International Labour Organization Protocol of 2014 to the Forced Labour Convention, 1930 (No. 29)
Introduction
2.1
This chapter examines the International Labour Organization Protocol of 2014 to the Forced Labour Convention, 1930 (No. 29) (the Protocol), which was adopted on 11 June 2014 and entered into force on 9 November 2016.
2.2
Globally, forced labour is addressed in two key conventions: the Forced Labour Convention, 1930 (Forced Labour Convention) outlaws forced labour for the benefit of private individuals, companies or associations; and the Abolition of Forced Labour Convention, 1957 (Abolition of Forced Labour Convention) outlaws forced labour imposed by state authorities, with very limited exceptions.
2.3
The purpose of the Protocol is to address gaps in the implementation of the two existing conventions, particularly as the context and forms of forced labour have changed—there has been a growth in trafficking in persons for forced labour, and the number of workers in forced labour in the private economy is increasing.
Background
What is forced labour
2.4
According to the Forced Labour Convention, forced or compulsory labour is:
… all work or service which is extracted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily.
2.5
The three elements of the definition are interpreted by the International Labour Organization (ILO) as follows:
Work or service—encompasses all types of work, service and employment in any activity, industry or sector, including the informal economy, in public and private sectors.
Menace of any penalty—inclusive of a wide range of penalties used to compel someone to perform work or service, such as: penal sanctions; forms of direct or indirect coercion (physical violence, psychological threats, non-payment of wages); loss of rights or privileges (promotion, transfer, access to new employment).
Involuntariness—offered voluntarily means the free and informed consent of a worker to enter into an employment relationship and freedom to leave the employment at any time. This aspect deals with a range of scenarios, including an employer or recruiter making false promises to induce a worker to take a job that the person would not otherwise have accepted.
2.6
According to the ILO:
Forced labour can be imposed to adults and children, by State authorities, by private enterprises or by individuals. It is observed in all types of economic activity, such as domestic work, construction, agriculture, manufacturing, sexual exploitation, forced begging, etc. and in every country.
Modern slavery
2.7
Some studies classify forced labour as part of a broader category—modern slavery. Walk Free defines modern slavery as:
… including forced labour, debt bondage, forced marriage, slavery and slavery-like practices, and human trafficking … 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 conventions
2.8
Australia has ratified the two significant ILO conventions that prohibit forced or compulsory labour. These are sometimes referred to as the ‘forced labour conventions’:
Convention 29: Forced Labour Convention
Convention 105: Abolition of Forced Labour Convention.
Forced Labour Convention
2.9
The Forced Labour Convention outlaws, without exception, forced labour for the benefit of private individuals, companies or associations. A small number of exceptions for state-induced labour are permitted. Article 2 specifies forced labour does not include:
compulsory military service
prison labour (in some circumstances)
work in cases of emergency (such as war or natural disaster)
2.10
Amongst other things, Members:
undertake to suppress the use of forced or compulsory labour in all its forms within the shortest possible period
must ensure the illegal extraction of forced or compulsory labour is punishable as a penal offence
must make certain that penalties imposed by law are ‘really adequate and strictly enforced’.
Abolition of Forced Labour Convention
2.11
Focussing on practices that emerged following World War II, the Abolition of Forced Labour Convention primarily addresses forced labour imposed by state authorities. Members to the convention undertake 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.
Rationale for the Protocol
2.12
In 2007, a general survey conducted by a committee of experts for the United Nations International Labour Office found that despite the principles embedded in the forced labour conventions finding ‘practically universal acceptance and endorsement’, and becoming an ‘unalienable part of the fundamental rights of human beings’, there remained at least an estimated 12.3 million victims of forced labour around the world. Forced labour was found to be present in some form on all continents, in almost all countries, and in every kind of economy.
2.13
By 2016, the ILO estimated around 21 million men, women and children were in forced labour around the world; 90 per cent were exploited in the private economy generating an estimated US$150 billion in profits. The Protocol itself states the number of workers in forced labour has increased.
2.14
According to the ILO, whilst the two forced labour conventions have played a role in combatting forced or compulsory labour there remain issues to be addressed:
there are gaps in the implementation of the two conventions
context and forms of forced or compulsory labour have changed
there is growing concern about trafficking in persons for forced labour which may involve sexual exploitation
an increased number of workers are in forced labour in the private economy
certain groups, particularly migrants, have a higher risk of becoming victims of forced labour.
Modern slavery and forced labour in the region
2.15
In its 2018 Global Slavery Index, Walk Free estimated across the Asia-Pacific almost 25 million people were in modern slavery, almost 16.5 million of whom were in forced labour. The region has the second highest prevalence of modern slavery in the world, and accounts for almost half the global estimated number of victims of forced labour.
