EN Official Journal of the European Union C 311/31

Opinion of the European Economic and Social Committee on combating forced labour in the EU and the world: the role of the EU — the EESC's contribution to the 2014 ILO conference (own-initiative opinion)

2014/C 311/05

Rapporteur: Béatrice Ouin

At its plenary session of 11 December 2013, the European Economic and Social Committee decided, under Rule 29(2) of its Rules of Procedure, to draw up an own-initiative opinion on

Combating forced labour in the EU and the world: the role of the EU — the EESC's contribution to the 2014 ILO conference.

The Section for External Relations, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 10 April 2014.

At its 498th plenary session, held on 29 and 30 April 2014 (meeting of 30 April), the European Economic and Social Committee adopted the following opinion by 167 votes, with one abstention.

1. Conclusions and recommendations

Human trafficking has no place in a civilised society. It is nevertheless on the rise and forced labour has become a permanent fixture in certain labour market sectors and a big market for organised crime. The agenda of the 103rd Session of the International Labour Conference, to be held in June 2014, includes a debate on stepping up action to combat forced labour. The nature of forced labour has evolved since the first International Labour Organisation conventions on this issue were adopted in 1929 (C029) and 1957 (C105). Whereas in the past it was mainly state-imposed, today it is concentrated in the private economy and is growing as a consequence of globalisation, migration, the informal economy and international crime networks. The European Union has adopted a directive on human trafficking that takes account of forced labour (1). A new international instrument should be adopted by the Member States and the ILO social partners next June. In this context, the European Economic and Social Committee has a number of recommendations to make based on Europe's experience within and beyond its borders, emphasising in particular the role that civil society plays and could further expand in promoting the effective enforcement of fundamental rights. The Labour Market Observatory will be tasked with monitoring progress on the application of the directive on trafficking in human beings as well as the ILO conventions on forced labour.

1.1 Recommendations

1.2 For the European Union, to: Adopt a joint position with the ILO to ensure that the objectives of the EU Directive on preventing and combating trafficking in human beings and protecting its victims and the EU Strategy towards the Eradication of Trafficking in Human Beings (2) (2012) are incorporated in international labour law.

1.3 For the Member States — Adopt — at the next International Labour Conference — an additional protocol to Convention 29, complemented by a recommendation, incorporating human trafficking for labour exploitation, and closing its loopholes in the areas of prevention and victim protection and compensation, and penalties for traffickers, thereby adopting international provisions that already exist in EU law. — Ratify the Domestic Workers Convention (C189). — Increase resources for labour inspections and establish European cooperation between them. — Establish consistency between human trafficking and immigration policies and ensure the enforcement of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (3). — Address the causes by reducing poverty and the victims' vulnerability and raising public awareness.

1.4 For employer businesses and investors — Ensure that the supply chain is free of forced labour and respects human rights in Europe and in third countries by applying the OECD Guidelines for Multinational Enterprises and the ILO tripartite declaration of principles concerning multinational enterprises and social policy. — Follow the progress and participate in the Business Coalition against trafficking in human beings, soon to be established by the European Commission.

1.5 For trade union organisations Provide training for affiliates on how to interact with victims and support them in taking action, especially in susceptible sectors such as agriculture, construction, catering and hospitality or domestic work. Work with NGOs specialised in providing support for undocumented migrants, who should be seen as victims, not criminals.

1.6 For third sector associations Consumer associations should attach importance to the origin of products and insist on the transparency of the entire manufacturing chain. Associations that assist irregular migrants and organise domestic workers or that work to abolish prostitution should be recognised and consulted as partners in the fight against forced labour.

2. General comments

2.1 Forced labour: what does it mean?

Article 2 of ILO Convention 29, ratified by 177 countries, defines forced labour as ‘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’. This definition encompasses detainees in labour camps, bonded labourers, human trafficking for forced labour (workers whose salaries and identity documents have been withheld, etc.). It is difficult to distinguish between labour exploitation and forced labour. According to the ILO, forced labour generally involves toiling for long hours under harsh conditions for little or no pay and is undertaken involuntarily and exacted under threat of penalty. This threat may manifest itself as physical abuse — beatings, torture, or sexual assault — or psychological abuse — the withholding of identity documents and threats of denunciation to the immigration authorities or of reprisal against families, etc. (4) Yesterday's chains of slavery have been replaced with fear and financial coercion.

Forced labour is also defined as a form of exploitation in Directive 2011/36/EU on human trafficking.

