Serious issues of forced labour and human trafficking in Malaysia reached global news when the United States imposed import bans on six Malaysian companies over allegations of forced labour recently. The more apparent news was when Dyson cut ties with ATA IMS (ATAI.KL), which makes parts for its vacuum cleaners and air purifiers, following a 6 months audit of the Malaysian company’s labour practices. The indicators of forced labour were based on the standards set out by the International Labour Organisation (ILO).
In the previous article, I shared that the Malaysian Government responded to the allegations by taking a stance with the introduction of the National Action Plan on Forced Labour (NAPFL), a goal-driven and strategic five years initiative to reduce (and ultimately eradicate) forced labour in the country. This has prompted employers in the country to be more attentive and alert of their existing employment conditions, especially with migrant workers.
It is important for employers to understand the definition and elements of forced labour to avoid confusion with non-compliance to labour regulations.
In these two (2) parts articles, we are going to discuss the meaning of forced labour and the key eleven (11) indicators (red flags) of forced labour[1].
Definition
The ILO defined forced labour under Article (2) of the Forced Labour Convention 1930 (No. 29) 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.
Based on the above definition, forced labour occurs when a situation involves involuntariness to provide service and threats/penalties imposed towards the individual.
For example; individual A was deceived to work as a cleaner in Malaysia when he was promised an engineering position by his agent. Individual A is not allowed to travel freely and his employer imposes a fine if he wants to take annual leave.
An employer may only be guilty of an offence under non-compliance to the labour regulation if involuntariness and menace to penalty are not present together in the labour violation.
Key Indicators
- Abuse of vulnerability
It is when an employer takes advantage of a worker’s vulnerable position, for example, to impose excessive working hours or to withhold wages that a forced labour situation may arise. Forced labour is also more likely in cases of multiple dependencies on the employer, such as when the worker depends on the employer not only for his or her job but also for housing, food, and for work for his or her relatives.
- Deception
Deception relates to the failure to deliver what has been promised to the worker, either verbally or in writing. Victims of forced labour are often recruited with promises of decent, well-paid jobs. But once they begin working, the promised conditions of work do not materialise, and workers find themselves trapped in abusive conditions without the ability to escape.
It is vital to materialise the contractual terms provided in the employment contract and to conduct due diligence to ensure that the employees were not given false promises by their agents before finalising their employment.
- Restriction of movement
Forced labourers may be locked up and guarded to prevent them from escaping, at work, or while being transported. If workers are not free to enter and exit the work premises, subject to certain restrictions which are considered reasonable, this represents a strong indicator of forced labour.
Restriction of movement would also include the prohibition of returning to the home country or home town when requested by the employees, and refusal to allow annual leaves.
- Isolation
Victims of forced labour are often isolated in remote locations and denied contact with the outside world. Workers may not know where they are, the worksite may be far from habitation and there may be no means of transportation available. But equally, workers may be isolated even within populated areas, by being kept behind closed doors or having their mobile phones or other means of communication confiscated.
- Intimidation and threats
Victims of forced labour may suffer intimidation and threats when they complain about their conditions or wish to quit their jobs. In addition to threats of physical violence, other common threats used against workers include denunciation to the immigration authorities, loss of wages or access to housing or land, sacking of family members, further worsening of working conditions or withdrawal of “privileges” such as the right to leave the workplace.
This would also trigger the provisions under the Penal Code, which amounts to criminal offence and may be prosecuted under the criminal law if found guilty.
*The remaining six (6) indicators will be discussed in part 2 of this article in the next issue….
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[1] 11 – Indicators of Forced Labour by Special Action Programme to Combat Forced Labour (ILO)
