and procedures in place that are known and understood to all management and workers so that they can be applied every moment, every day. Although management systems are not legal requirements, there is a strong correlation between performance on OSH management systems and performance on legal OSH related issues. This confirms that proper OSH management systems uphold compliance. This section provides an analysis that underpins those findings. There are six OSH management system questions that BFC looks at during its assessment as an information question:

Does the employer adequately assign accountability to management for carrying out health and safety responsibilities?
Does the employer adequately communicate and implement OSH policies and procedures?
Does the employer adequately investigate, monitor and measure OSH issues to identify root causes and make necessary adjustments to prevent recurrence?
Is there an adequate emergency preparedness procedure?
Is there an adequate hazard/risk management and control procedure?
Is there an adequate accident investigation procedure?

CCHR, Health and Safety Policy^{^[25]}

This is the Health and Safety Policy (the “Policy”) of the Cambodian Center for Human Rights (“CCHR”). CCHR will implement this policy to ensure and maintain safe and health working conditions for CCHR employees.

Day to day responsibility for ensuring this policy is put into practice is delegated to the CCHR Finance and Administration Director.

All CCHR employees must:

Cooperate on health and safety matters;
Not interfere with anything provided to safeguard their health and safety;
Take reasonable care of their own health and safety; and
Report health and safety concerns to the CCHR Finance and Administration Director.

Merk, Country Study Cambodia: Labour Standards in the Garment Supply Chain^{^[26]}

g. Safe and healthy working conditions

A safe and hygienic working environment shall be provided, and best occupational health and safety practice shall be promoted, bearing in mind the prevailing knowledge of the industry and of any specific hazards. Appropriate attention shall be paid to occupational hazards specific to this branch of the industry and assure that a safe and hygienic work environment is provided for. Effective regulations shall be implemented to prevent accidents and minimize health risks as much as possible (following ILO Convention 155). Physical abuse, threats of physical abuse, unusual punishments or discipline, sexual and other harassment, and intimidation by the employer are strictly prohibited. Occupational health and safety are major issues in the Cambodian garment industry, including unsafe conditions, mass fainting incidents and collapsing factories

Laws and regulations

All establishments and workplaces must maintain standards of hygiene and sanitation necessary for the health of workers and must guarantee the safety of workers (Art. 230 Labour Law).
Art. 248 of the Labour Law defines work related to accidents (accident or illness which happens on the job, during work hours or while travelling to or from work).
All employers are responsible for work-related injuries (Labour Law: Art. 249). Workers who usually work alone are not responsible for work-related injuries incurred by fellow workers who occasionally work with them (Labour Law: Art. 251).
The Labour Law provides for a compulsory insurance system for work-related accidents to be managed under the NSSF (Labour Law: Art. 256).
Labour Law-issued health and safety regulations do not apply to workplaces run by family members if the work does not involve the use of a boiler, mechanical or electric motors, or an industry that is not classified as dangerous or unsanitary (Labour Law: Art. 228).

Stakeholders’ opinions and analyses of implementation

There are many occupational health and safety concerns in Cambodia’s garment industry. It is a topic that requires more attention from employers and employees alike. Many workplaces are hot, noisy, and poorly lit. There is often little ventilation, the uncontrolled and undeclared use of chemicals, excessive dust, as well as a lack of preventive education and little access to personal protective equipment.

A report commissioned by Better Work and IFC on fire safety, building and worker safety risks, identified a number of significant dangers, including: Unprotected fire hazard materials and equipment, fire hazard activities, inadequate automatic fire suppression systems, inappropriate means of escape, improperly maintained electrical installations, lack of emergency awareness and training, ineffective firefighting equipment, substandard building construction and design, and poor building maintenance.

Three safety hazards have been highlighted over the past few years:

Factory collapses: In 2013, the Wing Star factory, a supplier of Asics, partly collapsed and killed two workers and injured several others. The incident raised concerns about building standards in the sector, especially since a similar accident had happened 17 months earlier, where two workers were killed and seven were seriously injured.
Mass fainting: Malnutrition has been regarded as one of the possible causes behind mass fainting, together with poor working conditions (for instance, excessive overtime, stress, heat, inadequate ventilation). The mass fainting of workers has become a regular occurrence in garment and shoe factories in Cambodia. Incidences range from dozens to several hundred workers at a time. The incidents have taken place at numerous suppliers, including those supplying Puma, Adidas, H&M and Polo Ralph Lauren. Research suggests there is no single cause for these incidents, but that a number of potential factors play a role, including overheated workplaces, under-nutrition, and the lack of access to quality food. A report by the CLEC and LBL states that fainting can be attributed to the insufficient diets of many Cambodians; in many cases factory workers consume only some 1600 calories per day (at least 500 less than the daily recommendation). The study found that roughly one-third of all workers, who spend, on average, US$1.50 on food per day, were medically malnourished. Body Mass Index figures indicated that 33% of Cambodian workers are medically underweight and at risk, and 25% seriously so (these kinds of figures have used to diagnose anorexia in the UK).71 Another research report noted that 67% of the factories have linked poor nutrition to lower productivity. The study also found that many manufacturers are willing to provide meals as long as the associated expenses do not exceed 2,000 riel (€0.36).72
Safe transport: Another concern is the often-unsafe forms of transport that workers are forced to depend on when commuting to and from work, which includes flatbed trucks and minivans, which are annually involved in a high number of traffic accidents. In 2014, for instance, 73 garment workers died in crashes during their commutes, an almost 10% increase over the 67 fatalities recorded in 2013.73 In 2015, the number of casualties rose dramatically to 130 fatalities and 7,000 injuries.74 Cambodian law considers these accidents to be work-related.

US Department of State, Cambodia Human Rights Report^{^[27]}

e. Acceptable Conditions of Work

An April 2017 survey conducted by the BWTUC [The Building and Wood Workers Trade Union Confederation (BWTUC)] estimated there were 200,000 citizens working in the construction industry; 89 percent of 1,010 respondents did not have contracts, most never received bonuses or severance pay, and only 9 percent were enrolled with the National Social Security Fund (NSSF). Work-related injuries and health problems were common. Most large garment factories producing for markets in developed countries met relatively high health and safety standards as conditions of their contracts with buyers. Working conditions in small-scale factories and cottage industries were poor and often failed to meet international standards. The Department of Occupational Safety and Health (OSH) reported 2,533 work-related injuries in the first six months of the year, up slightly from 2017; of these injuries, 444 were the result of road accidents, since employers often transported garment workers to and from work in the back of unsafe open-bed trucks.

Mass fainting remained a problem. The NSSF reported 1,350 workers fainted in 13 factories in the first six months of the year, up from 415 workers fainting in eight factories in the same period in 2017. There were no reports of serious injuries due to fainting. Observers reported excessive overtime, poor health, insufficient sleep, poor ventilation, lack of nutrition, pesticide in nearby rice paddies, and toxic fumes from the production process all contributed to mass fainting.

The BFC reported that complying with OSH standards was a growing challenge in the garment export sector largely due to improper company policies, procedures, and poorly defined supervisory roles and responsibilities. The BFC reported increased noncompliance in every OSH variable measured, including exposure to chemicals and hazardous substances, emergency preparedness, OSH management systems, welfare facilities, worker environment, worker protection, and worker accommodations.

Hsu et al, Occupational Safety and Health for Cambodian Entertainment Sector^{^[28]}

Cambodia has developed booming textile, garment, tourism, and entertainment service industries since the mid-1990s. The 2007 global financial crisis pushed many garment workers, who lost their jobs, into the entertainment sector. Entertainment workers are typically engaged informally by their employers and are subjected to long working hours, sexual harassment, and violence. Many who sell beverages are forced into excessive alcohol consumption as part of their work. Many are also expected by their employers and clients to provide sexual services. To address unsafe and unhealthy working conditions for these workers, an innovative occupational safety and health regulation was adopted in 2014. (…)

In Cambodia, these sector workers also include those engaged by the producers and sellers of beverages, such as hostesses, singers, waitresses, bartenders, and others. This category of workers, however, also includes workers who exchange sex for money.3 This officially accepted term in Cambodia was coined partly in order to develop HIV programs for sex workers, given that the sex trade is illegal in the country. The term has enabled the health ministry, as well as a range of international and national civil society organizations, to conduct on-site HIV prevention, care, support, and treatment services mostly for those who engaged in commercial sex prior to 2007. (…)

The Cambodian Food Service Workers Federation (CFSWF) is a trade union established in December 2007 and registered with the Ministry of Labour and Vocational Training. It is a member of the Cambodian Labour Confederation, one of the largest Cambodian labor union confederations with a membership of more than 60,000. With the facilitation of the ILO, based on findings of the ILO study, the CFSWF developed workplace programs and began working with the beer promotion workers, on protecting their rights and improving their work conditions with the beer companies. CFSWF has accepted many women entertainment workers in restaurants, pubs, karaoke clubs, and other entertainment venues as members. CFSWF empowered them by organizing them into workers unions and encouraged them to participate in social work and promoted them to be women union leaders. CFSWF trained them on issues relating to gender, sexual harassment, workplace violence, OSH, and workers’ rights, and provided them with legal assistance when they faced sexual harassment or violations of workers’ rights at work.

This marked a significant step for entertainment workers. Membership with the Food and Service Workers Federation enabled entertainment workers to negotiate a labor agreement to protect their OSH rights in accordance with the country’s labor laws. Once entertainment workers found a collective voice, through trade union membership, they were in a position to get the attention of entertainment-sector employers. This led to a process of negotiation and an agreement that a national policy on work conditions and OSH for workers in the entertainment sector was needed. (…)

The Minister of Labour supported the proposed regulation and signed it into law as “Ministerial Regulation on Working Conditions, Occupational Safety and Health Rules of Entertainment Service Enterprises, Establishment and Companies” on 20 August 2014. (…)

The Minister of Labour and Vocational Training indicated that initially, the government will encourage voluntary compliance with the regulation on the part of “all the people, especially the entertainment establishment owners.” However, if there is persistent failure to comply, then penalties will be imposed in accordance with the regulation. An action plan to train key stakeholders on the regulation and on ways to deal with challenges faced by the sector in its implementation has been developed by the Ministry of Labour and Vocational Training. The Ministry, with the external support of the ILO and funding from the ILO and the Global Fund to fight AIDS, TB, and malaria, began disseminating this regulation nationally since the beginning of 2015 to inform and familiarize the industry, its customers, and labor inspectors. Meanwhile, the minister has made provisions to allocate from his own budget, although limited, to facilitate monitoring and implementation. In addition, a regulation implementation guideline has been developed jointly with the Ministry, the employers, and workers trade unions.

As expressed by the Regional Director for Asia and the Pacific of the ILO, “Cambodia’s effort to protect entertainment workers is “ground breaking,” as it dares to reach into a sector where most governments fail to provide adequate protection. Entertainment workers in Cambodia, as well as elsewhere in Asia and the Pacific region, face similar labor-related violations which are in violation of workers’ rights under the International Labour Conventions. These Conventions apply to all workers, including those in informal settings. Cambodia, in adopting this OSH regulation, has demonstrated an innovative approach and leadership from the labor sector, to protect the OSH of entertainment workers. This is a transformative approach to HIV prevention while strengthening labor rights and OSH among these workers.

Questions

Why do you think leading companies have advanced faster in dealing with H&S issues compared with other labour rights (e.g. discrimination, freedom of association)?
Why do industrial disasters where so many workers are killed or injured continue to happen in the garment industry?
What type of measures does the government adopt to improve H&S protections?
Are trade unions or civil society groups effective in promoting H&S? What roles do they play and are they collaborating?
Why did Cambodia not ratify the ILO Conventions on H&S? How would ratification improve the situation for workers?

Introduction

Exploitation of migrant workers can go as far as severe mistreatment, human trafficking and modern slavery (chapter 16) and is taking place in various industries (e.g. construction, domestic workers). The UN Convention on Migrant Workers remains the least ratified among the UN core human rights treaties. In law and in practice migrant workers often receive insufficient protection and are recognized as a vulnerable group at high risk of exploitation. Therefore, leading companies have recently engaged in large multistakeholder initiatives (chapter 5), which develop comprehensive packages of measures and specific principles such as the ‘employer pays principle’. Extraterritorial laws combatting human trafficking and forced labour (chapter 4) further support efforts throughout the supply chain to improve the protection of migrant workers. Trade unions (chapter 19) have not always been successful in addressing the rights of this group of workers, while domestic workers – who are predominantly women (chapter 23) – face difficulty in becoming unionized due to their workplace not being the factory floor. According to the UNGPs and other soft law instruments (chapter 2), companies are expected to undertake their human rights due diligence in a participatory manner (chapter 14) and with special attention to vulnerable groups (chapter 8-13) – such as indigenous people (chapter 22), persons with disabilities (chapter 24) and children (chapter 15). Cooperation between states – the sending, transit and receiving countries – is indispensable for creating an enabling environment (chapter 1 and 2) for more responsible business conduct throughout the global supply chains. Recruitment agencies, which have for decades been covered by ILO Conventions, pose particular challenges and require specific attention from companies that rely on their services. Understanding the root causes of migration – from poverty to climate change (chapter 29) – and employing new technologies is essential for finding innovative ways to protect migrant workers.

According to reports from the Ministry of Labour and Vocational Training (MoLVT), 1.2 million Cambodians are working overseas, mainly in Thailand, Malaysia, Singapore, Hong Kong, South Korea, Japan, and Saudia Arabia. Annually they provide remittances of around $2 billion to their families. There are several reasons for migrating to work overseas such as lack of local jobs, higher wages, and following friends or relatives. The main sectors in which Cambodian migrants work include the construction and service sectors. Cambodia has also been sending Khmer labourers to work abroad through bilateral agreements as well as Memorandums of Understanding (MoUs) with receiving states. Some MoUs have been revoked due to grave violations of human rights and abuse of Cambodian migrant workers. Several stakeholders can support Cambodian migrant workers to facilitate their access to information, education, access to justice and social protection.

Main Aspects

Migration (documented migration or irregular migration)
Causes of migration
Migrants and refugees (separate legal frameworks)
Human trafficking and labor exploitation
Unfair competition
Benefits for countries of origin and countries of employment
Principle of equality of treatment (remuneration, conditions of work, terms of employment, medical care, children education)
Right to property
Right to be informed (of conditions applicable)
Employer pays principle (no recruitment fees on workers)
Consultation and cooperation among states regarding migration (and ensuring sound, equitable, humane and lawful conditions of migration)
Recruitment agencies (temporary work agencies)
Remediation mechanisms
Reporting laws (corporate transparency)
Digital tools in supply chains (form of worker empowerment)
Sustainable development and migration
Climate change and migration

Background

ILO, Global Estimates on International Migrant Workers^{^[1]}

Global estimates of the stock of international migrants and migrant workers, 2017

Men constitute a larger proportion of migrant workers. In 2017, the stock of male migrant workers was estimated to be 95.7 million, while the corresponding estimate for female migrant workers was 68.1 million, or 58.4 and 41.6 per cent, respectively, of all migrant workers. (…) The higher proportion of men among migrant workers may also be explained by other factors, including the higher likelihood of women to migrate for reasons other than employment (for instance, for family reunification), as well as by possible discrimination against women that reduces their employment opportunities in destination countries. Societal stigmatization, the discriminatory impacts of policies and legislation and violence and harassment not only undermine women’s access to decent work but can also result in low pay, the absence of equal pay and the undervaluation of female-dominated sectors. (…)

When disaggregating migrant workers by age group, it is found that while youth workers (aged 15-24) and older workers (aged 65 plus) constitute 8.3 per cent and 5.2 per cent, respectively, of migrant workers, prime-age adults constitute 86.5 per cent. This age composition holds for male and female migrant workers alike. The fact that the overwhelming majority of migrant workers consist of prime-age adults suggests that some countries of origin are losing the most productive part of their workforce, which could have a negative impact on their economic growth. On the other hand, destination countries benefit from receiving prime-age workers as they are increasingly faced with demographic pressures. It is important to note, however, that the emigration of prime-age individuals may provide a source of remittances for countries of origin. (…)

Of the 164 million migrant workers worldwide, 111.2 million (67.9 per cent) are employed in high-income countries, 30.5 million (18.6 per cent) in upper middle-income countries, 16.6 million (10.1 per cent) in lower middle-income countries and 5.6 million (3.4 per cent) in low-income countries.

UN, Global Compact for Migration^{^[2]}

4. Refugees and migrants are entitled to the same universal human rights and fundamental freedoms, which must be respected, protected and fulfilled at all times. However, migrants and refugees are distinct groups governed by separate legal frameworks. Only refugees are entitled to the specific international protection defined by international refugee law. This Global Compact refers to migrants and presents a cooperative framework addressing migration in all its dimensions.

7. This Global Compact presents a non-legally binding, cooperative framework that builds on the commitments agreed upon by Member States in the New York Declaration for Refugees and Migrants. It fosters international cooperation among all relevant actors on migration, acknowledging that no State can address migration alone, and upholds the sovereignty of States and their obligations under international law.

8. This Global Compact expresses our collective commitment to improving cooperation on international migration. Migration has been part of the human experience throughout history, and we recognize that it is a source of prosperity, innovation and sustainable development in our globalized world, and that these positive impacts can be optimized by improving migration governance. The majority of migrants around the world today travel, live and work in a safe, orderly and regular manner. Nonetheless, migration undeniably affects our countries, communities, migrants and their families in very different and sometimes unpredictable ways.

15. We agree that this Global Compact is based on a set of cross-cutting and interdependent guiding principles:

(a) People-centred. The Global Compact carries a strong human dimension, inherent to the migration experience itself. It promotes the well-being of migrants and the members of communities in countries of origin, transit and destination. As a result, the Global Compact places individuals at its core;

(b) International cooperation. (…);

(c) National sovereignty. The Global Compact reaffirms the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law. Within their sovereign jurisdiction, States may distinguish between regular and irregular migration status, including as they determine their legislative and policy measures for the implementation of the Global Compact, taking into account different national realities, policies, priorities and requirements for entry, residence and work, in accordance with international law;

(d) Rule of law and due process. (…);

(e) Sustainable development. The Global Compact is rooted in the 2030 Agenda for Sustainable Development, and builds upon its recognition that migration is a multidimensional reality of major relevance for the sustainable development of countries of origin, transit and destination, which requires coherent and comprehensive responses. Migration contributes to positive development outcomes and to realizing the goals of the 2030 Agenda for Sustainable Development, especially when it is properly managed. The Global Compact aims to leverage the potential of migration for the achievement of all Sustainable Development Goals, as well as the impact this achievement will have on migration in the future;

(f) Human rights. The Global Compact is based on international human rights law and upholds the principles of non-regression and non-discrimination. By implementing the Global Compact, we ensure effective respect for and protection and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle. We also reaffirm the commitment to eliminate all forms of discrimination, including racism, xenophobia and intolerance, against migrants and their families;

(g) Gender-responsive. The Global Compact ensures that the human rights of women, men, girls and boys are respected at all stages of migration, that their specific needs are properly understood and addressed and that they are empowered as agents of change. It mainstreams a gender perspective and promotes gender equality and the empowerment of all women and girls, recognizing their independence, agency and leadership in order to move away from addressing migrant women primarily through a lens of victimhood;

(h) Child-sensitive. The Global Compact promotes existing international legal obligations in relation to the rights of the child, and upholds the principle of the best interests of the child at all times, as a primary consideration in all situations concerning children in the context of international migration, including unaccompanied and separated children;

(i) Whole-of-government approach. The Global Compact considers that migration is a multidimensional reality that cannot be addressed by one government policy sector alone. To develop and implement effective migration policies and practices, a whole-of-government approach is needed to ensure horizontal and vertical policy coherence across all sectors and levels of government;

Objectives for safe, orderly and regular migration

1. Collect and utilize accurate and disaggregated data as a basis for evidence-based policies

2. Minimize the adverse drivers and structural factors that compel people to leave their country of origin

3. Provide accurate and timely information at all stages of migration

4. Ensure that all migrants have proof of legal identity and adequate documentation

5. Enhance availability and flexibility of pathways for regular migration

6. Facilitate fair and ethical recruitment and safeguard conditions that ensure decent work

7. Address and reduce vulnerabilities in migration

8. Save lives and establish coordinated international efforts on missing migrants

9. Strengthen the transnational response to smuggling of migrants

10. Prevent, combat and eradicate trafficking in persons in the context of international migration

11. Manage borders in an integrated, secure and coordinated manner

12. Strengthen certainty and predictability in migration procedures for appropriate screening, assessment and referral

13. Use migration detention only as a measure of last resort and work towards alternatives

14. Enhance consular protection, assistance and cooperation throughout the migration cycle

15. Provide access to basic services for migrants

16. Empower migrants and societies to realize full inclusion and social cohesion

17. Eliminate all forms of discrimination and promote evidence-based public discourse to shape perceptions of migration

18. Invest in skills development and facilitate mutual recognition of skills, qualifications and competences

19. Create conditions for migrants and diasporas to fully contribute to sustainable development in all countries

20. Promote faster, safer and cheaper transfer of remittances and foster financial inclusion of migrants

21. Cooperate in facilitating safe and dignified return and readmission, as well as sustainable reintegration

22. Establish mechanisms for the portability of social security entitlements and earned benefits

23. Strengthen international cooperation and global partnerships for safe, orderly and regular migration

Harsdorff, Towards an ILO Approach to Climate Change Adaptation^{^[3]}

Climate change is already occurring and is having increasingly large impacts on enterprises and workers, and on economic and social development. In the longer-term, the increase in average temperatures, the alteration of rainfall patterns and rises in sea level will be the most significant effects. In the short-to-medium term, the impacts are mostly caused by erratic weather patterns and extreme events such as storms, floods and droughts. In most regions these impacts on the world of work are negative, disrupting businesses, destroying workplaces and undermining income opportunities. In poor countries and communities the impacts on income generation, employment and social security can be particularly devastating. Those who have done least to cause the problem stand to lose the most.

To prevent unmanageable and potentially uncontrollable climate changes, the causes of such change needs to be tackled and measures to reduce further greenhouse gas emissions are needed urgently. In parallel, countries, communities and enterprises have to adapt to the climate change that is already underway as a result of emissions since the industrial revolution, in order to try to prevent losses and exposure.

The United Nations Framework Convention on Climate Change (UNFCCC) and the Intergovernmental Panel on Climate Change (IPCC) have produced authoritative definitions of adaptation. The IPCC has also concluded, in its 4th Assessment Report, that adaptation is intricately linked to sustainable development. Based on these definitions and the link to sustainable development the ILO interprets its role in climate change adaptation as: “Reducing vulnerability of workers, enterprises and governments to the effects of climate change and enhancing capacity at individual and society level to respond to, prepare for and adapt to climate change in ways which enhance development and social inclusion”. This emphasizes the view that reducing vulnerability must play a central role in adaptation efforts and also that the large investments needed to adapt to climate change should be seized as an opportunity to build a more sustainable society, rather than as defensive expenditure designed to reduce losses.

