The International Labour Organization (ILO) recently issued recommendations to Thailand to bring it in line with anti-slavery and forced labor provisions in the ILO Forced Labour Convention in response to allegations on the use of forced labor in the fishing industry, which has also been the topic of a lawsuit in the United States and of international pressure. [Guardian: Lawsuit; Guardian: ILO] Specifically, the submission to the ILO – referred to as a representation – alleged the forced labor and trafficking in persons of migrant workers from Myanmar, Cambodia, and the Lao People’s Democratic Republic, and alleged that fishers are subject to 20-hour work days, non-payment of wages, debt bondage, physical abuse, and murder. See International Labour Office, Sixth Supplementary Report: Report of the Committee set up to examine the representation alleging non-observance by Thailand of the Forced Labour Convention, 1930 (No. 29), made under article 24 of the ILO Constitution by the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF) (2017), paras. 1, 7, 10. Additionally, the representation argues that violations in Thailand are due to a “weak legislative framework, the lack of effective complaints mechanisms, and the ineffectiveness of law enforcement mechanisms.” See id. at para. 9. The ILO committee that was set up to examine the present representation recommended improving labor inspections and legal enforcement of existing legislation, preventing and punishing illegal recruitment processes, and addressing illegal employment practices. See id. at paras. 60-68, 71-77. The ILO Forced Labour Convention requires States parties to “undertake to suppress” forced labor and to enforce penalties for engaging in forced labor.
ILO Committee Report
Allegations in the Representation
In alleging the existence of forced labor, the representation, submitted by the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation’s (ITF), considered the ILO’s factors associated with forced labor: the abuse of vulnerability, non-decent working and living conditions, and excessive overtime. See id. at para 53. First, the ITUC and ITF make clear that gaps remain under Thailand’s existing legal framework, particularly, by not regulating brokers that provide migrant labor in Thailand and by failing to enforce anti-trafficking laws. See id. at para. 12. The representation offered examples of migrant workers who were falsely promised onshore work, charged for transportation, felt they had no choice but to accept the work on a fishing boat for fear of deportation and debt, and, in some cases, were “sold off” to fishing boat captains. See id. at para. 15.
The most significant issue, the representation noted, is inadequate labor inspection and enforcement of existing protections, evidenced by Thailand’s failure to inspect the worst known offenders, language barriers during inspections, and the legal environment that allows for exploitation. See id. at para. 23.
Further, the ITUC and ITF allege corruption among government officials, an absence of written employment contracts, trafficking in persons, the confiscation of identity documents, the non-payment of wages, exploitative working conditions, and the use of physical and psychological violence. See id. at paras. 16-21. According to the representation, these violations are exacerbated by ineffective identification of victims, a lack of information on preventative measures, and lengthy legal processes that may deter cases from being brought. See id. at para. 22.
Thailand shared the steps it has taken to revise and enact laws regulating these issues. Those steps include the enactment of the second Amendment to the Anti-Trafficking Act in 2015, which aims to increase reporting and penalties related to trafficking offenses; the Royal Ordinance on Fishers in 2015, which aims to better regulate commercial fishing vessels; and the Human Trafficking Criminal Procedure Act of 2016, which aims to increase effective prosecution of human trafficking cases. See id. at paras. 26-31.
Thailand also provided information on the current development of measures that would strengthen its national legal framework, including a draft ordinance that would regulate the recruitment of migrant labor, and a draft amendment that would increase penalties for child labor violations. See id. at paras. 32-33. Thailand has revised four areas of its law enforcement; it has developed the labor inspection system, provided heavier penalties, prevented unlawful recruiting practices, and installed a system for monitoring and inspecting fishing vessels. See id. at paras. 34-42.
Committee Conclusions & Recommendations to Thailand
The committee concluded that the representation implicated articles 1(1), 2(1), and 25 of the Forced Labour Convention on Thailand’s obligation to suppress forced labor and on the obligation to enforce penalties for engaging in forced labor practices. See id. at para 52. Based on the information in the representation and from the State, the committee issued recommendations to address, in particular, labor inspection and enforcement, recruitment, and employment practices. See id. at paras. 60-78. Additionally, the committee recommended that Thailand enhance international cooperation on labor issues to prevent forced labor. See id. at para. 77.
The committee issued several recommendations to address labor inspection and enforcement. The committee urged Thailand to initiate random inspections, provide training for labor inspectors and law enforcement to better identify the signs of forced labor, and hire more inspectors with relevant language skills to enable communication with migrant workers in the industry. See id. at paras. 64, 71. Additionally, the committee recommended increasing sanctions for violations of existing laws, including criminal sanctions for repeat offenders, and raising workers’ awareness of their legal rights. See id. at paras. 74, 76.