Modern slavery in Australia and in Australian supply chains
2.16
In its submission to the inquiry, the Australian Red Cross characterised forced labour as ‘under-reported, under-detected and under-prosecuted’ in Australia. The Australian Government has estimated that for every victim of modern slavery in Australia, ‘four go undetected’.
2.17
In 2021, the Australian Federal Police received 43 reports of forced labour, five reports of debt bondage and three reports of deceptive recruiting. By comparison, the Global Slavery Index estimated the absolute number of victims of modern slavery in Australia was 15,000 with a prevalence of 0.6 per 1,000 population. This compares to a rate in the region of 6.1/1,000. An earlier study between 2015 and 2017 suggested the number was up to 1,900 victims across Australia.
2.18
Various forms of modern slavery, including forced labour, are known to occur in Australia. According to Walk Free, there are instances of modern slavery in the homes of diplomats in Australia, and women are trafficked from Malaysia to Australia for commercial sexual exploitation. The Human Rights Law Centre stated there are known systemic issues of underpayment and exploitation of vulnerable workers in sectors including horticulture, meat processing, and cleaning.
2.19
The Australian Government’s National Action Plan to Combat Modern Slavery 2020-25 provides the following examples of modern slavery in Australia: slavery in brothels, trafficking of chefs, forced marriage of underage girls, and servitude in private homes. Australian Border Force told the Committee sectors where forced or compulsory labour was most prevalent in Australia included information technology (IT) hardware, cleaning, security, construction, and textiles sectors.
2.20
According to Walk Free, imports to Australia at risk of modern slavery in their supply chains include fish (from China, Ghana, Indonesia, Japan, Russia, South Korea, Taiwan, Thailand), Rice (from India), and cocoa (from Côte d’Ivoire, Ghana).
2.21
The Human Rights Law Centre stated each year nearly $15.5 billion worth of goods at risk of being made using forced labour end up on Australian shelves. The Centre identified forced labour in the supply chains of garments from China, gloves from Malaysia, horticultural produce from Australia, and seafood from Thailand.
Reasons for Australia to ratify the Protocol
2.22
Australia has been considering ratification of the Protocol since 2014. The National Interest Analysis (NIA) provides several reasons for Australia to ratify the Protocol. According to the NIA, ratification would:
enhance Australia’s standing in the international community and ability to address the practices authoritatively, particularly in the Asia-Pacific region
reflect Australia’s global leadership on modern slavery and forced labour issues
allow Australia to provide policy leadership in the Asia-Pacific region, including through the Bali Process on Trafficking in Persons and Related Transnational Crime, and its associated Government and Business Forum.
Provisions in the Protocol
Requirement to take effective measures
2.23
Article 1 of the Protocol reaffirms the definition of forced labour in the Forced Labour Convention, and states that measures required to be taken under the Protocol include specific action against trafficking in persons for the purposes of forced labour.
2.24
The Protocol requires Members to ‘take effective measures’ to:
prevent and eliminate forced labour
provide victims protection and appropriate and effective remedies, such as compensation
2.25
Members are to develop a ‘national policy and plan of action’ in consultation with employers’ and workers’ organisations, and it must involve systematic action by the competent authorities to combat forced labour.
Mandatory actions to be taken
2.26
Article 2 requires six specific actions to be taken to prevent forced labour:
educating and informing people to prevent them becoming victims
educating and informing employers to prevent their involvement
ensuring appropriate legislation that applies to all workers and sectors of the economy, and services for implementation of the legislation are strengthened
protecting persons from possible abusive and fraudulent practices during the recruitment and placement process
supporting due diligence by the public and private sectors to prevent and respond to risks of forced labour
addressing the root causes and other factors that heighten risks of forced labour.
Responsibility to victims of forced labour
2.27
The protocol establishes a number of responsibilities to victims, including:
taking effective measures for the identification, release, protection, recovery and rehabilitation of victims of forced labour
providing access to appropriate and effective remedies (such as compensation) to all victims of forced labour, regardless of their legal status in the national territory
taking necessary measures to ensure competent authorities are entitled not to prosecute or penalise victims for their involvement in unlawful activities when compelled to as a direct consequence of being subjected to forced labour.
Cooperation
2.28
Members are to cooperate to ensure the prevention and elimination of all forms of forced labour.
Making of national laws and regulations
2.29
Following consultations with employer and worker organisations, Members are to apply the provisions of the Protocol and Forced Labour Convention through national laws or regulations.