Relevant ILO programmes and approaches include (…) Displacement and migration: There is increasing evidence of climate change becoming an additional driver of migration, both internal and across borders. The latter is likely to become more prominent as an adaptation option and ILO Conventions offer guidelines for the migration process. (…)

“While migration can be a manifestation of acute vulnerability, it can also represent an adaptation strategy since it can: help to reduce risk to lives, livelihoods and ecosystems; contribute to income diversification; and enhance overall capacity of households and communities to cope with the adverse effects of environmental and climate change. Migration has been used for millenniums as an adaptation strategy and is likely to be of growing importance in the future.”

The ILO has a specific mandate with regard to international migration and is promoting a rights-based approach. While the Office would need to work closely with other agencies and organizations to address some of the likely challenges to arise from climate related migration and displacement, it should make sure that standards are at the centre of the debate and action. Indeed, beyond the protection of the rights of migrant workers contained in Conventions 97 and 143, these two instruments provide for sound and sustainable migration policies based on cooperation between states (countries of origin and countries of destination), social dialogue in the formulation and implementation of migration policies and the promotion of integration policies. (…)

Instruments

UN, Convention on the Rights of Migrant Workers^{^[4]}

Preamble

Taking into account the fact that migration is often the cause of serious problems for the members of the families of migrant workers as well as for the workers themselves, in particular because of the scattering of the family,

Bearing in mind that the human problems involved in migration are even more serious in the case of irregular migration and convinced therefore that appropriate action should be encouraged in order to prevent and eliminate clandestine movements and trafficking in migrant workers, while at the same time assuring the protection of their fundamental human rights,

Considering that workers who are non-documented or in an irregular situation are frequently employed under less favourable conditions of work than other workers and that certain employers find this an inducement to seek such labour in order to reap the benefits of unfair competition,

Article 25

1. Migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and:

(a) Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by these terms;

(b) Other terms of employment, that is to say, minimum age of employment, restriction on home work and any other matters which, according to national law and practice, are considered a term of employment.

2. It shall not be lawful to derogate in private contracts of employment from the principle of equality of treatment referred to in paragraph 1 of the present article.

3. States Parties shall take all appropriate measures to ensure that migrant workers are not deprived of any rights derived from this principle by reason of any irregularity in their stay or employment. In particular, employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of such irregularity.

Article 28

Migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.

Article 30

Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of either parent or by reason of the irregularity of the child’s stay in the State of employment.

Article 33

1. Migrant workers and members of their families shall have the right to be informed by the State of origin, the State of employment or the State of transit as the case may be concerning:

(a) Their rights arising out of the present Convention;

(b) The conditions of their admission, their rights and obligations under the law and practice of the State concerned and such other matters as will enable them to comply with administrative or other formalities in that State. (…)

Article 35

Nothing in the present part of the Convention shall be interpreted as implying the regularization of the situation of migrant workers or members of their families who are non-documented or in an irregular situation or any right to such regularization of their situation (…)

Part IV: Other Rights of Migrant Workers and Members of their Families who are Documented or in a Regular Situation

Article 37

Before their departure, or at the latest at the time of their admission to the State of employment, migrant workers and members of their families shall have the right to be fully informed by the State of origin or the State of employment, as appropriate, of all conditions applicable to their admission and particularly those concerning their stay and the remunerated activities in which they may engage as well as of the requirements they must satisfy in the State of employment and the authority to which they must address themselves for any modification of those conditions.

Part VI: Promotion of sound, equitable, humane and lawful conditions in connection with international migration of workers and members of their families

Article 64

1. (…) the States Parties concerned shall as appropriate consult and co-operate with a view to promoting sound, equitable and humane conditions in connection with international migration of workers and members of their families.

2. In this respect, due regard shall be paid not only to labour needs and resources, but also to the social, economic, cultural and other needs of migrant workers and members of their families involved, as well as to the consequences of such migration for the communities concerned.

Article 68

1. States Parties, including States of transit, shall collaborate with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation. The measures to be taken to this end within the jurisdiction of each State concerned shall include:

(a) Appropriate measures against the dissemination of misleading information relating to emigration and immigration;

(b) Measures to detect and eradicate illegal or clandestine movements of migrant workers and members of their families and to impose effective sanctions on persons, groups or entities which organize, operate or assist in organizing or operating such movements;

(c) Measures to impose effective sanctions on persons, groups or entities which use violence, threats or intimidation against migrant workers or members of their families in an irregular situation.

2. States of employment shall take all adequate and effective measures to eliminate employment in their territory of migrant workers in an irregular situation, including, whenever appropriate, sanctions on employers of such workers. The rights of migrant workers vis-à-vis their employer arising from employment shall not be impaired by these measures.

ILO, Migration for Employment Convention^{^[5]}

Article 3

1. Each Member for which this Convention is in force undertakes that it will, so far as national laws and regulations permit, take all appropriate steps against misleading propaganda relating to emigration and immigration. (…)

Article 6

1. Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters:

(a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities–

(i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women’s work and the work of young persons;

(ii) membership of trade unions and enjoyment of the benefits of collective bargaining;

(iii) accommodation;

(b) social security (that is to say, legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:

(i) there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;

(ii) national laws or regulations of immigration countries may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension;

(d) legal proceedings relating to the matters referred to in this Convention.

IOM, Migration and the 2030 Agenda: A Guide for Practitioners^{^[6]}

Goal 10: Reduce inequality within and among countries

Target 10.7: Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies.

What does target 10.7 mean?

Orderly migration: There is no definition of this term within the 2030 Agenda. This document will use IOM’s definition of orderly migration: “the movement of a person from his or her usual place of residence to a new place of residence, in keeping with the laws and regulations governing exit of the country of origin and travel, transit and entry into the host country.” This underlines a State’s right to regulate entry as a basis for being able to ensure migrants’ proper treatment, granting rights, enforcing law and managing relationships with host communities.

Regular migration: IOM defines regular migration as “migration that occurs through recognized, authorized channels.” The regularity of migration does not solely refer to the method used to cross a country’s border, as migrants can enter a country through regular channels, but find themselves in an irregular situation after a period of time.

Safe migration: There is no common definition for the concept of safe migration. A migrant can be in an unsafe situation while or after having migrated through regular channels; conversely, a migrant can be in a situation that is both safe and irregular. A migrant’s situation can change from safety to unsafety throughout the various phases of their migratory process, and thus the definition should encompass all stages of the process, including at the country of origin, transit, country of first asylum and country of destination. Further, safe migration should also be considered for internal migration, and also for those left behind who do not finish their intended journey. Safe migration is not a static concept and is one that primarily is concerning the well-being of and reduction of risk for migrants. The needs of different categories of migrants, as well as factors which could make any migrant vulnerable, should also be considered.

ILO, General Principles and Operational Guidelines for Fair Recruitment^{^[7]}

Scope

These principles and guidelines are intended to cover the recruitment of all workers, including migrant workers, whether directly by employers or through intermediaries. They apply to recruitment within or across national borders, as well as to recruitment through temporary work agencies, and cover all sectors of the economy. Implementation of these principles and guidelines at the national level should occur after consultation between the social partners and the government.

Responsibilities of enterprises and public employment services

15. Enterprises and public employment services should respect human rights when recruiting workers, including through human rights due diligence assessments of recruitment procedures, and should address adverse human rights impacts with which they are involved.

15.1 All enterprises and public employment services should respect human rights in their recruitment processes wherever they operate, independently of the abilities and/or willingness of States to fulfil their human rights obligations.

15.2 They should undertake due diligence regarding their recruitment activities.

15.3 When they are not practising direct recruitment, enterprises should engage workers only through compliant labour recruiters, including public employment services and private recruitment agencies. Where it is not feasible to verify directly the conduct of all the parties involved in recruitment, there should, at a minimum, be a contractual obligation requiring labour recruiters to work with third parties operating in accordance with legal requirements, and these principles and guidelines. The enterprise should have in place a procedure for evaluating other parties involved in the recruitment process.

15.4. Enterprises and public employment services should respect internationally recognized human rights, including those expressed in international labour standards, in particular the right to freedom of association and collective bargaining, and prevention and elimination of forced labour, child labour and discrimination in respect of employment and occupation, in the recruitment process.

15.5. Enterprises and public employment services should not retaliate against or blacklist workers, in particular those who report recruitment abuses or fraudulent recruitment practices anywhere along their supply chain, and should provide special protections for whistle-blowers pending the investigation or resolution of a grievance or dispute.

16. Enterprises and public employment services should undertake recruitment to meet established labour market needs and never as a means to displace or diminish an existing workforce, lower wages or working conditions, or otherwise undermine decent work.

17. No recruitment fees or related costs should be charged to, or otherwise borne by, recruited workers and jobseekers.

17.1. Workers and jobseekers should not be charged any fees or related recruitment costs by an enterprise, its business partners or public employment services for recruitment or placement, nor should workers have to pay for additional costs related to recruitment.

17.2. Enterprises and public employment services should communicate this policy externally via guidelines and other means including contracts to all prospective and current business partners and relevant stakeholders. Enterprises should determine whether private employment agencies and other labour recruiters charge recruitment fees to workers or impose other related costs on them, and should not engage workers through agencies and other labour recruiters known to charge recruitment fees or related costs to workers.

18. Enterprises and public employment services should not retain passports, contracts or other identity documents of workers.

18.1. Enterprises and public employment services should not interfere with workers’ free and complete access to their own passports, identity documents and residency papers, including their employment contracts, paying careful attention to the situation of migrant workers.

IHRB, Dhaka Principles for Migration with Dignity^{^[8]}

The Dhaka Principles provide a roadmap that traces a migrant worker from recruitment, through employment, to the end of contract. They provide key principles that employers and migrant recruiters should respect at each stage in the process to ensure migration with dignity.

Core Principle A: All workers are treated equally and without discrimination

Migrant workers should be treated no less favourably than other workers performing the same or similar work. Moreover, migrant workers should be protected from any discrimination that would constitute a violation of human rights.

Core Principle B: All workers enjoy the protection of employment law

Migrant workers should have a legally recognised employment relationship with an identifiable and legitimate employer in the country where the work is performed.

Principle 1: No fees are charged to migrant workers

The employer should bear the full costs of recruitment and placement. Migrant workers are not charged any fees for recruitment or placement.

Principle 2: All migrant worker contracts are clear and transparent

Migrant workers should be provided with written contracts in a language each worker understands, with all terms and conditions explained clearly, and the worker’s assent obtained without coercion.

Principle 3: Policies and procedures are inclusive

Migrant workers’ rights should be explicitly referred to in employer and migrant recruiter public human rights policy statements, relevant operational policies and procedures addressing human rights responsibilities.

Principle 4: No migrant workers’ passports or identity documents are retained

Migrant workers should have free and complete access to their own passport, identity documents, and residency papers, and enjoy freedom of movement.

Principle 5: Wages are paid regularly, directly and on time

Migrant workers should be paid what they are due on time, regularly and directly.

Principle 6: The right to worker representation is respected

Migrant workers should have the same rights to join and form trade unions and to bargain collectively as other workers.

Principle 7: Working conditions are safe and decent

Migrant workers should enjoy safe and decent conditions of work, free from harassment, any form of intimidation or inhuman treatment. They should receive adequate health and safety provision and training in relevant languages.

Principle 8: Living conditions are safe and decent

Migrant workers should enjoy safe and hygienic living conditions, and safe transport between the workplace and their accommodation. Migrant workers should not be denied freedom of movement, or confined to their living quarters.

Principle 9: Access to remedy is provided

Migrant workers should have access to judicial remedy and to credible grievance mechanisms, without fear of recrimination or dismissal.

Principle 10: Freedom to change employment is respected, and safe, timely return is guaranteed

Migrant workers should be guaranteed provision for return home on contract completion and in exceptional situations. They should not, however, be prevented from seeking or changing employment in the host country on completion of first contract or after two years, whichever is less.

IHRB, Six Steps to Responsible Recruitment^{^[9]}

Employer Pays Principle: No worker should pay for a job – the costs of recruitment should be borne not by the worker but by the employer

Step 2. Assess the risks of workers being charged recruitment-related fees

(…)

Draw on Expertise:

Assess relevant data – there may be relevant information available about worker retention, job suitability and performance that is linked to recruitment processes and the risks of worker-paid fees.
Ascertain what information exists within suppliers / business relationships (e.g. are recruitment processes included in existing audits?).
Through discussion with suppliers, workers, labour brokers, unions and NGOs, assess the average level and types of fees currently being paid by workers to secure their job, and ascertain when these fees are being paid and to whom.

Consult migrant workers and their legitimate representatives:

Understand migrant workers’ views about how fees and other impacts via the recruitment process affect them.
Demonstrate you take the concerns of migrant workers seriously. This helps build mutual understanding and creates opportunities to work together to identify potential impacts and suitable ways to address them.

Understand your operating context:

Identify countries/locations of operation with laws/regulations on migrant worker recruitment fees that are absent, weak or unenforced or which actively conflict with the EPP.
Make a country-by-country inventory of the recruitment process and legally required fees.
Develop an indicative recruitment pricing structure of what you believe to be the genuine costs of recruitment in each operating location.

Review your business relationships:

Assess the risks of your company practices contributing to recruitment fees being charged by a business relationship.
Assess the risks of being directly linked to the charging of a migrant worker recruitment fee in connection with company operations, products or services – including via a relationship one or more step removed from the company, such as deeper within the supply chain.
Establish robust screening and selection processes for key business relationships, such as suppliers and sending and receiving country recruitment and employment agents, including assessing their ability to comply with the policy and whether additional oversight may be required.

Step 3. Integrate and act on the risk assessments

(…)

Create and use leverage with business relationships:

In each situation, think about the many forms leverage can take, whether via traditional commercial leverage, leverage through collective action with business partners and peers, or leverage via bilateral or multi-stakeholder engagement and collaboration with governments, civil society and other stakeholders.
Initial steps to identify and build leverage could include:
Build into new supplier agreements the expectation for them to prevent, mitigate and remediate recruitment-related impacts on migrant workers.
Establish a clear labour cost structure with suppliers and / or recruitment and employment agents.
Identify key personnel at suppliers responsible for hiring decisions and gauge their willingness and ability to align with the EPP policy.
Where possible, reduce the number of recruitment agencies with which your supplier engages to enable more effective monitoring and targeting of training resources.
Consider carefully whether to terminate a relationship where fees and other impacts on migrant workers caused by the third party. It may be beneficial to continue to work within the business relationship to remediate the impacts and build their capacity to meet the Employer Pays Principle in practice.

Step 6: Remedy recruitment-related impacts early and directly

Establish or participate in remedy processes:

Develop and adopt appropriate and transparent procedures for receiving, escalating and resolving worker grievances, including ensuring confidential channels of communication for migrant workers to raise grievances regarding the recruitment process.
Remedy means restoring migrant workers adversely impacted during the recruitment lifecycle to the situation they would have been in had the impact not occurred. Where that is no longer possible, compensation or other forms of remedy may be used to try to make amends. This is distinct from corrective action and other procedures focused on preventing recurrence, though this is also important.
Ensure any grievance mechanism you develop or participate in satisfies the effectiveness criteria of the UN Guiding Principles on Business & Human Rights, that they are: legitimate; accessible; predictable; equitable; transparent; rights-compatible; a source of continuous learning; and, based on engagement and dialogue.
Develop or review any mechanism in consultation with workers and their legitimate representatives, as well as staff, departments and other internal stakeholders to understand any cultural differences and build their support and buy in.

Know the Chain, Findings from Three Sectors^{^[10]}

Good Practice Examples: Remedy for migrant workers

Adidas discloses a summary of the human rights complaints it has received and details on the outcomes of remediation processes, which include several cases of remedy for migrant workers. For example, in 2013 and 2014, Adidas worked with its suppliers in Taiwan to remedy poor working conditions of migrant labor by eliminating wage deductions made by employment agencies, returning passports and bank books, and relocating migrant workers to safer and higher-quality dormitories.

Coca-Cola, Modern Slavery Statement^{^[11]}

Policy and Due Diligence Enhancements

Recognizing that migrant workers are particularly vulnerable to exploitation and human trafficking, in 2014, the Company reviewed policies and due diligence activities with the aim of better protecting such workers throughout the supply chain. The Company publicly committed to three principles related to the recruitment and employment of migrant workers:

Employment terms are represented in a truthful, clear manner and m the language understood by workers prior to employment;
Worker does not pay recruitment, placement or transportation fees; and
Worker has access to personal identity documents.

These principles, along with the overall prohibition of forced labor, create a framework for responsible and transparent recruitment and employment practices. These practices were built into the Company’s audit protocol at the beginning of 2015 and conducted auditor training sessions around the world to familiarize third party auditors with the new expectations. The Company continues to do refresh auditor training as needed, including in Africa, Hong Kong and Latin America in 2016.

Centre for Sport and Human Rights, The Mega-Sporting Event Lifecycle^{^[12]}

Mega-sporting events (MSE) are the pinnacle of global sport, but cannot stand apart from their very significant social impacts – both positive and negative. Sporting events can enhance freedoms and celebrate human dignity, but can also amplify discrimination and abuse. It is critical to ensure that the world of sport is in full alignment with the UN Guiding Principles on Business and Human Rights (UN Guiding Principles) and other international human rights and related instruments, principles, and standards.

All organisations, including those in the world of sport, are responsible for respecting human rights. Through preventing potential negative human rights impacts linked to major events, and providing adequate remedies for abuses that do occur, all organisations involved in delivering a mega-sporting event can better harness sport’s potential for good.

The lifecycle for a mega-sporting event also serves as a microcosm for the whole range of business and human rights issues. With the large amount of public investment associated with these events, and their impacts on local communities, mega-sporting events should be delivered to exemplary standards in all respects – especially with regard for human rights.

The capacity of mega-sporting events to promote human rights is enhanced by the fact that sport is inherently tied to sporting values and fair play, and sport’s history of providing a stage for progressive interventions in issues such as community relations, discrimination, gender equality and personal and social development.

This guide presents the lifecycle of a mega-sporting event, with specific elements of good practice at each stage that those involved in hosting the event should integrate into their planning, delivery and legacy in order to ensure a rights-compliant event.

Farbenblum et al., Transformative Technology for Migrant Workers^{^[13]}

Digital worker engagement platforms are ameliorating information asymmetries, empowering migrant workers and driving systemic reforms in at least five new ways.

First, these digital platforms are enabling migrant workers, service providers, and business to undertake activities they are already engaged in, but more quickly, cheaply, efficiently and, sometimes, more safely. For example, the Australian Fair Work Ombudsman’s Record My Hours app provides an automated geofencing functionality to enable workers to securely and automatically document their working hours at a particular worksite.

Second, digital platforms allow organizations to engage with workers at unprecedented scale. For example, worker reporting tools within the supply chain context are enabling suppliers and buyers to engage with tens of thousands of workers across a workforce.

Third, technology is enabling people to do things that were previously impossible. For instance, CDM’s Contratados platform allows for the sharing of knowledge and experiences among workers from different home villages working in different locations across the US who were previously unconnected. Significant advancements in technology itself are also making new activities possible and extending the realm of possibilities for low-income migrant workers. These include, for example, the ubiquitous penetration of smartphones that are becoming more affordable with improved features. Further relevant developments not covered in this report include the use of blockchain in migrant contract verification, payment systems and supply chain tracing, the use of biometric technology to register a migrant worker’s presence at a worksite, and developments in relation to digital ID.

Fourth, by expanding the realm of possible action by migrant workers, technology can lead to broader structural and policy change. For example, having empowered migrant workers with information to make informed choices about who they work for through Contratados, Centro de los Derechos del Migrante is considering consequences for their advocacy for visa portability that would enable migrant workers to change employers in the country of employment while remaining on the same visa.

Fifth, technology enables organizations to undertake their core activities in fundamentally different ways. For example, OUR’s WorkIt app facilitates a new approach to worker organizing that is primarily online, potentially transforming the offline work of traditional worker organizing into support for the online platform and training of online organizers. Legislators and industry groups are recognizing that worker engagement platforms offer tremendous potential but also have a number of significant limitations and pose new risks to workers. This report has explored a range of practical, ethical, and legal challenges associated with digital tools for migrant workers that warrant deeper consideration. (…)

The initiatives profiled in this report demonstrate that digital technology offers unprecedented and amplified opportunities for migrant worker engagement, empowerment, and justice. However, technology cannot fix structural inequalities, missing institutional capacity or a lack of human intent. Indeed, worker engagement platforms will rarely, if ever, fix a problem quickly or in isolation. Technology’s transformative potential will ultimately be realized through responsible and well-considered approaches to the funding, development, and implementation of platforms that respond to migrant workers’ vulnerabilities and the structural drivers of exploitation. Effective initiatives will be those that are integrated with strong offline programs with a well-conceived theory of change to deliver meaningful outcomes to migrant workers.

Jureidini, Corruption in Migrant Labour Recruitment^{^[14]}

Why are prospective low-skill, low-income migrant workers, particularly from Asian and African countries, required to pay private recruitment agencies (PRAs) in labour origin countries for being recruited, while most higher-skilled workers and professionals do not pay? The general assumption by some labour economists is that it is exploitative, but, because low-skilled labour supply far outstrips labour demand, the labour market works in alleviating unemployment in countries of origin and filling jobs in labour destination countries. (…)

Another myth is that the exploitation and corruption in the recruitment process is located in countries of origin and perpetrated by private recruitment agencies. In reality, the recruitment exploitation begins in the destination countries where companies tendering for a contract decide not to pay recruitment costs in order that their tender can be more price-competitive. Thus, the exploitation and corruption is systemic between both destination and origin countries with all stakeholders involved directly or indirectly, wittingly or unwittingly. (…)

The presence and level of kickback payments/bribes and payment of expenses to representatives of employer companies at destination. It is well known in the recruitment industry that recruitment agencies compete with one another by offering bribes to representatives of employers in order to procure labour supply contracts. These kickback bribes can range from US$400-1,500 per worker. In addition to the kickback payments, recruitment agencies are often required to fund the trips of employer representatives to the origin countries by paying for flight upgrades, or even airfares, 5 star hotels, food and sometimes ‘entertainment’. The trips are ostensibly for skills testing and selection of recruits. Employer personnel often ask agents for the hotel and food receipts so they can claim them from their companies on return, even though they had not paid. The funds for the kickback payments and employer travel expenses are built into the charges that agencies foist upon the low-skilled migrant workers as part of the “recruitment costs”. The extent of the kickback and other payments to personnel of the employing company will also be factors in the differences that migrant workers pay.

Worker payments used to pay various local officials in origin and destination countries to process paperwork more quickly or to prevent deliberate delays. There are kickback payments to “a range of government officials in both origin and destination countries to fraudulently approve a host of applications or facilitate discretionary decisions including, but not limited to, foreign worker quotas, demand set attestations, visas, medical certificates, and work permits.” There is little or no oversight of such fraudulent practices by origin or destination country governments.