2.2 Forced labour: where does it happen?

Domestic work, farming, construction, manufacturing (textiles, toys) are among the most susceptible sectors. Although forced labour in the private sector is essentially a clandestine activity, it is finding its way into the formal economy through sub-contracting and recruitment agencies. As a result, forced labour is infiltrating the supply chain of private groups, including very large groups. In such cases, forced labour usually occurs outside the EU, and the worst affected part of the world is the Asia-Pacific region (56 %). Central and Southern Europe and the Commonwealth of Independent States are the regions with the highest prevalence of forced labour in the world (4,2/1 000 inhabitants). Thirteen of the nineteen countries in this region are on the EU's doorstep. However, contrary to widespread belief, the EU and industrialised countries are not free of forced labour (7 %) (5). Instances of forced domestic or farm labour have been identified in all EU countries. Adults and children are also forced into illicit or informal economic activities, including begging. These figures must be compared with the figures for corruption in the EU, which makes action against forced labour all the more difficult.

2.3 Forced labour: who are its victims?

Although irregular migrants are not the only victims of forced labour, there is no question that they are the most at risk and make up the majority of its victims. Caught in a vicious circle, these victims dare not complain for fear of being repatriated. Traffickers are often irregular migrants themselves, who exploit their compatriots. Ethnic or racial minorities, migrants and the financially disadvantaged are the most exposed to forced labour, and within these groups, women and children. Women make up the majority of victims trafficked for the purposes of sexual exploitation as well as for domestic work, where they are isolated. The victims are often vulnerable people who are not in trade unions and unable to defend and protect themselves. The growth of the informal economy creates opportunities for traffickers. Poor labour inspection and policing make it impossible to stem its expansion.

The economic crisis which took hold of Europe in 2008 has led workers to seek employment in wealthier countries. These skills are now lacking in their countries of origin, which have had to call on migrants from even further afield, who are also in search of better living conditions. They are faced with difficulties they never imagined, having no papers, no job security, no social protection and no possibility of returning to their countries. This situation, which undermines many families, is a fertile seedbed for human traffickers.

2.4 Forced labour in figures

— Globally, according to a recent ILO estimate in 2012, about 21 million people are victims of forced labour, 58 % of them women and girls. A quarter of victims are minors under 18 years of age. Almost 19 million are exploited by individuals or private enterprises and over 2 million by States or rebel armed forces. Out of those exploited by individuals or private enterprises, 4,5 million are victims of forced sexual exploitation. According to these ILO figures, the average duration of forced labour is 18 months.

Contrary to received wisdom, 2013 Eurostat figures on human trafficking in Europe show that the majority of victims identified in the Member States between 2008 and 2010 — i.e. 61 % — were EU citizens. Similarly, the majority of prosecuted traffickers had EU citizenship (67 % in 2008, 76 % in 2010) (6). Nevertheless, the percentage of identified and presumed victims from non-EU countries trebled between 2008 and 2010, rising from 12 % to 37 %, which confirms that migration from third countries is a vulnerability factor. The highest figures for identified and presumed victims of human trafficking in 2010 were reported by Italy (2 381), Spain (1 605), Romania (1 154) and the Netherlands (993) and the lowest figures by Hungary (10), Portugal (8), Malta (4) and Lithuania (3) (7). In the EU Member States, out of a total estimated number of 8 80 000 people in forced labour, 2 70 000 (30 %) are victims of forced sexual exploitation and 6 10 000 (70 %) of forced labour (8).

2.5 Human trafficking: how does it work?

The link between human trafficking and forced labour is strong and recognised in the relevant literature (even though the victims of forced labour are not all victims of trafficking). Migration is triggered by poverty and/or armed conflict and imbalances in development between neighbouring regions. Traffickers use deception, threats and debts. Victims are often recruited, transported or harboured by force, coercion or fraud. The existence and manipulation of debt is used to gain and maintain control over a person. Migrant workers often borrow large amounts to pay the trafficker for organising transport, obtaining travel documents and securing a job. Prospective migrants borrow these sums from friends or relatives on the basis that they will subsequently be able to support their families and provide for their futures. The thought of returning home without being able to repay their debt is inconceivable for most migrant workers even when they find that the job they were promised does not exist and are faced with working in exploitative conditions for an indefinite period. They have to pay exorbitant sums of money for their passports and transport, and then for accommodation and food. In many countries, irregular migrant workers have no access to justice (9).

