Introduction

On 11 June, 2014 the International Labour Organization (ILO)[1] adopted a new Protocol to the Forced Labour Convention, 1930. The Protocol is relevant to trafficking in persons and specifies measures to prevent trafficking for the purpose of forced labour and to adequately protect and support survivors.

The purpose of the Protocol is to address the gaps in the implementation of the Forced Labour Convention, 1930. While the Protocol reaffirms the definition[2] of forced labour established by the 1930 Convention, it also recognizes the need to update measures in view of changes to the global context and to respond to current trends and forms of abuse. These include abuses against vulnerable workers, especially migrants in the private sector, and trafficking in persons for the purposes of forced or compulsory labour, which may involve sexual exploitation.

A non-binding Recommendation on supplementary measures for the effective suppression of forced labour was also negotiated by ILO members. The recommendation is meant to provide legal guidance to governments in implementing the Convention and the Protocol and suggests additional measures to take to adequately prevent and protect people from forced or compulsory labour.

The Protocol and recommendation are particularly relevant to Canada’s efforts to address different forms of forced labour and abuse, including labour trafficking, which overwhelmingly affects migrant workers in Canada. Currently, Canadian labour laws fail to adequately protect migrant workers, leaving them at risk of abuse, conditions of forced or compulsory labour, exploitation and human trafficking. This is a growing yet preventable problem.  Canada has ratified the 1930 Convention, signalling its commitment to eliminate forced labour. All the more reason to turn to the Protocol and recommendation as these provide important tools to strengthen Canada’s prevention and protection measures against different forms of forced or compulsory labour and abuse.

The Canadian Council for Refugees is therefore calling upon the government of Canada to ratify the Protocol to the Forced Labour Convention and to implement all of its provisions, and urges the government to adopt the Protocol’s recommendation.

The following summary highlights the Protocol’s key measures as they pertain to prevention, protection, and to effective remedies necessary to adequately address forced or compulsory labour, including trafficking in persons.

Protocol to the Forced Labour Convention: Key measures

The Protocol requires ratifying governments to implement the following measures:

• Develop a national policy and plan of action for the elimination of forced labour, in collaboration and coordination with workers’ and employers’ organizations, among other civil society groups concerned;
• Educate and inform people who are considered to be at risk of being subjected to forced or compulsory labour, as well as employers so as to prevent them from participating in exploitative practices;
• Ensure that labour and other laws relevant to preventing forced labour extend and apply to all workers and economic sectors;
• Improve labour inspections and other services responsible for implementing labour laws;
• Protect individuals, particularly migrant workers, from exploitative and fraudulent practices during the recruitment and placement process;
• Support the public and private sectors in taking action to prevent and respond to risks of forced or compulsory labour in their operations;
• Address the root causes and factors that increase the risk of forced labour;
• Establish measures to effectively identify, release, protect and provide assistance and support to individuals who have been subjected to forced labour, including through measures that facilitate their recovery and rehabilitation;
• Ensure that people who have been subjected to forced labour have access to necessary remedies, including to justice and compensation, regardless of their immigration status;
• Ensure that authorities have discretion not to prosecute or impose penalties on people who have been subjected to forced labour for participating in unlawful activities committed as a direct consequence of their forced labour situation;
• Cooperate internationally to prevent and eliminate all forms of forced and compulsory labour.

Forced Labour Recommendation: Key supplementary measures

The recommendation supplementing the Convention and the Protocol provides further detailed guidance for governments to support their actions in the areas of protection, prevention, remedies, enforcement and international cooperation. Some of the key measures include:

• Collecting reliable data on the nature and extent of forced or compulsory labour, in order to allow for an assessment to be made;
• Establishing or strengthening time-bound policies and plans of action with a gender- and child-sensitive approach, alongside relevant authorities and mechanisms concerned with forced labour, in consultation with employers’ and workers’ organizations and other groups concerned.

Protection measures:

• Carrying out targeted efforts to identify and release individuals subjected to forced labour;
• Offering protection measures to survivors of forced labour without conditioning protection to their cooperation in criminal or other proceedings;
• Taking effective measures to meet the immediate and long-term needs of survivors, including:
  • Efforts to protect their safety, the safety of their family members and of witnesses;
  • Offering specialized services (i.e. adequate accommodation, health care, and rehabilitation services, among others) to survivors of forced labour, including those who have also been subjected to sexual violence;
  • Providing material, social and economic assistance.
• Offering protection to migrants subjected to forced labour regardless of their immigration status, including:
  • A reflection and recovery period to allow survivors to decide on protection measures and legal action;
  • Temporary or permanent residence permits and access to the labour market, as well as facilitating safe and voluntary repatriation.

Prevention measures:

• Creating initiatives that address child labour and create educational opportunities for girls and boys;
• Providing basic social security guarantees;
• Carrying out targeted awareness-raising campaigns, for groups at risk of being subjected to forced labour, as well as campaigns regarding penalties on participating in forced labour practices;
• Offering orientation and information for migrants before departure and upon arrival;
• Creating policies that consider the risks faced by specific groups of migrants and addressing the conditions that could result in situations of forced labour;
• Coordinating efforts with other governments to prevent trafficking in persons, including efforts to regulate, license and monitor labour recruiters and employment agencies and to eliminate the charging of recruitment fees to workers.

Remedies:

• Ensuring that all survivors, citizens and non-citizens, have access to justice and other remedies, such as compensation for personal and material damages;
• Making information accessible to survivors regarding their legal rights and services available to them, as well as facilitating access to preferably free legal assistance.

Enforcement measures:

• Holding companies and other legal entities liable for forced labour, which should be subject to penalties such as confiscation of profits from forced labour or other assets;
• Strengthening identification measures and developing indicators to be used by labour inspectors, law enforcement services, social workers, immigration officers, public prosecutors, employers, employers’ and workers’ organizations, non-governmental organizations and other relevant actors.

International cooperation:

• Strengthening cooperation internationally between institutions overseeing labour-related law enforcement, in addition to criminal law enforcement;
• Cooperating internationally to address and prevent the use of forced labour by diplomatic personnel.