Recommendations

Repeal laws and regulations in origin countries that allow recruitment agencies to charge migrant workers and criminalize charges to workers.
To show commitment to eradicating corruption, both origin and destination countries should ratify relevant international conventions and activate existing penal codes towards the recruitment industry.
Establish accredited, proven ethical recruitment agencies that do not charge workers as exclusive migrant labour suppliers to destination countries.
Establish serious, binding bilateral and multi-lateral agreements specifically banning the employeepays model and introducing an employer-only-pays model.
Mandatory reimbursement of charges to workers by employers who could in turn claim reimbursement from recruitment agencies involved.
Increased electronic/internet government-to-government recruitment.
Project tenders should include a separate detailed and transparent ‘Labour Recruitment Cost Analysis’ within bidding proposals that detail variable and fixed costs of recruitment, including labour costs of subcontractors. Lowest bids should be more carefully scrutinized to ascertain whether cost reductions are at the expense of migrant workers being recruited.
Calculate and establish international standards for reasonable commissions for agencies involved in low-skilled migrant labour recruitment.
Legislative reform is insufficient. The commercial sector must be targeted for compliance with ethical-legal standards and prosecuted for corrupt practices. For example, employing companies need oversight of personnel in human resources, procurement and facilities management departments to identify fraudulent transactions.

Background (Cambodia)

ILO, Recruitment Fees and Related Costs^{^[15]}

In Cambodia, the legal framework regulating overseas recruitment is Sub-Decree No. 190 on The Management of the Sending of Cambodian Workers Abroad through Private Recruitment Agencies, adopted in 2011. The Sub-decree outlines the responsibilities of private recruitment agencies for recruitment, job matching, pre-departure training, and the safe return of migrant workers. In 2013, eight Prakas (i.e., ministry-level decrees) were adopted to support Sub-Decree 190. These Prakas provided greater clarity to authorities and recruitment agencies on their roles and responsibilities. It should be noted that at the time of developing the eight Prakas, there were discussions about another Prakas that would specify the costs permitted to be charged to migrant workers and the maximum or “ceiling” fees that recruitment agencies are allowed to charge. However, this was not adopted. As of today, there are no official maximum service fees that recruitment agencies are allowed to charge…the Government is planning to fill this important gap by putting an official cap on allowable fees.

The Association of Cambodian Recruitment Agencies (ACRA), and the Manpower Association of Cambodia (MAC) have worked with the Ministry of Labour and Vocational Training, with the technical assistance of the ILO/TRIANGLE in ASEAN, to develop and adopt a Code of Conduct for Cambodian private recruitment agencies. The Code, which was launched in January 2020, marks a significant step forwards; it reflects increasing recognition and understanding that recruitment fees and related costs must be limited to those permissible by the law. They must also not be excessive and only be charged in the interests of the migrant workers. In addition, recruitment agencies must take steps to reduce the cost, and commit to moving towards a “zero fee” recruitment model.

Migration Displacement and Briefing Note Series II^{^[16]}

With regard to labour migration within the region, South East Asia has been characterised as one labour migration system with two groupings of states – emigration and immigration. Emigration states include The Philippines, Cambodia, Myanmar, Lao PDR, Vietnam, and Indonesia whilst immigration states are those that are more developed in the region: Singapore, Brunei, Malaysia and Thailand. Labour migration flows extend out from the region to destinations in the Middle East, Africa and Europe.

Instruments (Cambodia)

ASEAN Declaration on the Rights of Migrant Workers^{^[17]}

General Principles

1. Both the receiving states and sending states shall strengthen the political, economic and social pillars of the ASEAN Community by promoting the full potential and dignity of migrant workers in a climate of freedom, equity, and stability in accordance with the laws, regulations, and policies of respective ASEAN Member Countries;

2. The receiving states and the sending states shall, for humanitarian reasons, closely cooperate to resolve the cases of migrant workers who, through no fault of their own, have subsequently become undocumented;

3. The receiving states and the sending states shall take into account the fundamental rights and dignity of migrant workers and family members already residing with them without undermining the application by the receiving states of their laws, regulations and policies; and

4. Nothing in the present Declaration shall be interpreted as implying the regularisation of the situation of migrant workers who are undocumented.

Obligations of Receiving States

Pursuant to the prevailing laws, regulations and policies of the respective receiving states, the receiving states will:

5. Intensify efforts to protect the fundamental human rights, promote the welfare and uphold human dignity of migrant workers;

6. Work towards the achievement of harmony and tolerance between receiving states and migrant workers;

7. Facilitate access to resources and remedies through information, training and education, access to justice, and social welfare services as appropriate and in accordance with the legislation of the receiving state, provided that they fulfil the requirements under applicable laws, regulations and policies of the said state, bilateral agreements and multilateral treaties;

8. Promote fair and appropriate employment protection, payment of wages, and adequate access to decent working and living conditions for migrant workers;

9. Provide migrant workers, who may be victims of discrimination, abuse, exploitation, violence, with adequate access to the legal and judicial system of the receiving states; and

10. Facilitate the exercise of consular functions to consular or diplomatic authorities of states of origin when a migrant worker is arrested or committed to prison or custody or detained in any other manner, under the laws and regulations of the receiving state and in accordance with the Vienna Convention on Consular Relations.

Obligations of Sending States

Pursuant to the prevailing laws, regulations and policies of the respective sending states, the sending states will:

11. Enhance measures related to the promotion and protection of the rights of migrant workers;

12. Ensure access to employment and livelihood opportunities for their citizens as sustainable alternatives to migration of workers;

13. Set up policies and procedures to facilitate aspects of migration of workers, including recruitment, preparation for deployment overseas and protection of the migrant workers when abroad as well as repatriation and reintegration to the countries of origin; and

14. Establish and promote legal practices to regulate recruitment of migrant workers and adopt mechanisms to eliminate recruitment malpractices through legal and valid contracts, regulation and accreditation of recruitment agencies and employers, and blacklisting of negligent/unlawful agencies.

Sub-Decree on Sending of Cambodian Workers Abroad^{^[18]}

Chapter 3: Recruitment Agency

Article 6:

Any agency recruiting Cambodian workers to work abroad shall obtain an authorization for free according to the PRAKAS of the Ministry of Labor and Vocational Training except otherwise specified by other regulations.

Procedures to grant authorization shall be determined by a Prakas from the Minister of Labor and Vocational Training.

Recruitment agencies shall respect all applicable laws and regulations of the Kingdom of Cambodia.

Article 7:

To obtain authorization, the recruitment agencies shall fulfil the following requisite conditions:

a) Have an office with clear address and sufficient staff, office materials, communication and transportation means;

b) Have a training center with appropriate size, which consists of:

a building equipped with materials and equipment for vocational and language training to meet the standard skills and demand of the job market and for pre-departure orientation training in accordance with the guideline;
proper accommodation and dining areas that ensure good health, sanitation and safety; and
internal rules to be recognized by the Ministry of Labor and Vocational Training.

c) Have language teachers to provide language training that meets the standard skills and demand of the worker receivers;

d) Enter into a contract with the Ministry of Labor and Vocational Training on the duty and procedures of job placement service operation;

e) Deposit a guaranty money properly according to the guidelines as stipulated in Articles 8 and 10 of this subdecree;

f) Have a permanent representative in the receiving country.

Anukret on the Export of Khmer Labour to Work Overseas^{^[19]}

Article 1:

With the objectives of improving living conditions of people and enhancing their professional skills, while the job market in the country is inadequate to absorb the unemployed and the under employed, and to raise revenues for the State, the Royal Government shall authorize the export of Khmer labor to work overseas.

Article 5:

The Receiver Party shall specified the followings in their requests:

start and termination date of the work
nature of the work
location of the work site
number of workers and skills required
salaries and other remunerations including lodging accommodation, food, clothing, medical care and other basic living necessities.
Means of transport of labour to and from.

Upon receipt of the request, the Provider Party shall provide to the Receiver Party within 45 days a response indicating whether they can fulfil the terms of the request or whether they need to discuss further the matter.

The Receiver Party shall provide to the Provider Party within 30 days a response indicating whether to accept the terms in its entirety or in part. If there is no reply past a 30 days period and there is further follow up discussion, the Provider Party shall deem that the Receiver Party have given up their request.

Royal Government of Cambodia, National Employment Policy^{^[20]}

To oversee and protect migrant workers in obtaining decent employment and skill recognition

In line with strategic priorities of the Policy on Labour Migration for Cambodia 2014, provide support to Objective 3 “reviewing and harnessing benefits obtained from labour migration for development”, in particular upon return of the migrant workers to the country and their re-integration processes.

Measures

Governance of labour migration.
Protect and empower migrant workers.
Strengthen service provision for social and economic re-integration for returned migrants…
Improve information management system on migrant workers sent abroad and those who have returned.
Enforce and promote the implementation of the Labour Law, Immigration Law and other regulations related to the management of foreign manpower who come to work in Cambodia.

6.2 Protection and empowerment of women and men migrant workers

Since 2011, the MOLVT has given significant attention to increasing the protection of migrant workers prior to departure. Prakas No. 57 ensures that private recruitment agencies must satisfy a range of minimum requirements in order to obtain a license, with Prakas No. 250 and 251 instituting regular monitoring processes for private recruitment agencies, and suspending their license if they fail to comply. Currently, MOLVT is formulating checklists to outline more specific criteria for inspections of recruitment agencies.

Sub-decree 190, Prakas No. 46, and the effective delivery of MOLVT national standardised Pre-Departure Orientation materials, can ensure that each migrant worker is informed of their rights at work and workplace practices, culture and tradition in destination countries, financial literacy, health awareness, and how to access rights both at home and abroad. The Prakas ensures that trainers from recruitment agencies must be certified, and that migrant workers receive a pre-departure orientation certificate as proof of completion as a pre- requisite to migration. The MOLVT has conducted training-of-trainers for pre-departure training, and will monitor its quality and assess its effectiveness.

In January 2014, the MOLVT opened a Migrant Worker Resource Centre (MRC) at the Department of Employment and Manpower in Phnom Penh. Amongst its other functions, this MRC receives migrant worker grievances as per the complaints mechanism outlined in Prakas No. 249. Complaints received to date relate to conditions prior to departure (for example, costs or delays in deployment) or while abroad (for example, pay or work).

ACRA & MAC, Code of Conduct for Cambodian Private Recruitment Agencies^{^[21]}

1. Respect for, and implementation of national laws and fundamental principles and rights at work.

1.1 Private recruitment agencies must comply with all applicable legislation, regulations, multilateral and bilateral agreements on labour migration, and policies related to the recruitment of migrant workers in origin, transit and destination countries. This explicitly prohibits trafficking in persons, forced labour, and child labour, includes the right to freedom of association and collective bargaining and respect for equality of treatment and non-discrimination…

4. Respect for and enforcement of recruitment and employment contracts

4.1 Written contracts should be in Khmer language that the migrant worker can understand, the language of the receiving country and English, or explained clearly to the worker…and be enforceable in origin and destination countries.

4.2 Migrant workers’ agreements to the terms and conditions of recruitment and employment should be voluntary and free from deception or coercion.

4.3 Recruitment and employment contracts must be clear and transparent, at a minimum include the type of work, address of the workplace and information about working conditions, rest and leave time, wages, social insurance, living conditions, compliant procedures and dispute settlement procedures.

Social Protection across Borders: Roles of Mekong Countries of Origin^{^[22]}

2.1 Migration from Cambodia to Thailand, Malaysia and Japan

As of May 2019, 243,465 Cambodian nationals migrated to Thailand through processes established under a Memorandum of Understanding (MOU) signed between Cambodia and Thailand in 2015. Meanwhile, 158,828 Cambodians are completing the nationality verification process as part of the registration process for undocumented migrants inside Thailand. A further 9,126 Cambodians have migrated temporarily to Thailand as seasonal workers. Including undocumented workers, there are an estimated 400,000 to 500,000 Cambodian nationals working in Thailand. The majority are employed in the fisheries, agriculture, livestock, construction, manufacturing and service sectors, including domestic work.

Cambodia officially began sending workers to Malaysia in 1998. Between 1998 and 2016, 46,541 documented migrant workers migrated to Malaysia, of whom 86% were women and 70% domestic workers. More recent figures from 2017 put the number of documented Cambodian workers in Malaysia at 5,995, the overwhelming majority of whom (4,643) are women. In 2011, following widely reported cases of Malaysian employers abusing their Cambodian domestic workers, the Cambodian government issued a moratorium on the “first time” migration of domestic workers to Malaysia. Despite the ban, more than 8,000 Cambodian nationals were believed to have continued their employment in Malaysia. The ban was eventually lifted in 2015 when the Cambodian government signed an MOU with its Malaysian counterparts concerning the recruitment of domestic workers and a separate agreement concerning migrant workers in nondomestic work sectors. According to the Immigration Department of Malaysia, migrant workers from Cambodia are currently permitted to work in construction, on plantations, in agriculture, and in the service and manufacturing sectors.

Cambodia began sending workers to Japan in 2007 under the TITP.^[23] As of December 2017, 6,180 Cambodian workers had been recruited under the programme. In 2018, an additional 3,328 Cambodian workers migrated to Japan under the TITP.15 All the recruitment agencies interviewed by MMN for the study stated that the number is expected to grow rapidly, as migrants see Japan and the Republic of Korea as attractive destination countries in terms of safety and benefits. Currently, migrant workers in Japan are permitted to engage in 133 categories of work under 77 sectors. For Cambodians, agriculture (34%), textile (26%), construction (18%) and food manufacturing (11%) are among the most popular.

IOM, World Migration Report^{^[24]}

Migration involves high proportions of irregular migration, mostly in relation to economic factors such as poverty and lack of employment. Irregular migration flows such as those from Cambodia and the Lao People’s Democratic Republic to destinations including Thailand and Malaysia are often facilitated by smugglers. Smugglers also play a significant role in irregular migration out of the sub-region, with Vietnamese migrants moving to Europe, for example, often using smugglers to reach their destinations. Mixed migration flows exist (involving movements of people with and without international protection needs), as do migration flows underpinned by mixed motivations. Many migrants face exploitation in South-East Asia, stemming from their irregular status. Migrant workers in particular industries also face forced labour, exploitation and serious abuse (for example, in the fishing, agriculture, construction and manufacturing industries). In addition to smuggling, trafficking of persons continues to be a challenge in South-East Asia, with nearly half of all victims in Asia (46%) trafficked within the sub-region. Large numbers of people are trafficked for both sexual exploitation and forced labour, with a larger share of females trafficked for sexual exploitation in 2016. Countries such as Malaysia and Thailand had more victims of forced labour than sexual exploitation in 2016.

Chairattana et al, Route of Migration from Myanmar and Cambodia to Thailand^{^[25]}

Cambodian migrant workers are employed mainly in construction, manufacturing and general labour work. According to the survey by the IOM and Association of Cambodian Recruitment Agencies (ARCM), the majority of Cambodian respondents said that they worked as construction workers, while 23 and 19 percent of them worked in the manufacturing, and general labour work sectors, respectively. Moreover, the proportion of Cambodian workers employed in the Thai fishery sector is relatively low, accounting for only 13 percent. The percentage of Cambodian workers in this sector has significantly decreased due to the reduction in the local commercial fishing fleet and the permanent closing of informal factories in many coastal provinces.

The fishery sector jobs along with other sectors tend to be segregated by gender. Cambodian men tend to work as seafarers or construction workers, while Cambodian women work in food processing, garment workers, and in the service sectors. In Rayong where the FAIR Fish project is located, the percentage of Cambodian migrant workers was evenly distributed between various sectors, with a higher percentage working in the fishery sector – (28 percent), followed by 12 percent in domestic work, and 10 percent in industrial work. The predominance of Cambodian migrants working in the fishery sector is due to the fact that Rayong has a long coastline where lots of fishing communities and small processing factories are located. (…)

For Cambodian migrant workers, Thailand is among the popular destinations for both regular and irregular Cambodian workers because of geographical proximity, cultural similarity, higher wages, and prior migration by friends and family members. The main employment sectors which employ migrant workers are construction and manufacturing. In addition, the number of Cambodian workers in the Thai fishery sector tends to be decreasing because of the reduction of the commercial fishing fleet and the closing of factories in Thailand’s coastal provinces.

Along the Thailand-Cambodia border, there are seven main international checkpoints, 10 border trade checkpoints, and several small unofficial crossing points, called “Chong Anu Lom” in Thai, scattered along the porous border, which are frequently used by locals. MOU Cambodian workers are only allowed to cross the border at the Aranyaprathet- Poipet international checkpoint, whereas irregular Cambodian workers are able to enter Thailand through all checkpoints by using a tourist visa and then acquire documents later, or walk through forest or small stream along the border, taking irregular channels. The most frequently used migration routes are the “East- to-West” and “ South- to- North” routes. The East- to-West route has highest volume as the infrastructure to border is well constructed. On the other hand, the route to the northern border is less popular because of geographical obstacles and political unrest.

Chhay, Migration-Decision Making and Social Status: Cambodian Female Workers^{^[26]}

Prior to discussing the main findings on the decision-making and social status issues of Cambodian female migrant workers in Malaysia, it is important to mention several keys factors and actors which make migration to Malaysia possible. First, it was through the efforts of the Cambodian government, which established agreements with Malaysia in 1997 and 2015, that the flow of migrant workers to Malaysia was initiated and coordinated. Later, procedures, regulations, and laws established by the MoLVT enabled the establishment of recruitment agencies. In an improvement over the early stages of Cambodian migration to Malaysia, the MoLVT now monitors the training process of each recruitment agency before workers are permitted to depart for Malaysia (…)

At the family level, migrant workers feel more empowered and respected by parents and family members. Family members value their opinion in decision-making. Obviously, this is a result of their financial support which has raised the family’s standard of living, helped to repay outstanding debt and supported the education of their siblings or children. At the societal level (which refers to the neighbourhood), however, their social status is very much linked to their economic success. The most important point is that Cambodian society as a whole needs to acknowledge the contribution and sacrifice of the female migrants, including their achievement in overcoming social and cultural barriers to support their family financially, rather than focusing on negative speculation such as prostitution.

(…) I think further studies should focus on the following areas and topics. First, there should be an in-depth comparative study between single and married Cambodian migrant workers in either the domestic work sector or the industry sector. Second, it is common that married couples who migrate to work in foreign countries leave their children in the care of their parents or in-laws. There should be comparative studies on married women who migrate with or without their husband, since the families (especially the children) experience different psychological and socio-economic impacts. Third, more focus should be placed on the returnees, particularly on the impact of their overseas work on their social status, standard of living, and psychological wellbeing after their return. Fourth, the economics and pattern of transformation of the household, which results from the financial support of Cambodian migrant women should be evaluated through time and space. Last, but not least, Cambodia is relatively new to the migration experience, especially in the external sense. However, it appears that the government (and the MoLVT in particular) has made significant improvement in providing information, training, and measures to assist migrant workers in overcoming irregularities and challenges upon working in Malaysia. This work has been accomplished in coordination with related NGOs in Cambodia and Malaysia, as well as with the Cambodian Embassy in Malaysia.

However, as stressed in several studies, it is imperative to continue strengthening the regulations and implementation of related laws, sub-decrees, and contents of the MoU with Malaysia in order to ensure a positive experience for those Cambodians who break cultural barriers and social norms in order to earn a better living and improve the standard of living for their family and for Cambodia as a whole.

Sakulsri et al, Exploring the Experiences of Cambodian Labour Migrants^{^[27]}

The Cost of Migration

The participants in the study indicated that there are substantial differences in costs between going through informal and formal recruiters to get into Thailand legally. For Cambodian workers, where private recruitment agencies are the primary agents facilitating the process at the origin site, migrating for work under the MOUs requires approximately a three-month time period and a total expense of between $250 and $600. These costs are typically borne by the migrant workers through a combination of upfront payments and payroll deductions, with the services of a Thai private employment agency to complete the bureaucratic hurdles on the receiving end.

Migrants borrow money from banks, micro-finance institutions, and relatives in order to obtain passports and visas, and also pay their informal guides. If the migrants do not have enough money to prepare their documents or pay their informal guides, the business owner normally provides loans to them…

Working and Living Conditions

Most migrant workers were allowed to live at the workplace dormitory where all services were provided by the employer. However, in-depth interviews with migrants revealed that good living conditions depend on agreements with the employer and whether he/she respects the law. Generally, the migrants stayed in crowded rental rooms in order to save money and have funds to send back to their families in Cambodia. For those who were living alone, it was unsafe for them but they had felt they had little choice. The majority of migrants wanted the employer to give them an on-site dormitory with or without charge because they believed that it would be more secure than living outside in rental rooms.

Conclusions

In the past two and half decades, Thailand’s economic growth has generated employment opportunities and absorbed millions of workers from other countries, mainly from the Mekong sub-region. Cambodian people, especially unskilled labourers, have benefited from this important opportunity by getting regular jobs that bring in income for their families back home. Many Cambodians migrated to work in Thailand because of several push factors in Cambodia, including the lack of employment opportunities; rising debts to private money lenders, banks, and MFIs; rising health costs; hope for earning income for house building or renovation; having small land plots and crop failures; and encouragement from relatives and neighbours who already work or worked in Thailand. (…)

Remittances were used to pay off debt to the banks/MFIs/ relatives, to support family at home, and to assist parents in emergencies such as health problems or children’s needs. Other uses included savings in order to buy land, future small business investment, and farm vehicles. Generally, migrants could remit substantially from their salary to their parents or relatives at home, and they did so twice a year – for the Khmer New Year and the Phchum Ben festival. However, the most common way to remit was through Kasikorn Thai Bank as it has links to local money transfer agencies in Cambodia. (…)

The findings of the study indicate that migration systems are generally composed of the governance system, which is also coordinated by migrants, migrant families, agencies and employers working together through bilateral labor agreements and governing migration between the two countries. An investment in hands-on public awareness of documentation and trusted channels is needed so that prospective migrants and their families can be fully informed before making the decision to migrate. There need to be laws and standards in both the sending country and the receiving country (Thailand) which specify the costs and duration of the process to import labor, and this information should be publicly disseminated to the relevant offices/agencies/ personnel in both countries.

Questions

How would you describe work experience of Cambodian migrant workers abroad?
What are the most common concerns raised by Cambodian migrant workers?
What are the needs of migrant workers prior to migrating, while working abroad, and upon return in regards to social protection?
What policies and programmes are in place for migrant workers to access social protection in countries of origin and destination?
What are the main sectors that Cambodian migrant workers work in?
What recruitment-related costs and fees do migrant workers from Cambodia working in Thailand pay for?