Deletion of transitional provisions
2.30
Article 7 of the Protocol removed a number of articles called the ‘transitional provisions’ from the Forced Labour Convention, specifically Articles 1(2), 1(3), and 3-24. The ILO stated ‘[t]he initial aim of Convention No. 29 [Forced Labour Convention] was to progressively abolish forced labour in colonial territories, while requiring the immediate suppression of forced labour for private purposes’.
2.31
Accordingly, under Article 1(2), recourse to forced or compulsory labour was permitted during the transition period for public purposes only and as an exceptional measure, subject to the conditions and guarantees specified in the Forced Labour Convention, predominantly in Articles 3-24.
2.32
The Forced Labour Convention originally provided in Article 1(3) and Article 31, for a transitional period of five years, at the conclusion of which the International Labour Office was to prepare a report on the possibility of the suppression of forced or compulsory labour in all its forms without a further transitional period.
Ratification and denunciation
2.33
Members ratify the Protocol by communicating their formal ratification to the Director-General of the International Labour Office, who then passes this information to the Secretary-General of the United Nations. The Protocol comes into effect for a Member 12 months after the date on which its ratification is registered.
2.34
Similarly, a Member may denounce the Protocol under certain circumstances and at prescribed times, and any denunciation comes into effect one year after the date on which it is registered.
Implementing the Protocol
2.35
During the inquiry, the Committee was told established practice is to ensure Australia is in compliance with its international obligations prior to ratifying any treaty. Accordingly, the NIA stated, ‘[l]aw and practice at the Commonwealth, State and Territory levels is consistent with Australia’s obligations under the Protocol’ and all state and territory jurisdictions would be in a position to comply with the Protocol upon its entry into force. As a consequence, the Attorney-General’s Department predicted there would be no costs associated with ratification of the Protocol.
2.36
In its NIA, the Australian Government nominated a number of measures that demonstrated its compliance with the Protocol and commitment to ongoing action to address forced labour in Australia and the Asia-Pacific region, including:
Fair Work Act 2009—establishes minimum employment conditions and standards, coving all employees under Australia’s national industrial relations system regardless of visa status, and specific protections for vulnerable workers
Modern Slavery Act 2018—sets a standard for business action to address modern slavery in their global operations and supply chains, including submitting annual modern slavery statements to the Australian Border Force for publication, and requires the Australian Government to prepare an annual modern slavery statement
National Action Plan to Combat Modern Slavery 2020-25—establishes the strategic framework for Australia’s national response to modern slavery, including five strategic priorities and 46 action items
Support for Trafficked People Program—provides support services to victims of human trafficking, slavery and slavery-like offences identified and referred by the Australian Federal Police
Human Trafficking Visa Framework—enables foreign nationals, who do not already hold a valid visa and are suspected victims of human trafficking, slavery and slavery-like practices, to remain lawfully in Australia for an initial period of rest and recovery, to assist with criminal justice processes and, in some circumstances to remain in Australia permanently
a range of criminal offences that criminalise human trafficking, slavery and slavery-like practices.
2.37
Other programs and authorities provide education, promote compliance with laws, and operate specialist teams to address modern slavery and human trafficking. Specific arrangements provide for:
temporary visa holders who have breached the work-related conditions on their visa because of exploitation to avoid having their visa cancelled as long as they meet certain criteria, including approaching the Fair Work Ombudsman for assistance
victims not to be prosecuted for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour, including through the Commonwealth Director of Public Prosecutions Prosecution Policy of the Commonwealth, and the availability of certain defences
victims, through state and territory jurisdictions, to access victims of crime compensation schemes, or through the Fair Work Ombudsman and Fair Work Commission to pursue civil and administrative remedies.
2.38
Australia cooperates with governments internationally through a range of fora to combat forced and compulsory labour, including:
participating in the Bali Process and its various forums and working groups
supporting the Tripartite Action to Enhance the Contribution of Labour Migration to Growth and Development (TRIANGLE) in the Association of Southeast Asian Nations (ASEAN)
funding ASEAN-Australia Counter Trafficking.
2.39
Notwithstanding the range of programs and initiatives, Australian Border Force acknowledged ‘there is further work that is being done and needs to be done’. This work is detailed in the Australian Government’s National Action Plan to Combat Modern Slavery 2020-25.
Views on implementing the Protocol
2.40
Submitters to the inquiry supported ratification of the Protocol. The NSW Council for Civil Liberties stated:
Modern Slavery denies the victims access to some of the most basic of civil liberties … For Australia to ratify the convention would be to confirm that these rights and liberties should be available for all workers and that lack of freedom, lack of wages and dangerous conditions in the workplace are neither acceptable or legal in our society.