Regarding recruitment, the committee emphasized that brokers and the payment of recruitment fees contribute to the increased vulnerability of migrant fishers. It, therefore, encouraged Thailand to work with countries of origin to prevent the use of brokers and to adopt the pending bill regulating recruitment. See id. at para. 60. Further, it recommended that Thailand strengthen deterrent penalties, and provide adequate verification that signed contracts conform to the original offer consented to. See id. The committee requested the urgent action of Thailand to punish all officials involved with human traffickers. See id. at para. 62.
To address ongoing problems in employment practices, the committee addressed the handling of identity documents, physical harm to workers, and healthcare. The committee urged Thailand to make the confiscation of identity documents illegal, and to investigate and punish those responsible for taking the documents. See id. at para. 65. The committee encouraged Thailand to apply appropriate sanctions to perpetrators of physical harms and supported strengthening measures that ensure implementation of existing health related legislation, particularly by providing workers with medical supplies and adequate food and water. See id. at paras. 68, 70. Furthermore, the committee also requested information on the concrete measures taken to address non-payment of wages, including information on how penalties are applied to non-compliant employers. See id. at para. 66.
Committee Recommendations to the Governing Body
Drawing on the abovementioned conclusions, the committee offered several recommendations to the ILO Governing Body – the executive body of the ILO – including approving the report and making it public; requesting that Thailand consider the committee’s conclusions; inviting Thailand to continue to seek technical assistance from the ILO; and recommending that Thailand report the measures taken to realize the committee’s recommendations. See id. at para. 78.
ILO Compliance Procedures
The ILO has various mechanisms in place to supervise Member States’ implementation of international labor standards. See International Labour Organization, Applying and promoting International Labour Standards. The ILO examines compliance with international labor standards through periodic reports submitted by Member States that describe the State measures taken to implement the standards, and through the examination of allegations of noncompliance with ILO standards. The latter is what the ILO refers to as its “special procedures” system, which includes a representation procedure and a complaints procedure. See id.
The present report was submitted pursuant to the ILO’s representation procedure. This procedure, which is delineated in articles 24 and 25 of the ILO Constitution, allows representations to be brought before the ILO Governing Body against a Member State. The representation must be brought by industrial associations of employers or workers and may be submitted when a Member State has “failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party.” See International Labour Organization, Representations. Representations must be deemed “receivable,” before the case can be considered on its merits, which requires that the representation is sufficiently precise to substantiate proposals to the Governing Body. See International Labour Organization, Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the International Labor Organization.
If deemed receivable, a three-member committee will review the representation and the State’s response. The committee then issues a report that provides legal and factual aspects of the case, an analysis of evidence submitted, and recommendations to the State concerned and the Governing Body. The Governing Body then considers the issues raised in the representation, and may take additional steps, such as publishing the representation; publishing the State’s response; referring the representation to the complaints procedure in accordance with Article 26 of the ILO Constitution, under which the Governing Body may form a Commission of Inquiry that will conduct a full investigation; and referring issues related to the implementation of recommendations to the Committee of Experts on the Application of Conventions and Recommendations, who can monitor the State’s implementation of the recommendations adopted by the Governing Body. See International Labour Organization, Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the International Labor Organization.
The ILO’s complaints procedure, described in articles 26 and 34 of the ILO Constitution, accepts allegations from a Member State against another Member State on noncompliance with an ILO convention that neither State has ratified. Where the complaint alleges “persistent and serious” violations, the Governing Body may form a Commission of Inquiry, of which it has only formed 11. Noncompliance with a Commission of Inquiry recommendation may result in action taken by the Governing Body under Article 33 of the ILO Constitution. See International Labour Organization, Complaints.
Background on the Situation of Forced Labor in Thailand
Allegations of human rights violations within the seafood industry in Thailand have gained international attention; in 2014 Thailand was “downgraded” in the Trafficking in Persons report, and in 2015 Thailand was cautioned by the European Union to improve its record, or face a ban on EU imports. [Guardian: ILO] Additionally, in June of 2016, a civil lawsuit was filed in the United States, accusing four firms from the United States and Thailand of violating the U.S. Trafficking Victim Protection Act. [Guardian: Lawsuit]
The ILO is a specialized UN agency composed of 187 Member States tasked with developing and promoting international labor standards.