Introduction

Indigenous people are under human rights law recognized as a vulnerable group in need of special protections. Specific to their situation is their culture and identity, which is intrinsically linked to the land and natural resources they have used for centuries. Indigenous people are directly affected by developmental projects that are meant to integrate them in mainstream modern society, or by industrial activities (extractive industries such as mining, oil and gas (chapter 28), forestry or other large infrastructure projects such as dams). This poses a grave danger to indigenous peoples’ way of life and their very survival as a group and as individuals. The main international standard in this area is ‘free, prior and informed consent’ (FPIC) that requires indigenous people to be actively engaged in economic decisions affecting their life. Under law, the FPIC it is not a right to veto but neither it is merely about providing some information and a brief consultation. It is a rigorous process of consultation requiring serious and good-faith efforts to reach an agreement. The ILO and the UN adopted international instruments for indigenous people and there is significant jurisprudence from the regional human rights systems (Inter-American and European systems) (chapter 6). They protect important interests through the right to land (chapter 25), right to benefit-sharing from economic activities (chapter 5), and cultural rights. Leading companies increasingly recognize the high vulnerability of this group and implement ‘enhanced’ due diligence measures commensurate with high risks of harm (chapters 7-14). Violence against leaders of indigenous peoples, and human rights defenders and environmental defenders more broadly, is a pervasive phenomenon. Companies are increasingly expected to protect such defenders as part of their social responsibility.

There are 24 different indigenous peoples in Cambodia and the estimated population is between 200,000 and 400,000. Cambodia ratified the relevant UN treaty – the Convention International Convention on the Elimination of All Forms of Racial Discrimination (CERD) – in 1983. In article 5, the CERD obligates ratifying states ‘to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law…’. Cambodia has however not ratified the ILO treaty on this issue, that is, the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

Main Aspects

Criteria for indigenousness (self-identification, descent, distinct circumstances)
Individual and collective rights
Sovereignty of states and self-determination of indigenous people
Right to development (including to develop priorities and strategies for development)
Intellectual property rights
Environmental protection and conservation
Free prior informed consent (FPIC) (unanimity, veto?)
Consultation process
Right to land and land tenure systems
Ownership of resources (subsurface resources and other)
Remedies and compensation for resources
Right to return to traditional lands (following displacement once the reason for displacement ceases)
Respect for the laws, customs and institutions of indigenous peoples (and their compatibility with international human rights)
Gender equality
Cultural diversity and common heritage of humankind
Impact assessment (social, spiritual, cultural and environmental impacts)
Benefit sharing (from exploitation of natural resources)
Participatory monitoring (of compliance with agreements)
Indigenous communities (divisions, dissent, representativeness)

Background

IFC, Guidance Note 7 – Indigenous People^{^[1]}

GN2. Many Indigenous Peoples’ cultures and identities are inextricably linked to the lands on which they live and the natural resources on which they depend. In many cases, their cultures, identities, traditional knowledge, and oral histories are connected to, and maintained through the use of, and relationships with, these lands and natural resources. These lands and resources may be sacred or have a spiritual significance. Use of sacred sites and other places of cultural significance may have important functions for the conservation and sustainable use of the natural resources upon which Indigenous Peoples rely for their livelihoods and well-being. Thus, project impacts on lands, forests, water, wildlife, and other natural resources may affect their institutions, livelihoods, economic development, and their ability to maintain and develop their identities and cultures. (…)

GN7. The Performance Standard applies to groups or communities of Indigenous Peoples who maintain a collective attachment to distinct habitats or ancestral territories, and the natural resources therein. This may include:

Communities of Indigenous Peoples who are resident upon the lands affected by the project as well as those who are nomadic or who seasonally migrate over relatively short distances, and whose attachment to ancestral territories may be periodic or seasonal in nature;
Communities of Indigenous Peoples who do not live on the lands affected by the project, but who retain ties to those lands through traditional ownership and/or customary usage, including seasonal or cyclical use. This may include Indigenous Peoples resident in urban settings who retain ties to lands affected by a project;
Communities of Indigenous Peoples who have lost collective attachment to lands and territories in the project area of influence, occurring within the concerned group members’ lifetime, as a result of forced severance, conflict, involuntary resettlement programs by governments, dispossession from their lands, natural calamities or incorporation into an urban area but who retain ties to lands affected by a project;
Groups of Indigenous Peoples who reside in mixed settlements, such that the Affected Indigenous Peoples only form one part of the more broadly defined community; or
Communities of Indigenous Peoples with collective attachment to ancestral lands located in urban areas.

GN17. Clients should adopt ICP approaches that build upon existing customary institutions and decision-making processes utilized by the Affected Communities of Indigenous Peoples. However clients should assess the capacity of the existing institutions and decision-making processes to deal with the wide array of new issues introduced by the project. In many situations, projects introduce issues that existing institutions and decision-making processes are poorly equipped to address. Inadequate capacity and experience may result in decisions and outcomes that have detrimental consequences for the Affected Communities and project relations with them. Specifically, poor processes, decisions, and outcomes may lead to challenges to existing institutions, decision-making processes, and recognized leadership, and to disputes over agreements between the Affected Communities of Indigenous Peoples and the project. Building awareness and capacity to address issues that can reasonably be predicted to occur can strengthen both Affected Communities and project agreements with them. Such capacity building can be done in a number of ways, including but not limited to involving competent local organizations such as civil society organizations (CSOs) or government extension agencies; contracting with academic or research organizations undertaking applied or action research involving communities; linking up with existing support programs for local communities run by government or other agencies; and providing resources and technical support for local municipal authorities in facilitating community engagement and strengthening.

GN18. Clients should keep in mind that the communities of Indigenous Peoples are not necessarily homogeneous and there can be divergent views and opinions within them. Experience demonstrates that: the views of the traditional elders or leaders may differ from those who have received formal education; the views of the elderly may differ from those of the youth; and the views of men may differ from women. Nonetheless in many cases, community elders or leaders, who are not necessarily the elected officials of these communities, play a key role. Furthermore, some segments of the community such as women, youth, and the elderly, may be more vulnerable to project impacts than others. The consultation should take into account the interests of these segments in the community while being cognizant of traditional cultural approaches that may exclude segments of the community from the decision-making process.

GN19. The ICP processes with and within Affected Communities of Indigenous Peoples will frequently span an extended period of time. Providing adequate information to the members of the indigenous community about a project’s potential adverse impacts and proposed minimization and compensation measures may involve an iterative process involving various segments of the community. Thus, (i) consultation should start as early as possible in the risks and impacts assessment process; (ii) client engagement processes should aim to ensure that the entire population of Affected Communities of Indigenous Peoples is aware of and understands the risks and impacts associated with project development; (iii) project information should be made available in an understandable format, using indigenous languages where appropriate; (iv) the communities should have sufficient time for consensus building and developing responses to project issues that impact upon their lives and livelihoods; and (v) clients should allocate sufficient time to fully consider and address Indigenous Peoples’ concerns and suggestions about the project in the project design and implementation.

Instruments

UN Declaration on the Rights of Indigenous Peoples^{^[2]}

Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,

Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind,

Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,

Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples,

Article 5 – Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 7 – (…) Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

Article 10 – Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 23 – Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 29 – Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. (…)

Article 31 – Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage… They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. (…)

Article 44 – All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.

Article 46 – Nothing in this Declaration may be interpreted as … authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

ILO Indigenous and Tribal Peoples Convention^{^[3]}

Recognising the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live, and

Noting that in many parts of the world these peoples are unable to enjoy their fundamental human rights to the same degree as the rest of the population of the States within which they live, and that their laws, values, customs and perspectives have often been eroded, and

Calling attention to the distinctive contributions of indigenous and tribal peoples to the cultural diversity and social and ecological harmony of humankind and to international co-operation and understanding,

Article 1

1. This Convention applies to:

(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.

Article 6

2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

Article 7

3. Governments shall ensure that, whenever appropriate, studies are carried out, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. (…)

Article 8

1. In applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws.

2. These peoples shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights. Procedures shall be established, whenever necessary, to resolve conflicts which may arise in the application of this principle.

Article 14

1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect. (…)

Article 15

2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.

Article 16

1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.

2. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.

3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist.

4. When such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.

5. Persons thus relocated shall be fully compensated for any resulting loss or injury.

IFC, Performance Standard 7 on Indigenous People^{^[4]}

1. Performance Standard 7 recognizes that Indigenous Peoples, as social groups with identities that are distinct from mainstream groups in national societies, are often among the most marginalized and vulnerable segments of the population. In many cases, their economic, social, and legal status limits their capacity to defend their rights to, and interests in, lands and natural and cultural resources, and may restrict their ability to participate in and benefit from development. Indigenous Peoples are particularly vulnerable if their lands and resources are transformed, encroached upon, or significantly degraded. Their languages, cultures, religions, spiritual beliefs, and institutions may also come under threat. As a consequence, Indigenous Peoples may be more vulnerable to the adverse impacts associated with project development than nonindigenous communities. This vulnerability may include loss of identity, culture, and natural resource-based livelihoods, as well as exposure to impoverishment and diseases.

4.-5. There is no universally accepted definition of “Indigenous Peoples.” (…) In this Performance Standard, the term “Indigenous Peoples” is used in a generic sense to refer to a distinct social and cultural group possessing the following characteristics in varying degrees:

Self-identification as members of a distinct indigenous cultural group and recognition of this identity by others;
Collective attachment to geographically distinct habitats or ancestral territories in the project area and to the natural resources in these habitats and territories;
Customary cultural, economic, social, or political institutions that are separate from those of the mainstream society or culture; or
A distinct language or dialect, often different from the official language or languages of the country or region in which they reside.

Avoidance of Adverse Impacts

9. Adverse impacts on Affected Communities of Indigenous Peoples should be avoided where possible. Where alternatives have been explored and adverse impacts are unavoidable, the client will minimize, restore, and/or compensate for these impacts in a culturally appropriate manner commensurate with the nature and scale of such impacts and the vulnerability of the Affected Communities of Indigenous Peoples. The client’s proposed actions will be developed with the ICP [Informed Consultation and Participation] of the Affected Communities of Indigenous Peoples and contained in a time-bound plan, such as an Indigenous Peoples Plan, or a broader community development plan with separate components for Indigenous Peoples.

Participation and Consent

10. The client will undertake an engagement process with the Affected Communities of Indigenous Peoples as required in Performance Standard 1. This engagement process includes stakeholder analysis and engagement planning, disclosure of information, consultation, and participation, in a culturally appropriate manner. In addition, this process will:

Involve Indigenous Peoples’ representative bodies and organizations (e.g., councils of elders or village councils), as well as members of the Affected Communities of Indigenous Peoples; and
Provide sufficient time for Indigenous Peoples’ decision-making processes. (…)

12. There is no universally accepted definition of FPIC [Free, Prior, and Informed Consent] … FPIC builds on and expands the process of ICP described in Performance Standard 1 and will be established through good faith negotiation between the client and the Affected Communities of Indigenous Peoples. The client will document:

the mutually accepted process between the client and Affected Communities of Indigenous Peoples, and
evidence of agreement between the parties as the outcome of the negotiations. FPIC does not necessarily require unanimity and may be achieved even when individuals or groups within the community explicitly disagree.

Circumstances Requiring Free, Prior, and Informed Consent

Impacts on Lands and Natural Resources Subject to Traditional Ownership or Under Customary Use

14. If the client proposes to locate a project on, or commercially develop natural resources on lands traditionally owned by, or under the customary use of, Indigenous Peoples, and adverse impacts can be expected, the client will take the following steps:

Document efforts to avoid and otherwise minimize the area of land proposed for the project;
Document efforts to avoid and otherwise minimize impacts on natural resources and natural areas of importance to Indigenous People;
Identify and review all property interests and traditional resource uses prior to purchasing or leasing land;
Assess and document the Affected Communities of Indigenous Peoples’ resource use without prejudicing any Indigenous Peoples’ land claim. The assessment of land and natural resource use should be gender inclusive and specifically consider women’s role in the management and use of these resources;
Ensure that Affected Communities of Indigenous Peoples are informed of their land rights under national law, including any national law recognizing customary use rights; and
Offer Affected Communities of Indigenous Peoples compensation and due process in the case of commercial development of their land and natural resources, together with culturally appropriate sustainable development opportunities, including:
Providing land-based compensation or compensation-in-kind in lieu of cash compensation where feasible.
Ensuring continued access to natural resources, identifying the equivalent replacement resources, or, as a last option, providing compensation and identifying alternative livelihoods if project development results in the loss of access to and the loss of natural resources independent of project land acquisition.
Ensuring fair and equitable sharing of benefits associated with project usage of the resources where the client intends to utilize natural resources that are central to the identity and livelihood of Affected Communities of Indigenous Peoples and their usage thereof exacerbates livelihood risk.
Providing Affected Communities of Indigenous Peoples with access, usage, and transit on land it is developing subject to overriding health, safety, and security considerations.

Relocation of Indigenous Peoples from Lands and Natural Resources Subject to Traditional Ownership or Under Customary Use

15. The client will consider feasible alternative project designs to avoid the relocation of Indigenous Peoples from communally held lands and natural resources subject to traditional ownership or under customary use. If such relocation is unavoidable the client will not proceed with the project unless FPIC has been obtained as described above. Any relocation of Indigenous Peoples will be consistent with the requirements of Performance Standard 5. Where feasible, the relocated Indigenous Peoples should be able to return to their traditional or customary lands, should the cause of their relocation cease to exist. (…)

Private Sector Responsibilities Where Government is Responsible for Managing Indigenous Peoples Issues

21. Where the government has a defined role in the management of Indigenous Peoples issues in relation to the project, the client will collaborate with the responsible government agency, to the extent feasible and permitted by the agency, to achieve outcomes that are consistent with the objectives of this Performance Standard. In addition, where government capacity is limited, the client will play an active role during planning, implementation, and monitoring of activities to the extent permitted by the agency.

22. The client will prepare a plan that, together with the documents prepared by the responsible government agency, will address the relevant requirements of this Performance Standard. The client may need to include

the plan, implementation, and documentation of the process of ICP and engagement and FPIC where relevant;
a description of the government-provided entitlements of affected Indigenous Peoples;
the measures proposed to bridge any gaps between such entitlements, and the requirements of this Performance Standard; and
the financial and implementation responsibilities of the government agency and/or the client.

UN Special Rapporteur, Extractive Industries and Indigenous Peoples^{^[5]}

2. Despite such negative experiences, looking towards the future it must not be assumed that the interests of extractive industries and indigenous peoples are entirely or always at odds with each other. In the course of his examination of situations across the globe, the Special Rapporteur has found that in many cases indigenous peoples are open to discussions about extraction of natural resources from their territories in ways beneficial to them and respectful of their rights. A number of situations have been brought to the attention of the Special Rapporteur in which indigenous peoples have agreed to industrial-scale resource extraction within their territories or have even themselves taken initiatives for mining or development of oil or gas.

3. On the other hand, there are certainly cases in which resource extraction is simply incompatible with indigenous peoples’ own aspirations and priorities for development, or may impede their access to lands and natural resources critical to their physical well-being and the integrity of their cultures and livelihoods. (…)

4. (…) the prevailing model of resource extraction is one in which an outside company, with backing by the State, controls and profits from the extractive operation, with the affected indigenous peoples at best being offered benefits in the form of jobs or community development projects that typically pale in economic value in comparison to profits gained by the corporation.

A preferred model: resource extraction and development through indigenous peoples’ own initiatives and enterprises

8. In contrast to the prevailing model in which natural resource extraction within indigenous territories is under the control of and primarily for the benefit of others, indigenous peoples in some cases are establishing and implementing their own enterprises to extract and develop natural resources. This alternative of indigenous-controlled resource extraction, by its very nature, is more conducive to the exercise of indigenous peoples’ rights (…)

Regulation of extraterritorial activities of companies

47. The Special Rapporteur has observed that in many cases in which extractive companies have been identified as responsible for, or at least associated with, violations of the rights of indigenous peoples, those violations occur in countries with weak regulatory regimes, and the responsible companies are domiciled in other, typically much more developed, countries. Even if States are not obligated under international law to regulate the extraterritorial activities of companies domiciled in their territory in order to compel or promote conformity with human rights standards, strong policy reasons exist for them to do so, as affirmed by the Guiding Principles on Business and Human Rights. These reasons include, in addition to preserving the States’ own reputation, the simple morality of exercising the State regulatory power to advance human rights and reduce human turmoil whenever possible.

Due diligence by extractive companies to respect indigenous peoples’ rights

53. Given their independent responsibility to respect human rights, business enterprises, including extractive companies, should not assume that compliance with State law equals compliance with the international standards of indigenous rights. On the contrary, companies should perform due diligence to ensure that their actions will not violate or be complicit in violating indigenous peoples’ rights, identifying and assessing any actual or potential adverse human rights impacts of a resource extraction project.

54. Such due diligence entails identifying with particularity, at the very earliest stages of planning for an extractive project, the specific indigenous groups that may be affected by the project, their rights in and around the project area and the potential impacts on those rights. This due diligence should be performed preliminarily at the very earliest stages of determining the feasibility of the project, in advance of a more complete project impact assessment in later stages of planning or decision-making about the project. Additionally, extractive companies should employ due diligence to avoid acquiring tainted assets, such as permits previously acquired by other business enterprises in connection with prospecting for or extracting resources in violation of indigenous peoples’ rights.

65. As is now generally understood, environmental and human rights impact assessments are important preconditions for the implementation of extractive operations. Indigenous peoples should have full access to the information gathered in impact assessments that are done by State agencies or extractive companies, and they should have the opportunity to participate in the impact assessments in the course of consultations or otherwise. States should ensure the objectivity of impact assessments, either by subjecting them to independent review or by requiring that the assessments are performed free from the control of the promoters of the extractive projects.

Indigenous participation through representative institutions

70. A defining characteristic of indigenous peoples is the existence of their own institutions of representation and decision-making, and it must be understood that this feature makes consultations with indigenous peoples very different from consultations with the general public or from ordinary processes of State or corporate community engagement. The Special Rapporteur notes cases in which companies and States have bypassed indigenous peoples’ own leadership and decision-making structures out of misguided attempts to ensure broad community support. Where indigenous peoples are concerned, however, international standards require engagement with them through the representatives determined by them and with due regard for their own decision-making processes. Doing so is the best way of ensuring broad community support. Indigenous peoples should be encouraged to include appropriate gender balance within their representative and decision-making institutions. However, such gender balance should not be dictated or imposed upon indigenous peoples by States or companies, anymore than indigenous peoples should impose gender balance on them.

71. It may be that in some circumstances ambiguity exists about which indigenous representatives are to be engaged, in the light of the multiple spheres of indigenous community and organization that may be affected by particular extractive projects, and also that in some instances indigenous representative institutions may be weakened by historical factors. In such cases indigenous peoples should be given the opportunity and time, with appropriate support from the State if they so desire it, to organize themselves to define the representative institutions by which they will engage in consultations over extractive projects.

UN Expert Mechanism on Indigenous Peoples, Free, Prior and Informed Consent^{^[6]}

Rationale

11. Free, prior and informed consent as provided for in the Declaration has three major rationales. First, it seeks to restore to indigenous peoples control over their lands and resources (…). Second, the potential for free, prior and informed consent to restore indigenous peoples’ cultural integrity, pride and self-esteem is reflected in article 11 of the Declaration. (…) Third, free, prior and informed consent has the potential to redress the power imbalance between indigenous peoples and States, with a view to forging new partnerships based on rights and mutual respect between parties (…).

Nature of free, prior and informed consent as a human rights norm

12. The Declaration recognizes collective rights and protects collective identities, assets and institutions, notably culture, internal decision-making and the control and use of land and natural resources. The collective character of indigenous rights is inherent in indigenous culture and serves as a bulwark against disappearance by forced assimilation.

13. Free, prior and informed consent operates fundamentally as a safeguard for the collective rights of indigenous peoples. Therefore, it cannot be held or exercised by individual members of an indigenous community. (…)

14. Free, prior and informed consent is a manifestation of indigenous peoples’ right to self-determine their political, social, economic and cultural priorities. It constitutes three interrelated and cumulative rights of indigenous peoples: the right to be consulted; the right to participate; and the right to their lands, territories and resources. Pursuant to the Declaration, free, prior and informed consent cannot be achieved if one of these components is missing.

15. States’ obligations to consult with indigenous peoples should consist of a qualitative process of dialogue and negotiation, with consent as the objective (…). The Declaration does not envision a single moment or action but a process of dialogue and negotiation over the course of a project, from planning to implementation and follow-up. (…)

18. The Human Rights Committee has also elaborated on indigenous peoples’ right to participate in a way that goes beyond consultation, noting that participation in the decision-making process must be “effective”. The supervisory bodies of the International Labour Organization (ILO) have underlined the interconnection between consultation and participation. Participation connotes more than mere consultation and should include the development of initiatives by indigenous peoples. “In this sense, the intertwined concepts of consultation and participation are mechanisms to ensure that indigenous peoples can decide their own priorities for the process of development and exercise control over their own economic, social and cultural development”.

Constituent elements of free, prior and informed consent

20. As affirmed in the Declaration, decisions to grant or withhold consent must be free. The term “free” is understood as addressing both direct and indirect factors that can hinder indigenous peoples’ free will. To that end, for a process of consultation to be genuine in the form of a dialogue and negotiation towards consent, the following should occur or the legitimacy of the consultation process may be called into question:

The context or climate of the process should be free from intimidation, coercion, manipulation (see A/HRC/18/42, annex, para. 25) and harassment, ensuring that the consultation process does not limit or restrict indigenous peoples’ access to existing policies, services and rights;
Features of the relationship between the parties should include trust and good faith, and not suspicion, accusations, threats, criminalization (see A/HRC/39/17), violence towards indigenous peoples or prejudiced views towards them;
Indigenous peoples should have the freedom to be represented as traditionally required under their own laws, customs and protocols, with attention to gender and representation of other sectors within indigenous communities. Indigenous peoples should determine how and which of their own institutions and leaders represent them. They should therefore enjoy the freedom to resolve international representation issues without interference;
Indigenous peoples should have the freedom to guide and direct the process of consultation; they should have the power to determine how to consult and the course of the consultation process. This includes being consulted when devising the process of consultation per se and having the opportunity to share and use or develop their own protocols on consultation. They should exert sufficient control over the process and should not feel compelled to get involved or continue;
Indigenous peoples should have the freedom to set their expectations and to contribute to defining methods, timelines, locations and evaluations.

21. Any free, prior and informed consent process must also be prior to any other decisions allowing a proposal to proceed and should begin as early as possible in the formulation of the proposal. (…) the “prior” component of free, prior and informed consent should entail:

Involving indigenous peoples as early as possible. Consultation and participation should be undertaken at the conceptualization and design phases and not launched at a late stage in a project’s development, when crucial details have already been decided;
Providing the time necessary for indigenous peoples to absorb, understand and analyse information and to undertake their own decision-making processes (…).