2.6 The consequences of forced labour

In addition to infringing human rights, forced labour penalises businesses and workers. Honest businesses are faced with unfair competition from others that utilise products involving the use of forced labour. As for workers, forced labour exerts downward pressure on wages and working conditions and on funds for social solidarity.

2.7 Forced labour: who benefits?

Human trafficking is very lucrative: those who sponsor or impose forced labour generate immense illegal profits. In 2005, global profits made from forced labour exploitation reached USD 44,3 billion, of which USD 31,6 billion came from trafficked victims. Of these profits, USD 15,5 billion, or 49 %, were generated in industrialised countries (10), including the European Union. Human trafficking finances crime networks in the same way as arms and drug trafficking.

3. Specific comments

3.1 Instruments for fighting forced labour

It is a fundamental labour right — alongside freedom of association and collective bargaining, the minimum working age (prohibition of child labour) and non-discrimination in respect of employment and occupation — not to be required to perform forced labour. This has been confirmed by the UN, the ILO, the OECD and the EU (Article 5 of the Charter of Fundamental Rights of the European Union and Article 4 of the European Convention for the Protection of Human Rights). In addition to ILO Conventions 29 and 105, there are others, such as the domestic work (C189), labour inspection (C081 and C129), migrant workers (C097 and C143), and private employment agencies (C181) conventions, which provide scope for action.

As a fundamental right, it is universal and must also be applied in countries that have not ratified the core conventions on the basis of the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up. According to the UN Guiding Principles on Business and Human Rights, multinational corporations have a responsibility to respect human rights that exists independently of the role of the State in the countries where they operate (11).

Forced labour is identified as a form of exploitation in Directive 2011/36/EU. The directive defines all forms of exploitation as criminal offences and harmonises sanctions against people who engage in exploitation or businesses that use forced labour. It also sets out provisions on prevention and on the protection and compensation of victims.

However, despite the proclamation of rights and the number of international instruments, forced labour is not being eradicated. Crime networks are undeterred by borders and take advantage of discrepancies between the various systems.

The ILO conventions need to be supplemented in order to be able to address current forms of forced labour. They make no reference to human trafficking, prevention or victim protection and compensation.

3.2 Loopholes in the instruments

There is a great disparity between the weight (fundamental rights) and number of standards and rules (UN), conventions (ILO) or recommendations (OECD Guidelines for multinational enterprises (12), ISO 26000 (13), the ILO tripartite declaration of principles concerning multinational enterprises and social policy (14), non-financial reporting) and their application. Where action plans exist, there is often no budget, monitoring or evaluation in place. Instruments are inconsistent: immigration policies, border control policies and human rights protection, for example, often contradict each other, whereas cooperation policies, which could serve as levers to combat trafficking and forced labour, make no mention of this aspect.

The plethora of instruments does not guarantee effectiveness. The instruments of international institutions are now complemented by a range of private standards: codes of conduct, certification and labels, etc. In Europe, there are 240 labels, many of which are self-defined and not subject to verification. For instance, in their codes of conduct, some multinational corporations undertake to respect local legislation everywhere: a questionable commitment in countries that discriminate against women and do not uphold trade union rights! Some codes of conduct are worded to reassure consumers and investors; they involve no monitoring or verification and do not really address forced labour, making it possible to cut costs and increase profits.