2.41
The efficacy of existing measures to identify and eliminate forced labour in Australia was however questioned by some submitters, and submitters agreed work remained to be done, particularly in addressing root causes. Though there appears to be significant government action to address modern slavery, the Human Rights Law Centre suggested the measures being taken may not be addressing the factors that allow forced labour to exist and persist in Australia.
2.42
Characterising forced labour as being on a spectrum of systemic exploitation rather than an isolated phenomenon in itself, the Australian Council of Trade Unions (ACTU) stated the criminal justice focus of the National Action Plan to Combat Modern Slavery 2020-25 would not solve the problem because at its core, forced labour is not just a criminal justice issue, it is about labour rights.
2.43
Submitters argued a range of structural issues had to be addressed, including migration policy and visa conditions (including allowing migrant workers to change employers), the regulation of labour hire companies, payment practices that undercut the minimum wage, the ability of unions to enter workplaces, whistle-blower protections, and the prioritisation of modern slavery risks in government tender and procurement processes.
2.44
The Australian Red Cross called for expanding referral pathways for support programs beyond the Australian Federal Police and added combating forced labour could be strengthened ‘by ensuring that safe and accessible protections and supports are available to everyone, including people in rural and remote parts of the country where barriers to report and identify labour exploitation are intensified’.
Modern Slavery Act
2.45
The Australian Border Force welcomed a recently published report that examined the early implementation of the Modern Slavery Act 2018 (Modern Slavery Act). The report, which was the outcome of a two-year collaborative project between a range of organisations and universities, found while there were some leading companies taking a detailed and rigorous approach to reporting obligations and actions to address modern slavery risks, of the sample:
77 per cent of companies were failing to comply with mandatory reporting requirements
52 per cent of companies were failing to identify or disclose obvious modern slavery risks
only 27 per cent of companies were demonstrating some form of effective action to address modern slavery risks in their operations and supply chains.
2.46
Submitters noted the absence of enforcement or oversight mechanisms in the Modern Slavery Act. The Human Rights Law Centre recommended the Act be strengthened through the introduction of penalties for noncompliance with mandatory reporting criteria and for providing false or misleading information.
2.47
However, while the Australian Government acknowledged approximately 40 per cent of entities reporting under the Modern Slavery Act had not met one or more mandatory reporting criteria, during the first reporting cycle it was taking an ‘approach of uplift’ to educate and improve the capability of entities to comply with the Act.
Consultation
2.48
The NIA stated the Australian Government has consulted with state and territory governments at ministerial and official levels over a number of years, starting with the opportunity comment on draft texts of the Protocol.
2.49
The Protocol has also been discussed at meetings of the International Labour Affairs Committee of the National Workplace Relations Consultative Council since 2014. The NIA stated ratification of the Protocol is supported by the ACTU and the Australian Chamber of Commerce and Industry.
Committee comment
2.50
Forced labour should, without exception, be outlawed and the Committee agrees with sentiments expressed by the International Labour Office that the principles embedded in the forced labour conventions should be an ‘unalienable part of the fundamental rights of human beings’.
2.51
It is nevertheless the case that no continent or region in the world is free of forced labour and our region, the Asia-Pacific, accounts for almost half the global estimated number of victims of forced labour.
2.52
According to the ILO, across the world, an increased number of workers are in forced labour in the private economy. Evidence to the Committee noted perpetrators of forced labour can be highly sophisticated; they change their methodologies to evade detection, investigation and prosecution. Despite this, Australia’s comprehensive approach to combatting forced labour means perpetrators continue to be identified, prosecuted and convicted by Australian courts.
2.53
Australia’s commitment to eliminating forced labour is clear and unequivocal. The Committee notes the Australian Government is already compliant with the provisions of the Protocol. It has adopted a range of programs and initiatives that while necessarily having a strong criminal focus, are complemented by a victim-centred approach to support those found to have been victims of forced labour.
2.54
The Committee acknowledges that notwithstanding the progress being made to address forced labour, there is further work to be done, and is encouraged to see the detail of future action in the Australian Government’s National Action Plan to Combat Modern Slavery 2020–25.
2.55
The Committee is of the view that if a significant proportion of entities reporting under the Modern Slavery Act continue to miss mandatory reporting requirements, the Australian Government should consider steps beyond the current approach of educating and encouraging relevant entities.
2.56
The Committee is of the view ratifying the Protocol is in the national interest. Ratification would reflect Australia’s global leadership on modern slavery and forced labour issues, emphasise its commitment to necessary further improvement, and enhance its ability to address the practices authoritatively, particularly in the Asia-Pacific region.
2.57
The Committee supports the proposed International Labour Organization Protocol of 2014 to the Forced Labour Convention, 1930 (No. 29) and recommends binding treaty action be taken.