22. Consultation in the free, prior and informed consent context should be “informed”, implying that:

The information made available should be both sufficiently quantitative and qualitative, as well as objective, accurate and clear;
The information should be presented in a manner and form understandable to indigenous peoples, including translation into a language that they understand. (…) The substantive content of the information should include the nature, size, pace, reversibility and scope of any proposed project or activity; the reasons for the project; the areas to be affected; social, environmental and cultural impact assessments; the kind of compensation or benefit-sharing schemes involved; and all the potential harm and impacts that could result from the proposed activity;
Adequate resources and capacity should be provided for indigenous peoples’ representative institutions or decisions-making mechanisms, while not compromising their independence. Such institutions or decision-making processes must be enabled to meet technical challenges — including, if necessary, through capacity-building initiatives to inform the indigenous peoples of their rights in general — prior or parallel to the process of consultation. (…)

Consent

26. (…) Indigenous peoples may withhold their consent in a number of situations and for various purposes or reasons:

They may withhold consent following an assessment and conclusion that the proposal is not in their best interests. Withholding consent is expected to convince the other party not to take the risk of proceeding with the proposal. (…);
Indigenous peoples may withhold consent temporarily because of deficiencies in the process. Such deficiencies often consist of non-compliance with the required standards for the consent to be free, prior and informed. Indigenous peoples may seek adjustment or amendment to the proposal, including by suggesting an alternative proposal;
Withholding consent can also communicate legitimate distrust in the consultation process or national initiative. This is generally the situation in countries where there is insufficient recognition of indigenous peoples or protection of their rights to lands, resources and territories. Cases of indigenous peoples being harassed, and even being killed for resisting “trap-like” consultation offers are numerous.

44. Agreements on consent should include detailed statements of the project, its duration and the potential impacts on the indigenous peoples, including their lands, livelihoods, resources, cultures and environments; provisions for mitigation, assessment, and reimbursement for any damages to those resources; statements of indemnification of indigenous peoples for injuries caused to others on their lands; methods and venues for dispute resolution; detailed benefit-sharing arrangements (including investment, revenue sharing, employment and infrastructure); and a timetable of deliverables, including opportunities to negotiate continuing terms and licences. As a matter of best practice, any form of consent should include a detailed description of the process of notice, consultation and participation that preceded the consent.

45. As a dynamic process, the implementation of free, prior and informed consent should also be monitored and evaluated regularly. Such agreements should “include mechanisms for participatory monitoring” (…). The implementation of free, prior and informed consent should also include accessible recourse mechanisms for disputes and grievances, devised with the effective participation of indigenous peoples, including judicial review.

55. Some concerns have been raised about the many guidelines on free, prior and informed consent, including that the language used is often imprecise and sometimes introduces ambiguities, for example with respect to the point at which impact assessments are required or when consultation should begin. Sometimes these guidelines do not address the issue of indigenous peoples wishing to define their own consent process and to control aspects of the impact assessments. In addition, there is sometimes ambiguity in the event that consent is not forthcoming.

57. Indigenous peoples are also establishing their own protocols for free, prior and informed consent, particularly in North America and Latin America (…). These protocols are an important tool in preparing indigenous peoples, States and other parties to engage in a consultation or free, prior and informed consent process, setting out how, when, why and whom to consult. The establishment of these protocols is an instrument of empowerment for indigenous peoples (…).

61. Indigenous peoples also raise concerns about “consultation fatigue”; “manufactured” consent; limits put on consultation; a lack of a common understanding of international standards relating to free, prior and informed consent; an increase in encroachments of extractive industries; and a lack of structural change to ensure free, prior and informed consent at the institutional level.

62. National human rights institutions play an important role in contributing towards the implementation of free, prior and informed consent. As bodies acting independently from the Government, some with an expertise in the area of indigenous peoples, they can and do fulfil many roles in the consent context. For example, in Argentina, the national human rights institution intervened in a project by ArSat Co. Telecommunications, where it had several roles, including as general coordinator of the whole process, facilitator and guarantor controlling compliance with the legal framework. Its engagement included an open consultation process that overcame three years of roadblocks. (…)

Expert Mechanism advice No. 11 on indigenous peoples and free, prior and informed consent

9. States should ensure that indigenous peoples have the resources and capacity to effectively engage in consultation processes by supporting the development of their own institutions, while not compromising the independence of those institutions. States and the private sector should promote and respect indigenous peoples’ own protocols, as an essential means of preparing the State, third parties and indigenous peoples to enter into consultation and cooperation, and for the smooth running of the consultations.

10. States should ensure equality throughout the process and that the issue of the imbalance of power between the State and indigenous peoples is addressed and mitigated, for example employing independent facilitators for consultations and establishing funding mechanisms that allow indigenous peoples to have access to independent technical assistance and advice.

11. States should engage broadly with all potentially impacted indigenous peoples, consulting with them through their own representative decision-making institutions, in which they are encouraged to include women, children, youth and persons with disabilities, and bearing in mind that the governance structures of some indigenous communities may be male dominated. During each consultation, efforts should be made to understand the specific impacts on indigenous women, children, youth and persons with disabilities.

12. States should ensure that the free, prior and informed consent process supports consensus building within the indigenous peoples’ community, and practices that might cause division should be avoided, including when indigenous peoples are in situations of vulnerability like economic duress. Special attention should be given in this regard to indigenous peoples representing distinct sectors in the community, including dispersed communities and indigenous peoples no longer in possession of land or who have moved to urban areas.

Inter-American Court of Human Rights, Saramaka People v. Suriname^{^[7]}

3. The Commission asked the Court to determine the international responsibility of the State for the violation of Articles 21 (Right to Property) and 25 (Right to Judicial Protection) (…)

12. The representatives submitted an additional and rather detailed, three-and-a-half page account of certain facts not contained in the application, regarding the alleged “ongoing and continuous effects” associated with the construction of the Afobaka dam. Accordingly, under the heading of “Facts” in their brief containing pleadings, motions, and evidence, the representatives described, inter alia, the following alleged facts: the lack of consent by the Saramaka people for said construction; the names of the companies involved in the construction of the dam; various figures regarding the amount of area flooded and the number of displaced Saramakas from the area; the compensation that was awarded to those displaced persons; the lack of access to electricity of the so-called “transmigration” villages; the painful effect the construction had on the community; the reduction of the Saramaka people’s subsistence resources; the destruction of Saramaka sacred sites; the lack of respect for the interred remains of deceased Saramakas; the environmental degradation caused by foreign companies that have received mining concessions in the area, and the State’s plan to increase the level of the dam to increase power supplies, which will presumably cause the forcible displacement of more Saramakas and which has been the object of a complaint filed by the Saramakas before domestic authorities in the year 2003. (…)

121. In accordance with this Court’s jurisprudence as stated in the Yakye Axa and Sawhoyamaxa cases, members of tribal and indigenous communities have the right to own the natural resources they have traditionally used within their territory for the same reasons that they have a right to own the land they have traditionally used and occupied for centuries. Without them, the very physical and cultural survival of such peoples is at stake. Hence the need to protect the lands and resources they have traditionally used to prevent their extinction as a people. That is, the aim and purpose of the special measures required on behalf of the members of indigenous and tribal communities is to guarantee that they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected by States. (…)

127. Nevertheless, the protection of the right to property under Article 21 of the Convention is not absolute and therefore does not allow for such a strict interpretation. Although the Court recognizes the interconnectedness between the right of members of indigenous and tribal peoples to the use and enjoyment of their lands and their right to those resources necessary for their survival, said property rights, like many other rights recognized in the Convention, are subject to certain limitations and restrictions. In this sense, Article 21 of the Convention states that the “law may subordinate [the] use and enjoyment [of property] to the interest of society”. Thus, the Court has previously held that, in accordance with Article 21 of the Convention, a State may restrict the use and enjoyment of the right to property where the restrictions are: a) previously established by law; b) necessary; c) proportional, and d) with the aim of achieving a legitimate objective in a democratic society. In accordance with this Article, and the Court’s jurisprudence, the State will be able to restrict, under certain circumstances, the Saramakas’ property rights, including their rights to natural resources found on and within the territory.

129. In this particular case, the restrictions in question pertain to the issuance of logging and mining concessions for the exploration and extraction of certain natural resources found within Saramaka territory. Thus, in accordance with Article 1(1) of the Convention, in order to guarantee that restrictions to the property rights of the members of the Saramaka people by the issuance of concessions within their territory does not amount to a denial of their survival as a tribal people, the State must abide by the following three safeguards: First, the State must ensure the effective participation of the members of the Saramaka people, in conformity with their customs and traditions, regarding any development, investment, exploration or extraction plan (hereinafter “development or investment plan”) within Saramaka territory. Second, the State must guarantee that the Saramakas will receive a reasonable benefit from any such plan within their territory. Thirdly, the State must ensure that no concession will be issued within Saramaka territory unless and until independent and technically capable entities, with the State’s supervision, perform a prior environmental and social impact assessment. These safeguards are intended to preserve, protect and guarantee the special relationship that the members of the Saramaka community have with their territory, which in turn ensures their survival as a tribal people.

148. The State further argued that the “concessions which were provided to third parties did not affect [Saramaka] traditional interests”. The evidence before the Tribunal suggests not only that the level of consultation referred to by the State was not enough to guarantee the Saramakas’ effective participation in the decision-making process, but also that the State did not complete environmental and social impact assessments prior to issuing said concessions, and that at least some of the concessions granted did affect natural resources necessary for the economic and cultural survival of the Saramaka people. (…)

151. The observations of the Saramaka witnesses are corroborated by the research of expert witnesses Dr. Robert Goodland and Dr. Peter Poole, both of whom visited the concessions and surrounding areas between 2002 and 2007. In general, Dr. Goodland stated that “the social, environmental and other impacts of the logging concessions are severe and traumatic”, and that the “[l]ogging was carried out below minimum acceptable standards for logging operations.” Dr. Goodland characterized it as “among the worst planned, most damaging and wasteful logging possible.” Dr. Poole added that it was “immediately apparent to [him] that the logging operations in these concessions were not done to any acceptable or even minimum specifications, and sustainable management was not a factor in decision-making.”

152. Dr. Goodland and Dr. Poole both testified that the logging companies built substandard bridges in their concessions and that these bridges unnecessarily blocked numerous creeks. Because these creeks are the primary source of potable water used by members of the Saramaka people, “water necessary for drinking, cooking, washing, irrigation, watering gardens, and catching fish is not available. [Furthermore,] subsistence farms become less productive or so unproductive that they have to be abandoned.” According to Dr. Goodland, these large areas of standing water render the forest incapable of producing traditional Saramaka agricultural crops. Dr. Poole reached the same conclusions. (…)

154. In conclusion, the Court considers that the logging concessions issued by the State in the Upper Suriname River lands have damaged the environment and the deterioration has had a negative impact on lands and natural resources traditionally used by members of the Saramaka people that are, in whole or in part, within the limits of the territory to which they have a communal property right. The State failed to carry out or supervise environmental and social impact assessments and failed to put in place adequate safeguards and mechanisms in order to ensure that these logging concessions would not cause major damage to Saramaka territory and communities. Furthermore, the State did not allow for the effective participation of the Saramakas in the decision-making process regarding these logging concessions, in conformity with their traditions and customs, nor did the members of the Saramaka people receive any benefit from the logging in their territory. All of the above constitutes a violation of the property rights of the members of the Saramaka people recognized under Article 21 of the Convention (…).

155. The Court must also analyze whether gold-mining concessions within traditional Saramaka territory have affected natural resources that have been traditionally used and are necessary for the survival of the members of the Saramaka people. According to the evidence submitted before the Court, the members of the Saramaka people have not traditionally used gold as part of their cultural identity or economic system. Despite possible individual exceptions, members of the Saramaka people do not identify themselves with gold nor have demonstrated a particular relationship with this natural resource (…). [Nevertheless], because any gold mining activity within Saramaka territory will necessarily affect other natural resources necessary for the survival of the Saramakas, such as waterways, the State has a duty to consult with them, in conformity with their traditions and customs, regarding any proposed mining concession within Saramaka territory, as well as allow the members of the community to reasonably participate in the benefits derived from any such possible concession, and perform or supervise an assessment on the environmental and social impact prior to the commencement of the project. (…)

156. The Court recognizes that, to date, no large-scale mining operations have taken place within traditional Saramaka territory. Nevertheless, the State failed to comply with the three safeguards when it issued small-scale gold mining concessions within traditional Saramaka territory. That is, such concessions were issued without performing prior environmental and social impact assessments, and without consulting with the Saramaka people in accordance with their traditions, or guaranteeing their members a reasonable share in the benefits of the project. As such, the State violated the members of the Saramaka peoples’ right to property (…).

UN Global Compact,The Business Reference Guide^{^[8]}

Business benefits from developing an indigenous peoples’ rights policy in the following ways:

It publicly confirms the business’ commitment to meeting its responsibility to respect the rights of indigenous peoples, and demonstrates good business practice;
It provides a consistent and concrete global policy for all company managers and workers, irrespective of individual country managers that may change regularly;
It assists the business in identifying policy gaps and areas of risk;
It can provide a differentiator for business, resulting in competitive advantage;
It builds trust with external stakeholders, and can assist the business in understanding and meeting stakeholder expectations, which in turn support social licence to operate and helps prevent potential project delays, stoppage or cancelations;
It can provide reputational benefits, especially given the increasing level of stakeholder attention to the issue of community consent and indigenous peoples’ rights, particularly among investors;
It provides guidance for managers and workers in relation to matters that may impact the rights of indigenous peoples;
It provides operational guidance and risk management in environments where the rights of indigenous peoples may not be well understood;
It contributes to sustainable development;
It provides good will and long-term economic benefits, especially for businesses seeking to develop lands and resources; and
It helps companies to meet their commitments under the UN Global Compact (for participant businesses).

Anaya & Puig, Mitigating State Sovereignty: The Duty to Consult^{^[9]}

Some commentators and activists argue that the duty to consult entails an absolute right to give or withhold consent that can altogether trump the exercise of state sovereignty. By contrast, others have argued that it entails but a minimum duty to discuss with indigenous peoples’ important decisions that affect them, with ultimate state decision-making power remaining substantially unaltered. Drawing upon Professor Macklem’s theory emphasizing the emancipatory power of human rights law in providing tools to safeguard against (but also advocate within) the state, we demonstrate how the consultation duty functions as a mitigating force against the exercise of state sovereignty. We also explain how the contours of the international law duty to consult (as opposed to the political or aspirational postulates often associated with the duty) are determined by its context and purpose as a counterweight to the power of business enterprises. This counterweight guards against state decisions that might be contrary to the interests or wellbeing of indigenous peoples, but it does not—nor can it within the system of international law of which it is part—entirely override state sovereignty. Hence, the duty entails more than a mere right to be informed and heard but less than the right of veto.

Despite their acknowledged importance and underlying rationale, adequate consultation procedures continue to elude governments, which often analogize them to referenda or notice-and-comment processes. Some business enterprises also reject them because of unpredictable outcomes, added costs and delays, or simply unawareness or shortsightedness. In turn, business forecasts and concepts like ‘legitimate-backed expectations’ are often used to constrain the scope of consultations and frame the resulting choices as violations of internationally protected property or contract ‘rights’. At the core of such arguments are often investment instruments, some of which may provide extensive protections to foreign investors without the adequate policy and regulatory space to ensure the protection of human rights.

In this complex setting, how shall we understand the nature, reach, and limits of the duty to consult? Here, we also examine this question by describing two consultation processes in Latin America [Mexico and Costa Rica]. (…)

Governments and business enterprises are beginning to recognize that consultations are not optional, but rather that states are required to implement consultations in a manner consistent with their human rights obligations. (…) Despite this progress, different aspects of the duty remain subject to misconception, debate, or confusion. Generally, the problem can be attributed to limited institutional capacity in many countries, the novelty of this important topic, and of course, the resulting policy implications and other relevant consequences derived from different legal interpretations or normative understandings. In this section, we describe three main interpretive strains and derivative arguments that inform the debate: the instrumentalist, the consent-veto, and the minimalist approaches to consultations.

i. The Instrumentalist Approach

State authorities often characterize the consultation process as another participatory mechanism, rendering it with limited capacity to achieve its safeguard function against human rights violations. Hence, the process is analogized to notice-and-comment and referendum procedures that are already familiar in domestic law, without close attention to satisfying specific international standards. (…)

A problem—perhaps not exclusive to this context—is that ‘central’ authorities are often motivated by common social goals, such as building critical infrastructure, expanding economic benefits, or simply attracting private investment to marginalized communities. These motivations can easily translate into general indicators or markers i.e., FDI influx, GDP growth or Gini index. As a result of the incentives of this governance logic, states may ignore the consensus-building role that consultations oblige and instead use the process to legitimize specific projects. Moreover, with the growing demands on governments, from human rights protection to trade negotiations, the resulting pressures often result in the oversimplification of participation, with a corresponding preference for procedural formalism over substance. Hence, we term this first position an instrumental approach.

ii. The Consent – Veto Power Approach

As the main beneficiaries, it should not come as a surprise that indigenous peoples have forcefully advanced attention to implementing consultations. (…)

Within such maximalist interpretations, the process of consultation and the related objective of achieving ‘free, prior, and informed consent’13 is understood in the context of ‘indigenous sovereignty’. Advocates for indigenous peoples assert a freestanding ‘right to consent’ as part of the consultation norm. Accordingly, protecting a choice of giving or withholding consent—not specifically safeguarding human rights—is the key objective of the process under this approach. It is an approach similar to that used to motivate the early indigenous rights movement by assertion of a right by indigenous peoples to exercise full sovereignty. Although in many ways defensible, this approach is in strong tension with how international law recognizes sovereignty among states, as well as contrary to existing domestic constitutional arrangements. (…)

Notwithstanding its deep concern for the advancement of the rights of indigenous peoples, the consent-veto approach tends to reduce the key outcome of the process to obtaining or withholding consent, instead of safeguarding human rights. Ironically, it suggests a more limited protective role of the consultation as it assumes that state oversight expires once consent is obtained. More importantly, it eliminates the governments’ policy space to make important decisions without indigenous peoples’ consent—something that is difficult to reconcile with the basic idea of state sovereign decision-making and prevailing understandings of pluralistic democracy.

iii. The Minimalistic Approach

Many business enterprises tend to favor a narrow view of the duty to consult. In some circumstances, the state and business enterprise’s preferences align with what we term the ‘check-the-box’ or minimalistic approach.

This approach regards consultation processes as a sizeable bureaucratic obstacle that hinders productive activity. Accordingly, consultations are reduced to obtaining input to validate the measure with ultimate state decision-making power remaining substantially unaltered. For some callous corporate interests, consultations are of limited utility and a symptom of the expansive modern regulatory state. From this point of view, consultations are at minimum costly processes that delay projects. At worst, they are rent-seeking mechanisms that provide certain groups with the opportunity to extract underserved benefits.

Nevertheless, because in many places consultations are novel, and the particular authority and mechanisms to implement them are often vague and indeterminate, the consultation process can be perceived as arbitrary. (…) Moreover, disagreements around the consultation process and the applicability (or not) of specific requirements are problematized as potential violations of ‘rights of investors’—in particular the ‘fair-and-equitable treatment’ standard.

[This approach is] animated by a preference for deregulation and an enhanced view of economic liberalism. The ideas of risk reduction, free markets, and economic efficiency inform the position that the state should show restraint unless a ‘market failure’ exists with respect to indigenous peoples.21 If private individuals within indigenous communities are able and willing to enter freely into a transaction (even if marginalized and vulnerable) they will benefit from the transaction and the economic spillovers. According to this approach, instead of adding burdensome processes like consultations, states should minimize the risks and red tape to encourage long-term commitment of financial resources in indigenous communities. (…)

In terms of discursive tradition, this view of consultations can be situated within what has been termed a ‘neo-liberal’ approach to international relations and domestic policy. At the same time, this position is often rooted in a classical version of legal realism in international law and relations. For one, this approach is deeply cynical of the role of international human rights law, as well as the goals of the authorities that demand consultations. With its focus on economic and political power (including the power of both governmental and nongovernmental actors), this approach serves to counter a rights-based discourse by emphasizing the complexities of a world in which actors compete for business opportunities and foreign investment. Moreover, rightly or wrongly, corporate actors perceive indigenous peoples as too technically unsophisticated to decide questions relevant to the project and state authorities as self-interested or corrupt—in part as a result of the economic liberalism that informs their view.

Mitigating Sovereignty: Consultation within a Human Rights Framework

In Professor Macklem’s words: “International law [historically] excluded indigenous peoples, for example, from the outset from its distribution of sovereign power and included them within the sovereign power of states established on the territories they had inhabited since time immemorial. This process of exclusion and inclusion is an ongoing one. International law continues to exclude and include indigenous peoples in its distribution of sovereign authority by refusing to recognize that they possess a right of self-determination entitling them to acquire sovereign statehood… [However, i]ndigenous rights in international law speak to some of the adverse consequences of international law’s exclusion of indigenous peoples from its distribution of sovereign authority.”

Ultimately, consultations serve a protective role for indigenous peoples within an international legal system in which power is distributed among sovereign independent states. Consultations serve to mitigate the consequences of the power disparities between indigenous peoples and states, whose interests are often aligned with corporations or similar economic actors. Consultations therefore attempt to attain a balancing function by safeguarding the human rights of indigenous peoples within a state-centric world that international law itself supports. (…)

Like Professor Macklem, we believe that international law has the capacity to overcome its imperial origins and become a modern instrument of justice. Our interpretive approach is grounded in contemporary legal realism and informed by a sense of global pluralism—one that celebrates the emancipatory power that human rights law gives to different actors and the tools it provides to safeguard against (but also within) the state. (…)

Finally, to fulfill its protective function, the duty to consult entails a process that brings together different stakeholders and actors potentially affected by a proposed project. Hence, to enable the correct implementation of the duty, indigenous peoples are certainly the key constituency of consultations. However, the consultation process should also include the business enterprise, if any, behind the project that the state seeks to advance. The participation of the business enterprise aims to enable the main objective of the process—obtaining agreement on just terms to safeguard human rights. (…)

There are clear tensions between indigenous peoples, the state, and business enterprises around the implementation of particular development projects that are of concern to each. The duty to consult indigenous peoples arises at the epicenter of these tensions, which are heightened by globalization.

Kemp & Owen, Corporate Readiness and Applying FPIC in Mining^{^[10]}

Where there are strong points of incompatibility between domestic law and FPIC, a one-off, company-supported indigenous consent process could be considered invalid, or viewed as a threat to state sovereignty.

In many contexts, indigenous or tribal peoples cannot engage openly about human rights, or assert a right to FPIC. Several jurisdictions have rejected the veto rights attached to FPIC on the grounds that the state does not recognize indigenous people. The constitution of Papua New Guinea, for example, acknowledges the customary rights of landowners, but in our experience, both the state and developers resist the application of international standards in which landowners would be attributed the status of indigenous peoples. In addition, where oppressive politics are an established fact, operationalizing FPIC for a single mining project exposes indigenous or tribal peoples to the risk of harassment or persecution by the state. Recent case studies in Southeast Asia indicate that some states are either unwilling or incapable of managing dissent around resource development projects. While many states have ratified core human rights treaties, their ability to uphold basic human rights in the context of resource development is an ongoing issue.