3.3 Action to end forced labour in the EU and elsewhere

3.3.1 Loopholes in existing instruments need to be closed: the countries of Europe should speak with one voice at the ILO to ensure adoption of an additional protocol to ILO Convention 29 and a recommendation to reinforce prevention, monitoring and victim protection and compensation. In the European Union — The European Union adopted a directive on human trafficking (Directive 2011/36/EU) and a strategy (EESC opinion SOC/467). The European strategy against human trafficking includes a specific initiative targeting labour exploitation as one of the least studied aspects of trafficking and provides a set of measures involving labour inspectors and the relevant authorities, as well as the European Commission. However, these initiatives are recent and have yet to deliver all the expected outcomes. Furthermore, in cases where the economic crisis has resulted in the reduction of police and labour inspection resources and the growth of the informal economy, rising poverty and financial insecurity are likely to lead to an increase in forced labour. Prevention certainly involves awareness-raising, education and information, but also action against the informal economy and poverty, with particular focus on the most vulnerable groups, including migrants who do not speak the language of the host country. — Labour inspection requires adequate monitoring tools and European cooperation must be strengthened by setting up an agency to deal with crossborder issues and broadening the mandate of the platform for cooperation between labour inspections to include forced labour and to coordinate the other authorities responsible for combating undeclared work (the tax authorities). — Labour inspectors, social workers and trade union representatives should have indicators (e.g. Do workers have a passport? Do they have freedom of movement? Are they being paid?) that enable them to spot forced labour and call in the police (15). — Recruitment and placement agencies that recruit from other EU or non-EU countries (in construction, agriculture, waste and cleaning services, etc.) must be monitored and supervised in order to avoid fraudulent practices. Under the European strategy against human trafficking, the Commission will work with the European Foundation for the Improvement of Living and Working Conditions (Eurofound) to develop a best practice guide for public authorities on the monitoring of recruitment and placement agencies as well as intermediary agencies to prevent trafficking in human beings. The guide should include licensing systems and work related to the liability of such agencies. — Victims must be protected and their rights guaranteed and backdated (wage arrears, social protection), and compensation must be commensurate with the harm suffered. They should not be prosecuted for breaching immigration laws or for possession of false identity papers, nor for crimes committed under coercion (16). It is the traffickers who are the criminals and who should be prosecuted. The seizure of the traffickers' assets should make it possible to provide compensation to their victims. — Victims must be in a position to take legal action and must therefore be allowed to remain in the country for the duration of the legal proceedings even if they have entered the EU illegally. Residence permits should not depend on the victims' willingness to cooperate with the police and courts since many of them have been traumatised by their extremely negative experiences with the police. They may fear that testifying against their exploiters could lead to reprisals against their families in their countries of origin. Directive 2011/36/EU sets out a number of obligations for Member States to assist and protect victims. The enforcement of these measures must be as effective as possible to ensure adequate protection for victims, including the most vulnerable among them.

3.3.2 Outside the European Union, greater account needs to be taken of the appearance of new players — NGOs and multinational corporations — as a consequence of globalisation. WTO rules do not incorporate the ILO conventions explicitly enough. An ILO observer should attend WTO proceedings. The implementation of the conclusions and recommendations of the ILO supervisory system/mechanism relating to the legislation and practices of ILO Member States should also be reinforced. Quite often, action is not taken on these recommendations for lack of political will and/or the financial resources and administrative capacity to act on them.

3.3.3 The EU is working on a directive on corporate social responsibility (CSR) (17), which will require companies with more than 500 employees to publish a non-financial statement containing information on the environmental, social, and employee-related impact of their operations, including respect for human rights and anti-corruption efforts. This directive is in line with ILO standards (EESC opinion INT/698).

3.3.4 Development and external aid policy could be a lever if aid was conditional upon respect for fundamental rights by States as well as other stakeholders, especially multinational corporations exploiting the resources of the beneficiary countries. Furthermore, development aid should feature administrative capacity-building projects, including training for labour inspectors and the social partners on the implementation of the ILO conventions. Trade policy and development policy should support each other to secure better human rights enforcement. The ratification and effective implementation of the ILO conventions on forced labour (C029 and C105), and other ILO core conventions, should feature in the EU's trade, cooperation and association agreements with third countries and should be monitored on a regular basis. Civil society organisations must be involved through monitoring bodies that focus on the implementation of trade agreements and their chapter on trade and sustainable development.

3.3.5 Counting on civil society

3.3.5.1 Increasing the role that businesses play in connection with respecting and promoting human rights: this is what the OECD recommends in its guiding principles for multinationals (18). It is also what the Ruggie Report (UN) (19) advocates by involving governments, enterprises, civil society and investors. The report advises businesses to carry out risk assessments (human rights due diligence). They should take a preventative approach and play an active part in combating fundamental rights infringements. Multinational corporations and investors must be made accountable because it is their concern, but also in order to make it possible to prosecute them when they fail to exercise due diligence. Corporate accountability should also extend to the application of ILO standards. The accuracy of their statements should be monitored by independent non-financial assessment agencies.

3.3.5.2 Many multinational corporations are European and they are leaders when it comes to concluding international framework agreements with international trade union federations, particularly on CSR, including combating forced labour. The renewed EU strategy (20) 2011-2014 for CSR expects all European enterprises to meet their corporate responsibility to respect human rights (21).

3.3.5.3 Investment is another lever: many investors are signatories to the UN's Principles for Responsible Investment (PRI) (22), and socially responsible investments now comprise 22 % of investment flows, of which 49 % are European.

3.3.5.4 Businesses can take action through responsible purchasing policies, but so can administrative bodies and local authorities when awarding public procurement contracts, by ensuring that the companies they work with have the means to eliminate forced labour from their supply chain.

