Post by: Anna Olsen, Technical Officer, Tripartite Action to Protect the Rights of Migrant Workers in the Greater Mekong Subregion, ILO (ILO GMS TRIANGLE). You can contact her at firstname.lastname@example.org.
Just last week, we attended the screening of several men who had been repatriated after a long period away. They had been working as fishers and living in very bad conditions. Some gave evidence that would indicate human trafficking, including being tricked on to boats. Some told stories that displayed elements of forced labour. All had been exploited, in one way or another, and the employer had facilitated their return.
Among many tragic stories, one man stood out. Like many of the others, he had returned without any money, without anything to show for his years of work away from his family. And he had returned with a crushing sense of shame that he was, still, empty-handed. During the interviews, he remarked to another returnee next to him, that he wouldn’t be going home to his family, because he had nothing.
Not going home means a lot of things. It meant further challenges in accessing healthcare and assistance finding a new job. More personally, it means several more years where parents and siblings do not know where their son and brother is; it means more time away from the comfort and support of family.
Many readers will not understand the cultural context that means this man cannot face his family without any money to show for his time away. But this story underscored for me the importance of being able to make claims and access redress when migrant workers are victims of crimes and exploitation. This man was never paid any wages.
The Protocol of 2014 to the Forced Labour Convention, 1930 requires each member State to ensure that all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies, such as compensation. The Recommendation supplementing it further clarifies that this should include compensation and damages from perpetrators, including unpaid wages and statutory contributions for social security benefits. Even if a crime like trafficking or forced labour is not proven, the ILO’s Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) clearly states that regardless of status, migrant workers are entitled to be paid for the work they have completed. More locally, General Principle 2 of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (2007) states that sending and receiving States shall, for humanitarian reasons, closely cooperate to resolve the cases of migrant workers who, through no fault of their own, have become undocumented. Part of this resolution must be coordinating access to justice.
According to Profits and Poverty, the ILO’s report on the economics of forced labour, there is a clear correlation between sudden income shocks, like not receiving wages or facing unexpected health costs, and the likelihood of ending up in forced labour. The obvious tactic to prevent victimization and re-victimization, then, is to ensure that access to justice for wages due, and an adequate social protection floor is accessible to all.
In reality, access to compensation remains a distant dream for many victims of forced labour. The man in our story has little access to compensation for underpayment, let alone redress for the less tangible harm suffered. There are few, if any, mechanisms for reclaiming lost wages while a worker is overseas – few bilateral agreements include provisions on how to determine jurisdiction for such claims, and access to international mechanisms is notoriously difficult. This is a gap that should urgently be addressed, both to restore justice for victims of exploitation and to prevent re-trafficking.
But we are working on increasing access to justice for all exploited workers. Through linking Migrant Worker Resource Centres to complaints mechanisms processes and legal aid, in the last five years, the GMS TRIANGLE project has enabled over US$1.2 million to be awarded to migrant workers who have been underpaid, exploited, injured or abused. This money goes, rightfully, back into the pockets of workers and governments are beginning to realise how important effective complaints mechanisms are to combatting abuse and regulating brokers and recruitment agencies.
After the man mentioned that he wouldn’t be going home, another returnee turned to him ‘don’t worry, my uncle has a construction site, I’ll give you his number and you can work there.’ Without viable options to receive the wages he is owed and compensation for the harm he has already suffered, it is easy to see how the construction job is an attractive option. And, hopefully, this is the beginning of a new life, not the cycle of exploitation, trafficking and forced labour starting all over again.