Where the host country context is less compatible with the principles and functional requirements of FPIC, the human and financial resources required to address inherent power imbalances is far greater. However, issues arise in terms of what is an appropriate allocation to address these imbalances, and which party is best placed to provide the resources. For example, in the context of a low-capacity jurisdiction, a mining company may be willing to allocate resources to support an FPIC process. It is likely, however, that a company-resourced FPIC process will invite criticism over the privatization of rights and remedies, as has occurred with project-level, non-judicial grievance mechanisms. When responsibilities to support and protect human rights-related responsibilities are seen as privatized, questions arise about the nature of ‘consent’ and the degree to which we can be assured that it was given ‘freely’.

In our experience, the range of human and financial resources required to support complex engagement and negotiation processes with indigenous peoples varies. This investment often requires, for example, provision of support for dissenting groups, access to technical knowledge and experts, improvement of state or corporate engagement processes, the appointment of independent facilitators to resolve conflict between parties and external monitors to document intent, and impact of an FPIC process, including unintended consequences. (…)

Background (Cambodia)

Sovannara et al, Indigenous People: Political Rights, Culture, Education and Health^{^[11]}

Cambodia is home to 24 different indigenous peoples. With an estimated population of 200,000 to 400,000 overall, indigenous peoples are generally estimated to account for 1 to 2 percent of the national population although they are not clearly disaggregated in national census data. Compared with its neighbors in Southeast Asia, Cambodia has the smallest ethnic minority population, both relatively and in absolute numbers. Over half of the indigenous population is found in the north-eastern provinces of Ratanakiri and Mondulkiri. Indigenous groups from south-western and north-eastern provinces of Cambodia have similar cultural practices. Their livelihoods are based on animal husbandry and rotation (shifting) cultivation. Collection of non-timber forest products from the natural forest and weaving are the main sources of income. Indigenous peoples depend on forest products for their livelihoods, without destroying the land and forest that have been preserved by their ancestors. They have strong unity and respect for their customary law, practices and religion that bring blessings of good health and high-yielding crops.

Neth et al, Impacts of Economic Development on Indigenous Livelihoods^{^[12]}

There are many factors that affect community livelihoods (capabilities, assets, and activities) and community enthusiasm to accept changes in their livelihoods, as well as the dynamic relationship between these. (…) Indigenous communities often do not even figure in the large-scale economic development plans, and they are only rarely consulted. Also, small-scale land grabbing by the rich and politically influential has become common practice in indigenous regions, as the country’s infrastructure improves and indigenous areas become more accessible. Communal land-titling programs for indigenous communities exist, but there is little protection for indigenous land, even under interim protective measures.

Instruments (Cambodia)

Constitution of Cambodia^[13]

Article 31. Khmer citizens are equal before the law, enjoying the same rights, liberties and duties regardless of race, color, sex, language, beliefs, religions, political tendencies, birth origin, social status, wealth or other situations…

Land Law^[14]

Article 23. An indigenous community is a group of people that resides in the territory of the Kingdom of Cambodia whose members manifest ethnic, social, cultural and economic unity and who practice a traditional lifestyle, and who cultivate the lands in their possession according to customary rules of collective use (…)

Article 24. An individual who meets the ethnic, cultural and social criteria of an indigenous community, is recognized as a group member by the majority of such group, and who accepts the unity and subordination leading to acceptance into the community shall be considered to be a member of the indigenous community and is eligible to have the benefit of the rights, guarantees and protections provided by this law.

Article 25. The lands of indigenous communities are those lands where the said communities have established their residences and where they carry out traditional agriculture. The lands of indigenous communities include not only lands actually cultivated but also includes reserved necessary for the shifting of cultivation which is required by the agricultural methods they currently practice and which are recognized by the administrative authorities (…)

Article 26. Ownership of the immovable properties described in Article 25 is granted by the State to the indigenous communities as collective ownership. This collective ownership includes all of the rights and protections of ownership as are enjoyed by private owners (…)

Article 27. For the purposes of facilitating the cultural, economic and social evolution of members of indigenous communities and in order to allow such members to freely leave the group or to be relieved from its constraints, the right of individual ownership of an adequate share of land used by the community may be transferred to them. Immovable property that is subject to such private individual ownership cannot fall under the general definition of public properties of the State.

Article 28. No authority outside the community may acquire any rights to immovable properties belonging to an indigenous community.

Law on Forestry^[15]

Article 11. The Permanent Forest Estates shall be managed with the objective to increase to the maximum extent the social, economic, environmental, and cultural heritage benefits for the Kingdom of Cambodia and its people according to the principle of sustainable forest management. Ministry of Agriculture, Forestry and Fisheries shall classify, register and set boundaries for all forests within the Permanent Forest Estates. In carrying out these activities, Ministry of Agriculture, Forestry and Fisheries shall coordinate with concerned local communities, concerned authorities and the Ministry of Land Management Urban Planning and Construction in order to assist in registration of land property of indigenous community and preparation of the national land use map (…)

Article 15. Concessionaires shall have the right to manage and conduct Forest Products & By-products harvesting operations within their concession, while ensuring that the operation does not interfere with the following:

1- Customary user rights taking place on land property of indigenous community that is registered with the state consistent with the Land law; and

2. Customary access and user rights practiced by communities residing within, or adjacent to forest concessions.”

Article 16. The Forest Concession Agreement shall at a minimum include:

1-The date the concession is granted and the duration for which it is granted;

2-The location of the forest concession, indicating the identification of community owned property…;

3-A written statement that the concessionaire shall respect legal rights of others and not enter, to harvest Forest Products & By-products, in any special management areas, indigenous community property area or community forests; (…)

Protected Areas Law^[16]

Article 4. (…) The management of the protected area shall have to guarantee the rights of the local communities, indigenous ethnic minorities and the public to participate in the decision-making on the sustainable management and conservation of biodiversity.

Article 6. Officials of the Nature Protection and Conservation Administration have the following rights and duties: (…)

5. Promote education and dissemination among the public and coordinate with local indigenous communities to participate in the preparation and implementation of community protected areas. Detailed rights and duties of natural protection and conservation agency’s officials shall be determined by Prakas of the Ministry of Environment.” (…)

Article 11. Each protected area shall be divided into four (4) management zoning systems as the following:

1. Core zone: management area(s) of high conservation values containing threatened and critically endangered species, and fragile ecosystems…

2. Conservation zone: management area(s) of high conservation values containing natural resources, ecosystems, watershed areas, and natural landscape located adjacent to the core zone. Access to the zone is allowed only with prior consent of the Nature Conservation and Protection Administration at the area with the exception of national security and defense sectors. Small-scale community uses of non-timber forest products (NTFPs) to support local ethnic minorities’ livelihood may be allowed under strict control, provided that they do not present serious adverse impacts on biodiversity within the zone.

3. Sustainable use zone: management area(s) of high economic values for national economic development and management, and conservation of the protected area(s) itself thus contributing to the local community, and indigenous ethnic minorities’ livelihood improvement. After consulting with relevant ministries and institutions, local authorities, and local communities in accordance with relevant laws and procedures, the Royal Government of Cambodia may permit development and investment activities in this zone in accordance with the request from the Ministry of Environment.

4. Community zone: management area(s) for socio-economic development of the local communities and indigenous ethnic minorities and may contain existing residential lands, paddy field and field garden or swidden (Chamkar). Issuing land title or permission to use land in this zone shall have prior agreement from the Ministry of Environment in accordance with the Land Law. This management area does not cover the Apsara authorities and other authorities designated and management area(s) to which the Royal Government has allocated the tasks.” (…)

Article 18. The Nature Protection and Conservation Administration shall develop for individual protected area an action plan to be approved by the Ministry of Environment and in accordance with the NPASMP. Process for the development of the Plan shall involve coordination and consultations with local authority, local community, indigenous ethnic minorities’ community and stakeholders. (…)

Article 21. Local communities, indigenous ethnic minority communities, the public and civil society are encouraged to participate fully in the provision of and access to information relevant to the protected area management, conservation and development.

Article 22. The State recognizes and secures access to traditional uses, local customs, beliefs, and religions of the local communities, and indigenous ethnic minority groups residing within and adjacent to the protected areas. Access to traditional uses of natural resources and customary practices of local community and indigenous ethnic minority groups on family scale may be allowed within sustainable use zone and conservation zone following guidelines which shall be prescribed in the Prakas of the Ministry of Environment. (…)

Article 26. Local communities and indigenous ethnic minorities may not have the rights to clear or work forestlands in the community protected areas allocated to it, pursuant to the agreements with the Ministry of Environment, to practice agricultural farming or to claim title over the land, or to sell, lease, pawn, donate, share, divide or transfer the areas under its own management to any person or legal entity. Community protected area regulations shall be established by local community and indigenous ethnic minorities acknowledged by local authority and endorsed by the Nature Conservation and Protection Administration of the Ministry of Environment. Allocation of more farmlands to local community and indigenous ethnic minorities shall be determined by a sub-decree. (…)

Article 31. The Ministry of Environment shall, in collaboration with local communities, indigenous ethnic minorities, national and international organizations and NGOs, rehabilitate and restore the environment in degraded areas within the protected area.

Sub-Decree on the Procedure of Registration of Land of Indigenous Communities^[17]

Article 1. The purposes of this Sub-Decree are to determine principles, procedures, and mechanisms for the registration of land of indigenous communities as collective title.

Article 2. The objectives of this Sub-Decree are to provide indigenous communities with legal rights over land tenure, to ensure land tenure security, and to protect collective ownership by preserving the identity, culture, good custom and tradition of each indigenous community.

Article 3. This Sub-Decree has the scope of application for indigenous communities which have legally been established as legal entity in the territory of the Kingdom of Cambodia.

Sub-Decree on Community Forestry Management^[18]

Article 2. The objectives of this Sub-Decree include the following:

To implement the Forestry Law and other legislation regarding Local Community management of forest resources;
To define the rights, roles and duties of the Forestry Administration Responsible Authorities, CF Communities (…) and other stakeholders involved in Community Forestry management;
To establish procedures to enable Communities to manage, use and benefit from forest resources, to preserve their culture, tradition and improve their livelihoods;
To ensure user rights for a CF Community under a Community Forest Agreement;
To support the Royal Government of Cambodia’s policies of poverty alleviation and decentralization; (…)

Ministry of Industry, Indigenous Peoples Planning Framework^[19]

(…) 6. National Policy on the Development of Indigenous People: The Policy was approved by the Council of Ministers April 24, 2009 and sets out government policies related to indigenous peoples in the fields of culture, education, vocational training, health, environment, land, agriculture, water resources, infrastructure, justice, tourism and industry, mines and energy. Together with the Land Law (2001) this policy gives recognition to the rights of indigenous peoples to traditional lands, culture and traditions (…)

13. Despite that Cambodia has a Policy that recognizes the right of indigenous people to culture, education, vocational training, health, environment, land, agriculture, water resources, infrastructure, justice, tourism and industry, mines and energy, there a few decrees, sub-decree or procedure that specifically safeguards or protect the interest of the indigenous peoples…Otherwise, the main gap between the World Bank’s requirements and the policies of the Government of Cambodia relates to the absence of sector specific decree or standard operating procedures. (…)

(…) In relation to health policy, the Health Strategic Plan 2008-15 has no specific mention of indigenous peoples or the identification of measures to address the specific health barriers that they face. Ethnic minorities are mentioned once in relation to cross cutting challenges. The Rectangular Strategy is the guiding policy document in Cambodia and sets-out a broad social protection framework. The Rectangular Strategy Phase III (2013) has two brief references to indigenous peoples related to land registration/ titling and does not mention ethnic minorities. The National Strategic Development Plan (NSDP) 2014-2018 specifically mentions both indigenous peoples and ethnic minorities several times. Priority is focused on strengthening the existing national targeting mechanism (ID-Poor), enhancing targeting efficiency, reducing inclusion and exclusion errors, particularly of ethnic minorities. The NSDP mentions that an area of particular concern is the north-eastern provinces, where indigenous communities mainly dwell, these provinces are predominantly rural and to an extent ‘un-integrated’ in the national mainstream. Related to health the NSDP focuses on ensuring equitable access to quality health services…

Royal Government of Cambodia, National Strategic Development Plan^[20]

Challenge 4 – Reach out-of-school children and build non-formal education system.

Response 4: Measures to reduce the number children out of school with a specific focus on children from indigenous communities, children with disabilities, and children from poorer families, through targeted programs (…)

4.62 During the Fifth Legislature, RGC will intensify land reforms, focusing on strengthening the management, organization, utilization and distribution of lands that will contribute to reducing poverty, ensuring food security, protecting the environment and natural resources, and socio-economic development, within a market framework. RGC will focus on the following priorities: (…)

3. Accelerating land registration and issuance of land titles including for state lands, private lands and indigenous community lands through regular land registration process and further implementing the “Old Policy-New Action” policy giving priority to land titling in dispute-free areas in order to guarantee security of title and ensure confidence in land ownership (…) 4.63 To implement RGC’s priority policies for the Fifth Legislature, the Ministry of Land Management, Urbanization, and Construction (MLMUC) will take actions as follows: (…) Continue registering land titles for indigenous communities (…)

4.165 (…) Measures to reduce the number children out of school with focus on indigenous children, children with disabilities, and children from poor families.

CEDAW Committee, Concluding Observations on Cambodia^[21]

(…) it reiterates its previous concern about the lack of court cases on discrimination against women in the State party and the fact that there are significant barriers to access by women and girls to justice and effective remedies for violations of their rights, particularly for rural women, indigenous women (…) It also regrets the lack of representation of women belonging to ethnic minority groups and indigenous women in political and public life (…) The Committee welcomes the adoption of the action plan to prevent child marriage and teenage pregnancy in Ratanakiri Province for the period 2017–2021, which is aimed at ethnic communities and focused on increased prevention and response interventions. Nevertheless, it expresses concern that the rate of child marriage remains high in indigenous and rural communities and regrets the lack of measures adopted by the State.

Cambodia Indigenous Peoples Alliance, Situation of Indigenous Peoples^[22]

2. The lack of appropriate legal recognition of ‘indigenous people in Cambodia is among the reason for having no reliable statistical data on indigenous peoples. Further, it has been established and recognized that non-recognition of indigenous peoples’ profound relationship to their lands, territories and resources leads to gradual deterioration of their indigenous societies. This is profoundly true in Cambodia. Indigenous communities are recognized from their language but many of them have lost their ability to speak their own tongue affecting their confidence to declare their indigeneity. The loss of language is a result of long history of discrimination and lack of legal recognition of indigenous peoples that persists until today.

3. There are, however, laws and policies that refer to indigenous peoples in Cambodia and use varying terms such as ‘indigenous communities’, ‘indigenous ethnic minorities’ and ‘highland peoples’, but these effectively describe the same peoples. They include Bunong, Kui, Tompourn, Kroeung, Brov, Karvèt, Stieng, Kroal, Mil, Karchak, Por, Khoan, Chorng, Sui, Thmoun, Loun, Soauch, Rodè, Khe, Ro Orng, Spong, Loeun, Charay and Samrè. It is believed there are other communities of indigenous peoples that are yet to be identified and added in this list.

4. Among the main issues of indigenous peoples in Cambodia are the loss of their rights to land through economic land concessions (ELCs) and land conflicts, population growth and in-migration. The degradation of forest and general loss of their rights to their lands have gravely affected their impoverishment, education and health. (…)

8. RGC’s Forest Law of 2002 and Land Law of 2001 recognise indigenous peoples’ traditional use of land and the latter allows indigenous peoples to apply for community land titling (CLT). However, the process to apply for community land titling have been particularly challenging for indigenous peoples. As of December 2017, among 458 indigenous villages in fifteen (15) provinces, only nineteen (19) of them have their land registered as indigenous collective land titles or 16,271 hectares of land for 1,774 families. (…)

11. There have been 267 economic land concessions (ELC) granted in 2016x amounting to over 2 million hectares across Cambodia. These ELCs involve development projects such as large-scale agribusiness, mining and hydro-power development projects. At least 98 of these ELCs involve the lands, territories and resources (LTR) of indigenous peoples. None of these development initiatives that involve indigenous territories have gone through the process of FPIC. ELCs have always been discussions between companies and the RGC (…)

12. Furthermore, these 98 ELCs are mainly for rubber and other industrial plantations. The ELCs in Ratanakiri province alone cover 21% of the total provincial land areas. There are also two (2) dams currently operating while three (3) dams are under construction, and 7 are planned to be built along the Sesan Rivers. The Lower Sesan II (LS2) inaugurated in September 2017 resulted to fully submerging Kbal Romeas village in Stung Treng province, and displacing 83 families. Aside from the immediate impact of displacement, dams affect the overall land and water ecology of the affected areas. Studies have proven that indigenous peoples’ survival and overall wellbeing are tied to their LTR; lack of access and control over lands, and cutting ties from their LTR causes irreparable damage to indigenous peoples’ culture and tradition, livelihood, education, and health and overall development and wellbeing.

Minority Rights Group, World Directory of Minorities and Indigenous Peoples^[23]

The government recognizes community land titles (CLTs) through the Land Law of 2001, but the titles have been difficult to obtain. However, corruption and inefficiency among government officials have served to delay CLT issuance. The complexity and high costs of a communal land application – amounting to US$70,000 for each title – are also major barriers. The authorities have, however, taken some steps against illegal logging, which once again is particularly affecting the north-east region inhabited by indigenous communities. Nevertheless, it is thought that illegal logging has reduced the country’s forest cover from 13.1 million hectares in the 1973 to 8.7 million hectares in 2014. Sadly, the process appears to be accelerating: based on satellite imagery, the rate of forest clearance increased by 30 per cent in 2016 compared with the year before. Those defending their rights to land and a healthy environment are also under threat of targeted violence: Cambodia is one of the most dangerous places to be environmental rights defender, with many killed for their work in recent years, including indigenous activists. The government regularly targets environmental defenders through arbitrary detention and judicial harassment.

The Lower Sesan 2 dam in Stung Treng province, one of the biggest dam projects in the country was completed in 2017 and has displaced some 5,000 people including indigenous Bunong and ethnic Lao since its operations began. As with other megaprojects, it has caused widespread devastation to local environments, livelihoods and cultural traditions, with some communities completely uprooted as a result of flooding.

Socfin, Policy for Responsible Management^[24]

3.2 Responsible development of its operations

The Socfin Group commits to eliminate deforestation and to respect the rights and consent of local communities in all its operations and supply chains. To that purpose the Socfin Group commits to:

(…) Respect the right of indigenous populations and local communities to give or withhold their Free, Prior and Informed Consent (FPIC) to all operations affecting the land or resources on which they have legal, community or customary rights.

3.3 Respect of Human Rights

The Socfin Group commits to:

Respect and support the Universal Declaration of Human Rights,
Recognise and respect the rights of all workers, including the workers of its subcontractors, temporary workers and migrant workers,
Recognise and respect the rights of local and indigenous communities,
Maintain a transparent and open dialogue with local populations.

Hak et al, Impact of Government Policies and Corporate Land Grabs^{^[25]}

This article has argued that the Cambodian government incoherent laws and policies on ELCs and CLTs undermined indigenous people’s access to common land. The ELCs in the two villages did not provide significant benefits to local people in terms of employment opportunities and poverty alleviation as expected in the government’s proclaimed goals of long-term investment in agriculture. They in fact further diminished communities’ forest resources through logging and forest clearance. Indigenous villagers are being restrained from accessing their common land by the government laws and policies such as the Forestry Law of 2002, which prohibits land clearance inside protected areas. Yet, their common land was encroached upon by corporations, powerful elite, and landless in-migrants. (…) Likewise, the ELCs did not provide monetary compensation or jobs to the local communities. Instead, the companies employed Khmer in-migrants who exacerbated communal land grabbing. The loss of common resources upon which indigenous livelihoods used to rely severely weakens their adaptive capacity and ecological resilience.

Moreover, the ELC-influenced policy drive for cash crop production in the study commune resulted in further livelihood transitions and land use changes that culminated in income inequality and social differentiation. This cash crop trend pushed the transitions of indigenous people’s livelihoods relying on natural resources (in 2003) to livelihoods relying on cash crops (in 2012) to livelihoods struggling to be resilient in the face of price downturns (in 2018). While the crop boom stimulated economic growth, the practice exacerbated the diminishing state of forest and land resources. This process, driven by the state-sponsored market economy, also resulted in economic inequality. While the better-off households substantially improved their income through amassing more land, poor households earned very little or even suffered losses from their cash crop cultivation. This widening income inequality and social differentiation is likely to further reduce economic and social resilience among the indigenous communities.

With limited exit strategies, poor indigenous farmers will continue to be threatened with commons grabbing and ensuing “resilience grabbing” by market forces of land commodification. In the face of external threats (including intrusions by in-migrants) and increasing pressure on access to land and forest resources, there is definitely a need to strengthen transnational social movements and human rights advocacy and implement land titling strategies that benefit the poorest and most vulnerable groups in rural Cambodia. Otherwise indigenous people’s land areas will continue to recede and the success of their livelihood transitions will remain precarious at best.

To conclude, this article reveals that land grabbing adversely affects communal solidarity and local governance effectiveness. It also demonstrates how commons grabbing—including land sales within the indigenous communities—undermines livelihood resilience and limits the capacity of indigenous people to deal effectively with policies and strategies implemented by much more powerful forces. The Khmer-dominated Cambodian government continues to operate with a different understanding of law, legality, and conflict resolution, and multinational and domestic corporations (through the acquisition of ELCs) wield tremendous economic and political power to pursue their interests with impunity and at the expense of customary landholders. (…)

Pen & Chea, Failure to Secure Indigenous Peoples’ Rights to Access Land^{^[26]}

The majority of the challenges identified in this report derive from a failure to apply the domestic legal framework – these are, the laws, policies and regulations that the government itself has developed. The granting and management of economic and other land concessions in Cambodia suffers from a lack of transparency and adherence to existing laws. Many of the legal frameworks on these matters are relatively well-developed on paper, but the challenge of correctly implementing the procedure of Collective Land Titling remains large.

The experience gathered in Sre Ktum and Samuth Krom illustrates that community empowerment is key to claiming resources through administrative procedures such as Collective Land Tilting, Community Forestry and Community Protected Areas. However, the weak leadership, by-laws and internal rule enforcement procedures created serious internal problems and internal conflict, while various external forces first led to the dissolving of community land, then to the alienation of indigenous land. Partnership monitoring should be put in place to ensure that indigenous land is fully protected after granting the title, which would in turn strengthen community organization and economic development.