3.3.5.5 European NGOs are also leaders in the area of consumer rights when it comes to knowing where and under what conditions clothing and shoes, or even food products from non-EU countries, have been made (23). Insisting on greater transparency and traceability for all the components of a product or service should make it possible to eradicate forced labour.

3.3.5.6 Several trade union organisations have experience to share on setting up training courses on how to approach the victims of forced labour and methods for working with NGOs specialised in supporting irregular migrants, but not all of them have a global picture of the scale of the problem. Many still believe that it is not happening in their country or that they can do nothing to prevent it. States could help trade union organisations to organise workers in the informal sector. Trade union organisations in contractor countries should support unionisation in the countries executing the contracts, and third-country workers calling for living wages and decent working hours and jobs. European sectoral social dialogue committees are among the tools which could be used to raise awareness and combat forced labour.

Brussels, 30 April 2014. The President of the European Economic and Social Committee Henri MALOSSE

(1) 2011/36/EU.

(2) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52012DC0286:EN:NOT.

(3) OJ L 101/1, 15.4.2011.

(4) The ILO and the Commission asked a group of experts to develop operational indicators to identify human trafficking. The following document devotes a page specifically to labour exploitation: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_105023.pdf.

(5) http://www.unodc.org/documents/data-and-analysis/glotip/Trafficking_in_Persons_2012_web.pdf.

(6) EUROSTAT Trafficking in human beings (2013 edition): http://ec.europa.eu/dgs/home-affairs/what-is-new/news/news/2013/docs/20130415_thb_stats_report_en.pdf.

(7) It should be stressed that the 2013 EUROSTAT figures are based solely on numbers reported by EU Member States and do not capture unidentified victims of trafficking. Not all Member States provided data. Also, methodologies used by national authorities differed to a large extent. That is why direct comparisons between country figures may be misleading.

(8) ILO Global Estimate of Forced Labour 2012: Results and Methodology, Geneva, 2012. The ILO data refers to the estimated (as opposed to reported) number of persons in forced labour situations. Figures represent a minimum estimate as strict criteria for data validation and extrapolation were applied. The estimate provides a breakdown by region. A breakdown by country is not available as very few countries have attempted to develop national estimates.

http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_182004.pdf.

(9) E.g.: An Irish employer was asked to pay out EUR 90 000 in unpaid wages to a forced labourer. The employer appealed, claiming that the worker did not have the right to compensation because he was undocumented, and won the appeal (http://www.mrci.ie/resources/publications/mrciupdates/the-fight-for-justice-muhammads-story-part-ii/).

(10) Patrick Belser, Forced Labour and Human Trafficking: Estimating the Profits, Working Paper, Geneva, International Labour Office, 2005: http://www.ilo.org/sapfl/Informationresources/ILOPublications/WCMS_081971/lang--en/index.htm.

(11) UN Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie — (2011) UN GA A/HRC/17/31 http://www.ohchr.org/Documents/Issues/Business/A.HRC.17.31_en.pdf.

(12) OECD Guidelines for Multinational Enterprises (2011): http://www.oecd.org/daf/inv/mne/oecdguidelinesformultinationalenterprises.htm.

(13) ISO 26000 — Social responsibility: http://www.iso.org/iso/home/standards/iso26000.htm?=.

(14) ILO Tripartite declaration of principles concerning multinational enterprises and social policy (MNE Declaration) — 4th Edition (2006):

http://www.ilo.org/empent/Publications/WCMS_094386/lang--en/index.htm.

(15) http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_105023.pdf.

(16) OSCE guidelines on non-punishment (2013): http://www.osce.org/cthb/101083.

(17) Proposal for a Directive of the European Parliament and of the Council amending Council Directives 78/660/EEC and 83/349/EEC as regards disclosure of non-financial and diversity information by certain large companies and groups, COM(2013) 207 final — 2013/0110 (COD).

(18) http://www.oecd.org/daf/inv/mne/oecdguidelinesformultinationalenterprises.htm.

(19) http://www.ohchr.org/Documents/Issues/Business/A.HRC.17.31_en.pdf.

(20) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0681:FIN:EN:PDF.

(21) A renewed EU strategy 2011-2014 for Corporate Social Responsibility

(COM(2011) 681) final (http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0681:FIN:EN:PDF)

(22) UN Principles for Responsible Investment website: http://www.unpri.org.

(23) Clean Clothes Campaign website http://www.cleanclothes.org.