An appropriate community administrative procedure should be developed and provided as on-job training, with an additional plan and a small fund supporting an adequate adaptation of the Indigenous Community Committee. On the other hand, the functioning of the Indigenous Communities Committee is closely related to each individual family’s livelihood as well as to community funds, which should be aimed at improving effective land use rather than having community members solving their financial problems by selling land to outsiders – against by-laws and tradition. The experience gathered in the village of Samuth Krom has provided a valuable lesson on the importance of strong collaboration between communities and local administrative authorities in order to prevent ELCs or others from taking indigenous land. Social empowerment can sometimes be stronger than legal papers, such as in Sre Ktum where policy makers and implementers have explored the practical approach, using interim protective measures in the right way and at the right time, according to the Land Law. Still, indigenous land security needs to be further addressed, especially as regards legal titling procedures in the context of large-scale land grabbing by ELCs.

Questions

Given its ratification record of international treaties, what are Cambodia’s international obligations for respecting, protecting and fulfilling the rights of the indigenous people?
What does ‘free, prior and informed consent’ mean?
What should the company and the government do if indigenous people reject a business project on the lands they inhabit?
Can the Cambodian economy develop without harming indigenous people?
Where would you look for best practice on how to strike the right balance between economic development and indigenous peoples’ rights?

Introduction

Gender discrimination as distinguished from sex discrimination draws attention to the fact that unequal treatment is the result of socially constructed roles rather than mere biological characteristics. Women are still treated unequally in the workplace, in developed and developing countries alike, as evidenced by statistics showing a persistent pay gap. Outside the workplace, girls and women are subjected to various forms of discrimination. Such unequal treatment is further compounded when there are multiple grounds for discrimination (e.g. color, ethnicity, race, sexual orientation, disability (chapters 22 and 24)) exist simultaneously. This phenomenon is the issue of ‘intersectionality’ when several forms of discrimination intersect and compound the negative impact. Affirmative action – or more favorable treatment of a group – can be established in law and corporate policy as a way to reverse systemic inequities and patterns of discrimination that deny in practice the equality of opportunities to one group. The economic empowerment of women – especially in local communities affected by large industrial and agricultural projects – has long been a rather uncontroversial aspect in CSR as businesses see it as a positive contribution to society (chapters 5 and 8). Empowerment in the workplace, including in terms of career promotion on equal terms with men, is also an area where leading businesses have adopted special measures. Transnational enterprises that have outsourced production to low wage countries are linked to gender-based discrimination as the labour force of suppliers may in some industries be predominantly female (e.g textiles). It is recognized that these jobs have created financial independence for women, but it is also known that the discriminatory treatment can be both severe and difficult to document (just as infringements of freedom of association (chapter 19)). As part of their responsibilities to eliminate exploitative working conditions (chapters 15-21), companies are expected to perform impact assessments (chapter 9) and take corrective measures (chapter 11) that identify and respond to the particular factors of risk women workers are exposed to, including transportation at night time, childcare facilities, medical evaluations and so on.

In Cambodia, women account for approximately 52% of the total population,^[1] and play a significant role in economic growth and sustainable development. Nonetheless, gender discrimination, gender stereotyping, as well as cultural and social barriers remain persistent problems for women in Cambodia, making them more vulnerable to violence, exploitation and harassment in various spheres of economic, social and private life. Particularly, women are likely to experience violence in the workplace as a result of their work and economic status. The Royal Government of Cambodia has been committed to promoting gender equality in both public and private sectors. Some recent key commitments adopted in 2019 include the National Policy on Gender Equality, and the third National Action Plan to Prevent Violence against Women. Internationally, Cambodia has ratified key human rights treaties guaranteeing women’s rights and gender equality, particularly the Convention on the Elimination of All Forms of Discrimination against Women, and its Optional Protocol on individual complaints. Regionally, Cambodia has endorsed a number of ASEAN instruments (the 2004 Declaration on the Elimination of Violence against Women in ASEAN, the 2013 ASEAN Declaration on the Elimination of Violence against Women and the Elimination of Violence Against Children, and the ASEAN Regional Plan of Action on the Elimination of Violence against Women). This chapter explains different forms of discrimination and various areas in and outside the workplace where unequal treatment persists.

Main Aspects

Discrimination against women, gender equality, women rights and gender mainstreaming
Direct and indirect discrimination
Differential treatment (affirmative action)
Discrimination by public or private actors
‘Intersectionality’ (intersecting forms of discrimination and their compounded negative impact)
‘Inherent requirements of the job’
Causes of gender inequality
‘Sex’ and ‘gender’
Women’s rights and cultural diversity
Economic empowerment, protections in employment, right to work, pay gap (gap in wages)
Principle of “equal remuneration for work of equal value”
Rural women
Night work
Resettlement (displacement from land)
Obligations of states (to respect, protect and fulfil women’s rights)

Background

UN, The Beijing Declaration and Platform for Action^{^[2]}

The Platform for Action is an agenda for women’s empowerment. It aims at (…) removing all the obstacles to women’s active participation in all spheres of public and private life through a full and equal share in economic, social, cultural and political decision making. This means that the principle of shared power and responsibility should be established between women and men at home, in the workplace and in the wider national and international communities. Equality between women and men is a matter of human rights and a condition for social justice and is also a necessary and fundamental prerequisite for equality, development and peace.

Critical areas of concern:

The persistent and increasing burden of poverty on women.
Inequalities and inadequacies in and unequal access to education and training.
Inequalities and inadequacies in and unequal access to health care and related services.
Violence against women.
The effects of armed or other kinds of conflict on women, including those living under foreign occupation.
Inequality in economic structures and policies, in all forms of productive activities and in access to resources.
Inequality between men and women in the sharing of power and decision-making at all levels.
Insufficient mechanisms at all levels to promote the advancement of women.
Lack of respect for and inadequate promotion and protection of the human rights of women.
Stereotyping of women and inequality in women’s access to and participation in all communication systems, especially in the media.
Gender inequalities in the management of natural resources and in the safeguarding of the environment.
Persistent discrimination against and violation of the rights of the girl child.

UN, Working Group on Discrimination against Women in Law and in Practice^{^[3]}

Economic and social participation

38. In its reports, the Working Group has demonstrated how women still face structural disadvantages and discrimination in the economic and social spheres throughout their life cycle. Social and cultural barriers still prevent many girls from completing their education, and legal discrimination, entrenched inequalities in wages and labour force participation and caring responsibilities prevent women from participating equally in economic and social life. Women do 2.6 times more unpaid care and domestic work than men. Older women suffer from a gender pension gap, making them particularly vulnerable to poverty, and all women face the persistent risk of sexual harassment and other forms of gender-based violence in schools, workplaces and other public places, in addition to the home (see A/HRC/26/39).

39. Indeed, women continue to be paid less than men for work of equal value and are severely underrepresented in top leadership in decision-making bodies in business, finance and trade, including in international institutions such as the International Monetary Fund and the World Trade Organization, and in cooperatives and trade unions. Furthermore, women have been grossly underrepresented in the formulation of the macroeconomic policies that have led to rocketing inequality, austerity measures and the undermining of care services on which women are more dependent than men. Today, there are more girls in schools than ever before, but one out of five adolescent girls is still out of school. Moreover, women’s higher educational achievements worldwide have not always translated into corresponding leadership positions or even equality in the economic field. While more women have entered the workforce, they still represent only 49 per cent of working age women, against 75 per cent of working age men. Globally, the gender pay gap still stands at 23 per cent. Women often have access only to vulnerable forms of employment; the majority of women in developing countries are employed in the informal sector or in family businesses, and do not always receive wages directly. In countries where women’s income mainly comes from agricultural activities, they generally have very limited ownership of land.

40. While women’s economic empowerment has proven to be among the least controversial issues relating to gender equality, the underlying cultural, social and political causes of economic inequality have not been successfully and fundamentally tackled. Women’s economic and social rights will never be fulfilled if the necessary infrastructure for care services, enforcement of equal pay for work of equal value, and regulation of women’s labour rights in the informal sector, in which many women are employed globally, are not put in place.

UN Committee on Discrimination against Women, Recommendation No. 28^{^[4]}

5. Although the Convention [UN Convention on Elimination of Discrimination against Women] only refers to sex-based discrimination, interpreting article 1 together with articles 2 (f) and 5 (a) indicates that the Convention covers gender-based discrimination against women. The term “sex” here refers to biological differences between men and women. The term “gender” refers to socially constructed identities, attributes and roles for women and men and society’s social and cultural meaning for these biological differences resulting in hierarchical relationships between women and men and in the distribution of power and rights favouring men and disadvantaging women. This social positioning of women and men is affected by political, economic, cultural, social, religious, ideological and environmental factors and can be changed by culture, society and community. The application of the Convention to gender-based discrimination is made clear by the definition of discrimination contained in article 1. This definition points out that any distinction, exclusion or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women of human rights and fundamental freedoms is discrimination, even where discrimination was not intended. This would mean that identical or neutral treatment of women and men might constitute discrimination against women if such treatment resulted in or had the effect of women being denied the exercise of a right because there was no recognition of the pre-existing gender-based disadvantage and inequality that women face. (…)

9. Under article 2, States parties must address all aspects of their legal obligations under the Convention to respect, protect and fulfil women’s right to non-discrimination and to the enjoyment of equality. The obligation to respect requires that States parties refrain from making laws, policies, regulations, programmes, administrative procedures and institutional structures that directly or indirectly result in the denial of the equal enjoyment by women of their civil, political, economic, social and cultural rights. The obligation to protect requires that States parties protect women from discrimination by private actors and take steps directly aimed at eliminating customary and all other practices that prejudice and perpetuate the notion of inferiority or superiority of either of the sexes, and of stereotyped roles for men and women. The obligation to fulfil requires that States parties take a wide variety of steps to ensure that women and men enjoy equal rights de jure and de facto, including, where appropriate, the adoption of temporary special measures in line with article 4, paragraph 1, of the Convention (…)

13. Article 2 is not limited to the prohibition of discrimination against women caused directly or indirectly by States parties. Article 2 also imposes a due diligence obligation on States parties to prevent discrimination by private actors. (…) The appropriate measures that States parties are obliged to take include the regulation of the activities of private actors with regard to education, employment and health policies and practices, working conditions and work standards, and other areas in which private actors provide services or facilities, such as banking and housing.

16. (…) States parties shall ensure that there is neither direct nor indirect discrimination against women. Direct discrimination against women constitutes different treatment explicitly based on grounds of sex and gender differences. Indirect discrimination against women occurs when a law, policy, programme or practice appears to be neutral in so far as it relates to men and women, but has a discriminatory effect in practice on women because pre-existing inequalities are not addressed by the apparently neutral measure. Moreover, indirect discrimination can exacerbate existing inequalities owing to a failure to recognize structural and historical patterns of discrimination and unequal power relationships between women and men.

18. Intersectionality is a basic concept for understanding the scope of the general obligations of States parties contained in article 2. The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste and sexual orientation and gender identity. Discrimination on the basis of sex or gender may affect women belonging to such groups to a different degree or in different ways to men. States parties must legally recognize such intersecting forms of discrimination and their compounded negative impact on the women concerned and prohibit them. (…)

Instruments

The Universal Declaration of Human Rights^{^[5]}

Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (…)

Convention on the Elimination of All Forms of Discrimination against Women^{^[6]}

Article 1: For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Article 2: States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (…)

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

Article 11

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

The right to work as an inalienable right of all human beings;
The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;
The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;
The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;
The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;
The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:

To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;
To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;
To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;
To provide special protection to women during pregnancy in types of work proved to be harmful to them.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.

Article 14

1. States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy (…).

2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right:

To participate in the elaboration and implementation of development planning at all levels; (…)
- To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their technical proficiency;
- To organize self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self employment;
- To participate in all community activities;
- To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes; (…)

ILO, Discrimination (Employment and Occupation) Convention^{^[7]}

Article 1

1. For the purpose of this Convention the term discrimination includes–

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; (…)

ILO, Equal Remuneration Convention^{^[8]}

Article 2: 1. Each Member shall (…) ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value. (…)

UN, Sustainable Development Goals^{^[9]}

20. Realizing gender equality and the empowerment of women and girls will make a crucial contribution to progress across all the Goals and targets. The achievement of full human potential and of sustainable development is not possible if one half of humanity continues to be denied its full human rights and opportunities. Women and girls must enjoy equal access to quality education, economic resources and political participation as well as equal opportunities with men and boys for employment, leadership and decision-making at all levels. We will work for a significant increase in investments to close the gender gap and strengthen support for institutions in relation to gender equality and the empowerment of women at the global, regional and national levels. All forms of discrimination and violence against women and girls will be eliminated, including through the engagement of men and boys. The systematic mainstreaming of a gender perspective in the implementation of the Agenda is crucial.

Goal 5. Achieve gender equality and empower all women and girls

5.1 End all forms of discrimination against all women and girls everywhere

5.2 Eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation

5.3 Eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation

5.4 Recognize and value unpaid care and domestic work through the provision of public services, infrastructure and social protection policies and the promotion of shared responsibility within the household and the family as nationally appropriate

5.5 Ensure women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic and public life

5.6 Ensure universal access to sexual and reproductive health and reproductive rights as agreed in accordance with the Programme of Action of the International Conference on Population and Development and the Beijing Platform for Action and the outcome documents of their review conferences

5.a Undertake reforms to give women equal rights to economic resources, as well as access to ownership and control over land and other forms of property, financial services, inheritance and natural resources, in accordance with national laws

5.b Enhance the use of enabling technology, in particular information and communications technology, to promote the empowerment of women

5.c Adopt and strengthen sound policies and enforceable legislation for the promotion of gender equality and the empowerment of all women and girls at all levels

ILO, General Survey on the Fundamental Conventions^{^[10]}

Direct and indirect discrimination

744. Direct discrimination occurs when less favourable treatment is explicitly or implicitly based on one or more prohibited grounds. It includes sexual harassment and other forms of harassment. (…)

745. Indirect discrimination refers to apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with certain characteristics. It occurs when the same condition, treatment or criterion is applied to everyone, but results in a disproportionately harsh impact on some persons on the basis of characteristics such as race, colour, sex or religion, and is not closely related to the inherent requirements of the job. In referring to the “effect” of a distinction, exclusion or preference, it is clear that intention to discriminate is not an element of the definition in the Convention, which covers all discrimination irrespective of the intention of the author of a discriminatory act. The Convention also covers situations in which inequality is observed in the absence of a clearly identifiable author, as in some cases of indirect discrimination or occupational segregation based on sex. Challenges related to structural discrimination therefore need to be addressed under the Convention.

Distinctions, exclusions or preferences based on inherent requirements

828. (…) In no circumstances should the same requirement involving one or more of the grounds of discrimination be applied to an entire sector of activity or occupation, especially in the public service. Careful examination of each individual case is required. The general exclusion of certain jobs or occupations, including in export processing zones or the public service, from the scope of the measures intended to promote equality of opportunity and treatment is contrary to the Convention.

829. Most of the cases regarding the application of Article 1(2) [of ILO Discrimination Convention (111)] addressed by the Committee have related to distinctions based on sex, religion, political opinion or national extraction restricting access to employment and occupation. The complexity of some of the examples illustrates the importance of providing full particulars on the practical application of this provision in order to be able to assess adequately which cases can be deemed to be non-discriminatory within the meaning of the Convention, and the Committee has regularly requested such information.

830-831. There are very few instances where the grounds listed in the Convention actually constitute inherent requirements of the job. For example, distinctions on the basis of sex may be required for certain jobs, such as those in the performing arts (…) Restrictions for a narrow range of jobs associated with particular religious or political institutions or non-profit organizations and organizations specifically promoting the well-being of an ethnic group may be acceptable. Criteria such as political opinion, national extraction and religion may be taken into account as inherent requirements of certain posts involving special responsibilities. (…)

UN Working Group, Discrimination against Women in Economic and Social Life^{^[11]}

Discriminatory legislation in a number of States continues to obstruct women’s enjoyment of equal rights and access to economic opportunity and resources. The roles and responsibilities assigned to women and men on the basis of stereotypes relegate women to a subordinate status and limit their economic opportunities. A significant number of countries have adopted anti-discrimination measures, but these have not resulted in equality of opportunity in women’s economic and social lives.

Women are disproportionately concentrated in informal and precarious employment; they are exposed to multiple forms of discrimination; the wage gap persists; maternity protections have not been fully and effectively implemented; and in many countries women do not have equal rights and access to resources. There has been little attention the negative impacts of the business sector on women’s enjoyment of human rights. Care functions are disproportionately allocated to women and create a major barrier to women’s full participation in economic market activity. Violence against women is another obstacle to women’s equal opportunity. Austerity measures taken by some States in response to economic crisis have had a disparate impact on women, increasing the precarity of their employment and their burden of unpaid care work.

8. This report focuses on the gender aspects of economic and social rights. These rights have particular significance for women, who are disproportionately affected by economic and social marginalization and poverty. Women’s right to equality in economic and social rights is substantive, immediate and enforceable. It concerns the division of existing resources, not the development of resources, and therefore the principle of progressive realization does not apply. (…)

30. Alternatives to austerity have been applied successfully in some countries. Counter-cyclical approaches in general have helped reduce the depth and duration of the impact and leverage a more rapid recovery. The Swedish recovery programme focused on avoiding labour market exclusion, particularly for women, and maintaining paid parental leave and day-care subsidies, recognized as particularly beneficial to women workers. Iceland stands out as a pioneer in adopting policies to protect women in the recent crisis, mainstreaming gender in its recovery measures, and appointing a working group to evaluate the impact of the economic crisis from a gender perspective and ensure that gender equality principles are reflected in State-led initiatives to restore the economy.

46. The gender wage gap persists: women’s wages represent between 70–90 per cent of men’s wages in most countries. Research shows that differences in women’s working hours, which are lower than men’s, cannot justify the wage gap, and the wage gap cannot be attributed solely to a motherhood penalty. Furthermore, wage gaps remain substantial despite women’ gains in education. Indeed, wage gaps are usually wider between men and women with tertiary education.

70. Export processing zones are delineated industrial estates with special incentives set up to attract foreign business and trade. They are feminized work enclaves in which women make up the majority of workers, up to 100 per cent in some cases. Women workers face particularly harsh employment conditions. Normal labour laws are usually not applied. Whether de jure or de facto, there is a lack of union organization and, typically, women’s wages are 20–50 per cent lower than men’s. Furthermore, these zones are a health hazard for women, with overextended working hours, rights violations relating to pregnancy protection, maternity leave or childcare, and sexual harassment.

72. Extractive industries, as well as, increasingly, biofuel, agribusiness and real estate projects, are land intensive, and land dispossession has disproportionately displaced women. Women, who make up 70–80 per cent of the world’s small-scale farmers, lose their livelihood, often do not receive compensation paid to landowners, who are male, and are the last in line for formal employment in the industries. As primary carers, they are deprived of shelter and the ability to feed their families.The arrival of a transient, largely male workforce also increases prostitution, sexual violence and sexually transmitted disease. Mismanagement of extractive projects can also lead to severe violations of human rights that are manifested in unique ways for women, including murder, torture, rape and sexual violence at the hands of security forces brought in to impose order.

OECD, Guidelines for Multinational Enterprises^{^[12]}

Commentary on Employment and Industrial Relations

54. The reference to the principle of non-discrimination with respect to employment and occupation in paragraph 1e is considered to apply to such terms and conditions as hiring, job assignment, discharge, pay and benefits, promotion, transfer or relocation, termination, training and retirement. (…)

UN, Women’s Empowerment Principles^{^[13]}

1. Leadership Promotes Gender Equality

Affirm high-level support and direct top-level policies for gender equality and human rights.
Establish company-wide goals and targets for gender equality and include progress as a factor in managers’ performance reviews.
Engage internal and external stakeholders in the development of company policies, programmes and implementation plans that advance equality.
Ensure that all policies are gender-sensitive – identifying factors that impact women and men differently – and that corporate culture advances equality and inclusion.

2. Opportunity, Inclusion and Non-discrimination

Pay equal remuneration, including benefits, for work of equal value and strive to pay a living wage to all women and men.
Ensure that workplace policies and practices are free from gender-based discrimination.
Implement gender-sensitive recruitment and retention practices and proactively recruit and appoint women to managerial and executive positions and to the corporate board of directors.
Assure sufficient participation of women – 30% or greater – in decision-making and governance at all levels and across all business areas.
Offer flexible work options, leave and re-entry opportunities to positions of equal pay and status.
Support access to child and dependent care by providing services, resources and information to both women and men.

3. Health, Safety and Freedom from Violence

Taking into account differential impacts on women and men, provide safe working conditions and protection from exposure to hazardous materials and disclose potential risks, including to reproductive health.
Establish a zero-tolerance policy towards all forms of violence at work, including verbal and/or physical abuse and prevent sexual harassment.
Strive to offer health insurance or other needed services – including for survivors of domestic violence – and ensure equal access for all employees.
Respect women and men workers’ rights to time off for medical care and counseling for themselves and their dependents.
In consultation with employees, identify and address security issues, including the safety of women traveling to and from work and on company-related business.
Train security staff and managers to recognize signs of violence against women and understand laws and company policies on human trafficking, labour and sexual exploitation.

4. Education and Training

Invest in workplace policies and programmes that open avenues for advancement of women at all levels and across all business areas, and encourage women to enter nontraditional job fields.
Ensure equal access to all company-supported education and training programmes, including literacy classes, vocational and information technology training.
Provide equal opportunities for formal and informal networking and mentoring.
Articulate the company’s business case for women’s empowerment and the positive impact of inclusion for men as well as women.

5. Enterprise Development, Supply Chain and Marketing Practices

Expand business relationships with women-owned enterprises, including small businesses, and women entrepreneurs.
Support gender-sensitive solutions to credit and lending barriers.
Ask business partners and peers to respect the company’s commitment to advancing equality and inclusion.
Respect the dignity of women in all marketing and other company materials.
Ensure that company products, services and facilities are not used for human trafficking and/ or labour or sexual exploitation.

6. Community Leadership and Engagement

Lead by example – showcase company commitment to gender equality and women’s empowerment.
Leverage influence, alone or in partnership, to advocate for gender equality and collaborate with business partners, suppliers and community leaders to promote inclusion.
Work with community stakeholders, officials and others to eliminate discrimination and exploitation and open opportunities for women and girls.
Promote and recognize women’s leadership in, and contributions to, their communities and ensure sufficient representation of women in any community consultation.
Use philanthropy and grants programmes to support company commitment to inclusion, equality and human rights.

7. Transparency, Measuring and Reporting

Make public the company policies and implementation plan for promoting gender equality.
Establish benchmarks that quantify inclusion of women at all levels.
Measure and report on progress, both internally and externally, using data disaggregated by sex.
Incorporate gender markers into ongoing reporting obligations.

Gender Equality: Gender equality describes the concept that all human beings, both women and men, are free to develop their personal abilities and make choices without the limitations set by stereotypes, rigid gender roles, or prejudices. Gender equality means that the different behaviours, aspirations and needs of women and men are considered, valued and favoured equally. It does not mean that women and men have to become the same, but that their rights, responsibilities and opportunities will not depend on whether they are born female or male.

Gender Mainstreaming: Gender mainstreaming is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in any area and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension in the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and social spheres, such that inequality between women and men is not perpetuated.

Empowerment: Empowerment means that people – both women and men – can take control over their lives: set their own agendas, gain skills (or have their own skills and knowledge recognized), increase self-confidence, solve problems, and develop self-reliance. It is both a process and an outcome.

Women’s Empowerment Principles, Gender Gap Analysis Tool (WEPs Tool)^{^[14]}

The WEPs Tool is a business-driven tool designed to help companies from around the world assess gender equality performance across the workplace, marketplace, and community.

OECD, Due Diligence Guidance for Responsible Business Conduct^{^[15]}

Q2. How can an enterprise integrate gender issues into its due diligence?

Applying a gender perspective to due diligence means thinking through how real or potential adverse impacts may differ for or may be specific to women. For example, it is important to be aware of gender issues and women’s human rights in situations where women may be disproportionately impacted:

In contexts where women face severe discrimination.
In contexts where the enterprise’s activities significantly affect the local economy, environment and access to land and livelihoods.
In conflict and post-conflict areas.
In sectors and global supply chains in which large numbers of women are employed, such as apparel, electronics, tourism, health and social care, domestic work, agriculture and fresh cut flowers.

Additionally it involves adjusting, as appropriate, the actions that enterprises take to identify, prevent, mitigate and address those impacts to ensure these are effective and appropriate. For example,

Collecting and assessing sex-disaggregated data and understanding whether enterprise activities impact differently on men and women.
Developing, designing and evaluating gender sensitive and gender responsive policies and plans to mitigate and address real and potential adverse impacts identified.
Identifying overlapping/ accumulated vulnerabilities (e.g. indigenous, illiterate, female worker).
Developing gender sensitive warning systems and protection of whistleblowers.
Supporting women’s equal and meaningful participation in consultations and negotiations.
Assessing whether women benefit equitably in compensation payments or other forms of restitution.
Consulting women outside the presence of men and facilitating separate spaces for women to express opinions and provide input on business decisions.
Identifying gender-specific trends and patterns in actual or potential adverse impacts that have been overlooked in the due diligence processes.
Assessing whether grievance mechanisms are gender-sensitive, taking into consideration the obstacles that may prevent women from accessing them.

ILO, Promoting Equity: Gender-Neutral Job Evaluation for Equal Pay^{^[16]}

Causes of wage discrimination

A great number of studies have examined the causes of this pay gap and have led to the identification of two sets of factors. The first concerns the characteristics of individuals and of the organizations in which they work. The following are among the most important of these factors:

Educational level and field of study;
Work experience in the labour market and seniority in the organization or in the job held;
Number of working hours;
Size of organization and sector of activity.

Part of the pay gap could thus be abolished through policies aimed directly at these dimensions such as, for example, adopting flexible working hours in the workplace so as to allow parents to balance work and family responsibilities, making it possible for mothers to continue in their careers without interruption, thus gaining more work experience and seniority.

Even when this first set of factors is taken into account, however, econometric studies have repeatedly found an unexplained residual gap between the average wages of women and men. (…) In other words, the wage discrimination targeted by Convention No. 100 does not correspond to the whole wage gap that is observed, but only to a portion of it.

The residual gap reflects wage discrimination based on sex resulting from a second set of factors (…):

Stereotypes and prejudices with regard to women’s work;
Traditional job evaluation methods designed on the basis of the requirements of male-dominated jobs;
Weaker bargaining power on the part of female workers who are less often unionized and hold a disproportionate number of precarious jobs.

Rio Tinto, Why Gender Matters^{^[17]}

A key objective of the Rio Tinto Communities policy and standard is to “build enduring relationships with our neighbours that are characterised by mutual respect, active partnership and long term commitment”. To effectively achieve this, gender, diversity and human rights considerations must be integrated into the management and planning of all Communities work and across all sections of the business.

Gender refers to the different roles, rights, responsibilities and resources of women and men and the relations between them. A gender focus highlights the complex and often unequal power relationships between men and women which exist in almost every culture and many workplaces. While a holistic focus on gender equality is required, women require particular attention because of the mining industry’s characteristics – its “male” orientation and particular impacts on women. (…)

There is also increasing evidence that women and girls often suffer from discrimination, experience disproportionately negative consequences as a result of mining, and tend to be less likely than men to benefit from the economic and employment opportunities that mining can bring. (…)

While Rio Tinto cannot be expected to change deeply entrenched gender inequalities alone, we do have a responsibility to ensure that our actions do not exacerbate or distort existing inequalities or create new issues in the communities in which we operate. Our corporate commitments to diversity and human rights require that we move beyond impact mitigation to a position where we proactively strive to improve the situation of impacted and affected people – women and men, girls and boys – in all locations where our operations and projects are based.

The approach [of Rio Tinto] can be divided into four inter-related phases, with inclusive engagement sitting at the centre, as a cross cutting theme that relates to all the other phases:

Inclusive engagement

Ensure that women and men from different social groups are consulted and can participate in engagement and development in meaningful ways.

1. Know and understand

Develop gender insights through specific consultation with women’s and men’s groups and discuss the findings with community members.
Integrate gender issues into all baseline assessments: baseline communities assessments (BCAs), social impact assessments (SIAs) and social risk assessments (SRAs).
Consider gender impacts for different stages of mine life (including closure).
Identify barriers and constraints to participation along gender lines.

2. Plan and implement

Consider and integrate gender issues in the Communities strategy and multi-year plans.
Align gender considerations in the Communities multi-year plans with other operational plans within the business unit.
Use gender sensitive methodologies to plan and implement community engagement and programme initiatives.
Develop other operational plans and standard operating procedures with potential gender impacts in mind.

3. Monitor, evaluate and improve

Use a monitoring framework that includes gender sensitive indicators, underpinned by credible data, which is updated regularly.
Plan programmes and projects to promote gender equality, and to measure progress against gender sensitive indicators.
Develop participatory monitoring and evaluation processes where possible, that are inclusive of both women and men.

4. Report and communicate

Publicly report on what action each site is taking to address gender issues and the outcomes of these actions.
Present gender-disaggregated data for key performance areas in site reports.
Communicate this information to the community.

Vodafone, Sustainable Business Report^{^[18]}

Sustainable business strategy

The three global transformation goals are:

Women’s empowerment;
Energy innovation; and
Youth skills and jobs.

Women’s empowerment

We are strongly committed to diversity and inclusion. That commitment includes an aspiration to become the world’s best employer for women by 2025. We also recognise the transformative effects of mobile technology for women in low-income emerging markets. Getting a mobile phone for the first time can enhance a woman’s physical and economic security, education, skills, access to employment opportunities and her (and her children’s) health and wellbeing. Our goal is to bring the benefits of mobile to an additional 50 million women living in emerging markets, including women in some of the world’s poorest communities. (…)

Equality of opportunity between men and women is a key indicator of long-term social stability and economic advancement. By empowering women and promoting gender equality we can enable communities, economies and businesses – including our own – to prosper.

Women and men enter the workplace as young adults with equivalent skills and in broadly equal numbers; however, as their careers evolve, a much greater proportion of men than women enter middle and senior-level roles. A significant proportion of women either leave the formal workforce altogether or remain within it but in more junior roles than their male peers. This ‘leaky pipeline’ of female talent is evident worldwide; only four out of more than 190 countries have equal numbers of male and female legislators, senior officials and managers.

Maternity represents a significant inflection point for many women. A lack of support through pregnancy and childbirth and the challenge of balancing childcare with working life accounts for the departure of large numbers of women from the workplace. Women often experience difficulties in rejoining the workforce after taking a career break to bring up children or support their family. Others may return to work but find fewer opportunities for promotion and progression than their male counterparts. This is a lost opportunity. A new study from KPMG indicates that, at a global level, if more skilled women on a career break were encouraged and able to re-enter the workplace (and on the assumption that they would not displace others in doing so), the maximum potential boost to economic activity worldwide would be around €103 billion, with the potential addition to total household earnings in the region of €290 billion. (…)

We employ more than 108,000 people and are one of the largest foreign investors in many of the countries in which we operate. We also provide employment opportunities for hundreds of thousands of people across our global supplier base of more than 17,000 companies. (…)

Programmes such as our ground-breaking global maternity policy and our ReConnect initiative to bring women back into the workforce after a career break are designed to address the challenge of the ‘leaky pipeline’ and maximise our ability to recruit, retain and develop women at every level of our workforce.(…)

Worldwide, there are an estimated 55 million skilled women of middle-management level and above who are not in work following a career break, often after having children. This isn’t just a lost opportunity for women and their families; it also means that businesses such as Vodafone are missing out on a huge pool of potential talent, insight and experience. However, getting back into work can be difficult; in recent research, 80% of women who have taken a career break said more support was needed to help them return successfully to the workplace.

In 2017, Vodafone launched ReConnect (…) The programme includes training, coaching and induction programmes to refresh and enhance professional skills to help returners prepare for re-entry to the workplace and progress their careers. Our target is to hire 1,000 ReConnect women over three years in areas such as Technology, Commercial, HR, Finance, Legal, External Affairs, Customer Operations and Business Intelligence & Analytics. This will increase the number of women in management roles; around 10% of all of our external management hires worldwide will be recruited through the ReConnect programme.

ReConnect joiners will be able to take advantage of flexible working options and a phased return to work, such as a four-day week for the first six months. (…) “I felt like my career break wiped clean all of my previous career achievements; it was as if I had never worked. It is very hard being a working mum but it is manageable with the right support. ReConnect gave me this.” (…)

Research by KPMG indicates that recruiting and training new employees to replace women who do not stay in the workforce after having a baby could cost businesses worldwide up to US$47 billion every year. We are focused on ensuring that working parents are encouraged and supported to return to work for us after the birth of a child and can be confident that they have the potential to grow their careers while raising a family.

In 2016, we became one of the first organisations in the world to introduce a global minimum maternity policy. This applies to employees at all levels in every country in which we operate, including countries with little or no paid statutory maternity leave. Over 4,000 of our female employees have gone on maternity leave over the last two years; all were eligible to benefit from the policy, which offers at least 16 weeks fully paid maternity leave, plus full pay for a 30-hour week for the first six months.

We offer flexible working, part-time working and homeworking policies across many of our local markets – taking advantage of Vodafone’s remote working technologies – which are designed to make it easier for women and men to balance family and work commitments. Examples of individual local market flexible working practices include:

Vodafone Italy employees are encouraged to work from home for one day each week;
Vodafone Turkey employees benefit from flexible working hours and can choose earlier or later start or finish times to help them balance work and personal commitments; and
full-time employees of Vodafone India can take an unpaid sabbatical (from 90 days to more than one year) to look after children or family members or to develop skills and interests.

IFC, Handbook for Preparing a Resettlement Action Plan^{^[19]}

Special Assistance for Women and Vulnerable Groups

Women comprise a disproportionately large number of the poor in most countries. Gender discrimination limits women’s access to resources, opportunities, and public services necessary to improve the standard of living for themselves and their families. As a result, women are often the first to suffer when resettlement is planned or executed badly. Women tend to rely more heavily than men do on informal support networks, such as the help of friends, neighbors, or relatives for child care. Women with children also have less physical mobility to travel to find ways of earning a livelihood.

For these reasons, the sponsors’ efforts to maintain the social continuity of communities affected by a project—whether through the physical design of new sites, measures to prevent the disintegration of the community, or the provision of specialized social services at those sites—are important. Some of the immediate and practical initiatives that can be considered to improve women’s adaptation to the resettlement site include:

ensuring that land titles and compensation entitlements are issued in the name of both spouses;
reducing women’s workloads by providing, for example, standpipes, hand pumps, grinding mills, woodlots, fuel efficient stoves, ox carts, and plows;
improving health services by providing training for village midwives, primary health care centers, child spacing/family planning counseling, clean water supply, and sanitation training;
improving family services by providing immunizations, child care for wage-earning women, primary schools, inputs for food-crop production, and housing; and
increasing incomes by setting up credit groups, skills training, and access to markets.

However, the social or legal status of women is likely to remain circumscribed and, thus, their ability to improve their own and their family’s livelihoods will be compromised without longer-term “strategic” efforts to change gender discrimination. Some strategic initiatives that can improve women’s livelihoods in their new settings include:

improving educational opportunities (providing literacy and numeracy training, promoting girls’ education);
improving access to productive assets (credit, legal reform);
improving participation in decision-making (support for women’s interest groups); and
promoting equal opportunity for women’s employment.

BSR, Gender Equality in Social Auditing Guidance^{^[20]}

This guide provides practical guidance and tips for social auditors on how to identify gender-sensitive issues during a social audit. (…) The guide contains four sections: I) process for identifying and assessing gender-sensitive issues; II) gender-sensitive worker interview techniques; III) tips for reporting gender-sensitive issues; and IV) verification measures for different code-of-conduct categories.

Process for Identifying and Assessing Gender-Sensitive Issues

26. PROVISION OF SECURITY

Introduction

Main Aspects

Background

Bernard, Business, Violence and Conflict[1]

Instruments

Voluntary Principles on Security and Human Rights[2]

Voluntary Principles Initiative, Governance Rules[3]

Voluntary Principles Initiative, Corporate Pillar Verification Framework[4]

Voluntary Principles Initiative, Model Clauses[5]

Voluntary Principles Initiative, Implementation Guidance Tools[6]

Addressing Security and Human Rights Challenges in Complex Environments[7]

International Code of Conduct for Private Security Service Providers[8]

International Code of Conduct for Private Security Providers’ Association[9]

International Code of Conduct Association, Complaints

International Code of Conduct Association, Certification[10]

ICRC, The Montreux Document[11]

ICRC, The Montreux Document in a Nutshell[12]

UN, Guiding Principles on Business and Human Rights[13]

Freeport-McMoran, Voluntary Principles on Security and Human Rights Report[14]

Anglo American, Voluntary Principles on Security and Human Rights Report[15]

ICRC, Business and International Humanitarian Law[16]

ENODO Rights, Assessment of the Porgera Remedy Framework[17]

Background (Cambodia)

BNG, Legal Monthly Law Update[18]

Instruments (Cambodia)

Law on the General Statute of Military Personnel of the Armed Forces[19]

Sub-Decree on Management of Private Security[20]

Oxfam, Extractive Industries Program in Cambodia[21]

Global Witness, Sponsorship of Military Units by Private Business[22]

NGO Forum on Cambodia, Statistical Analysis of Land Disputes in Cambodia[23]

Global Witness, The Corporate Empire of the Cambodia’s Ruling Family[24]

NGO Forum on Cambodia, Free, Prior and Informed Consent[25]

FIDH & Licadho, Report for the Human Rights Committee’s Task Force[26]

Touch & Neef, Local Responses to Land Grabbing, Conflict and Displacement[27]

Hendrickson, Cambodia’s Security-Sector Reforms[28]

Spiegel, Land and ‘Space’ for Regulating Artisanal Mining in Cambodia[29]

Questions

Further Readings

16. FORCED LABOUR AND HUMAN TRAFFICKING

Main Aspects

Background

ILO, Global Estimates of Modern Slavery: Forced Labour and Forced Marriage[1]

Instruments

ILO, Forced Labour Convention[2]

ILO, Abolition of Forced Labour Convention[3]

ILO, Protocol to the Forced Labour Convention[4]

ILO, Forced Labour Recommendation[5]

ILO, Private Employment Agencies Convention[6]

International Covenant on Civil and Political Rights[7]

‘Palermo Protocol’ to the UN Convention against Transnational Organized Crime[8]

UN Office on Drugs and Crime, Elements of Human Trafficking[9]

UN, Sustainable Development Goals[10]

International Finance Corporation, Performance Standards[11]

UK, Modern Slavery Act[13]

California, Transparency in Supply Chains Act[14]

WTO, General Agreement on Tariffs and Trade[15]

US, Tariff Act[16]

Know the Chain, Forced Labor Action Compared[17]

Coca-Cola, Modern Slavery Statement[18]

Responsible Recruitment Gateway, Leadership Group for Responsible Recruitment[20]

ILO, Fair Recruitment Initiative[23]

Human Rights Watch, Hidden Chains – Forced Labor in Thailand’s Fishing Industry[25]

ILO, How Policy and Technology Can Impact Work in the Fishing Industry[26]

Jokinen & Ollus, Exploitation of Migrant Workers[27]

Raj-Reichert, The Powers of a Social Auditor in a Global Production Network[28]

Davidson, New Slavery and Human Trafficking[29]

Background (Cambodia)

Parliamentary Institute of Policy, Migration, Trafficking & Sexual Exploitation[30]

NCCT, Guidelines for Identification of Victims of Human Trafficking[31]

Instruments (Cambodia)

Constitution of the Kingdom of Cambodia[32]

Labor Law[33]

Law on Suppression of Human Trafficking and Sexual Exploitation[34]

MOU between Cambodia and Thailand on Cooperation for Eliminating Trafficking[35]

Nestle, Responsible Sourcing of Seafood at Nestle[37]

Thai Union, Transparency Statement under UK Modern Slavery Act[38]

Liberty Global Asia, Compensating Trafficking Victims in Thailand and Cambodia[39]

UNODC, Human Trafficking from Cambodia, Lao PDR and Myanmar to Thailand[40]

Urbina, ‘Sea Slaves’: The Human Misery That Feeds Pets and Livestock[41]

Bernard, Business, Violence and Conflict^{^[1]}

Voluntary Principles on Security and Human Rights^{^[2]}

Voluntary Principles Initiative, Governance Rules^{^[3]}

Voluntary Principles Initiative, Corporate Pillar Verification Framework^{^[4]}

Voluntary Principles Initiative, Model Clauses^{^[5]}

Voluntary Principles Initiative, Implementation Guidance Tools^{^[6]}

Addressing Security and Human Rights Challenges in Complex Environments^{^[7]}

International Code of Conduct for Private Security Service Providers^{^[8]}

International Code of Conduct for Private Security Providers’ Association^{^[9]}

International Code of Conduct Association, Certification^{^[10]}

ICRC, The Montreux Document^{^[11]}

ICRC, The Montreux Document in a Nutshell^{^[12]}

UN, Guiding Principles on Business and Human Rights^{^[13]}

Freeport-McMoran, Voluntary Principles on Security and Human Rights Report^{^[14]}

Anglo American, Voluntary Principles on Security and Human Rights Report^{^[15]}

ICRC, Business and International Humanitarian Law^{^[16]}

ENODO Rights, Assessment of the Porgera Remedy Framework^{^[17]}

BNG, Legal Monthly Law Update^{^[18]}

Law on the General Statute of Military Personnel of the Armed Forces^{^[19]}

Sub-Decree on Management of Private Security^{^[20]}

Oxfam, Extractive Industries Program in Cambodia^{^[21]}

Global Witness, Sponsorship of Military Units by Private Business^{^[22]}

NGO Forum on Cambodia, Statistical Analysis of Land Disputes in Cambodia^{^[23]}

Global Witness, The Corporate Empire of the Cambodia’s Ruling Family^[24]

NGO Forum on Cambodia, Free, Prior and Informed Consent^{^[25]}

FIDH & Licadho, Report for the Human Rights Committee’s Task Force^{^[26]}

Touch & Neef, Local Responses to Land Grabbing, Conflict and Displacement^{^[27]}

Hendrickson, Cambodia’s Security-Sector Reforms^{^[28]}

Spiegel, Land and ‘Space’ for Regulating Artisanal Mining in Cambodia^{^[29]}

ILO, Global Estimates of Modern Slavery: Forced Labour and Forced Marriage^{^[1]}

ILO, Forced Labour Convention^{^[2]}

ILO, Abolition of Forced Labour Convention^{^[3]}

ILO, Protocol to the Forced Labour Convention^{^[4]}

ILO, Forced Labour Recommendation^{^[5]}

ILO, Private Employment Agencies Convention^{^[6]}

International Covenant on Civil and Political Rights^{^[7]}

‘Palermo Protocol’ to the UN Convention against Transnational Organized Crime^{^[8]}

UN Office on Drugs and Crime, Elements of Human Trafficking^{^[9]}

UN, Sustainable Development Goals^{^[10]}

International Finance Corporation, Performance Standards^{^[11]}

UK, Modern Slavery Act^{^[13]}

California, Transparency in Supply Chains Act^{^[14]}

WTO, General Agreement on Tariffs and Trade^{^[15]}

US, Tariff Act^{^[16]}

Know the Chain, Forced Labor Action Compared^{^[17]}

Coca-Cola, Modern Slavery Statement^{^[18]}

Responsible Recruitment Gateway, Leadership Group for Responsible Recruitment^{^[20]}

ILO, Fair Recruitment Initiative^{^[23]}

Human Rights Watch, Hidden Chains – Forced Labor in Thailand’s Fishing Industry^{^[25]}

ILO, How Policy and Technology Can Impact Work in the Fishing Industry^{^[26]}

Jokinen & Ollus, Exploitation of Migrant Workers^{^[27]}

Raj-Reichert, The Powers of a Social Auditor in a Global Production Network^{^[28]}

Davidson, New Slavery and Human Trafficking^{^[29]}

Parliamentary Institute of Policy, Migration, Trafficking & Sexual Exploitation^[30]

NCCT, Guidelines for Identification of Victims of Human Trafficking^{^[31]}

Constitution of the Kingdom of Cambodia^{^[32]}

Labor Law^{^[33]}

Law on Suppression of Human Trafficking and Sexual Exploitation^{^[34]}

MOU between Cambodia and Thailand on Cooperation for Eliminating Trafficking^{^[35]}

Nestle, Responsible Sourcing of Seafood at Nestle^{^[37]}

Thai Union, Transparency Statement under UK Modern Slavery Act^{^[38]}

Liberty Global Asia, Compensating Trafficking Victims in Thailand and Cambodia^{^[39]}

UNODC, Human Trafficking from Cambodia, Lao PDR and Myanmar to Thailand^{^[40]}

Urbina, ‘Sea Slaves’: The Human Misery That Feeds Pets and Livestock^{^[41]}

Zimmerman et al, Health and Human Trafficking in the Mekong Sub-Region^{^[42]}

ILO, Wages^{^[1]}

ILO, Minimum Wages^{^[2]}

Marinakis, The Role of ILO in the Development of Minimum Wages^{^[6]}

The Universal Declaration of Human Rights^{^[7]}

International Covenant on Economic, Social and Cultural Rights ^{^[8]}

ILO, Minimum Wage Fixing Convention^{^[9]}

ILO, Minimum Wage Fixing Recommendation^{^[10]}

ILO, Declaration on Social Justice for a Fair Globalization^{^[11]}

ILO, Minimum Wage Policy Guide^{^[12]}

ILO, Labour Protection in a Transforming World of Work^{^[13]}

ILO, Global Wage Report^{^[14]}

Global Living Wage Coalition, Methodology for Estimating a Living Wage^{^[15]}

ACT (Action, Collaboration, Transformation)^{^[16]}

Ethical Trading Initiative, A Living Wage for Workers^{^[18]}

Nike, Sustainable Business Report^{^[19]}