Worker organising as a remedy for forced labour

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What is a remedy for forced labor? In the debate surrounding the recently-adopted EU Forced Labour Regulation, and in the context of the longstanding US forced labor import ban, advocates have called on government officials to ensure workers receive full compensation for the forced labor they have suffered. This critically important demand reflects the usual understanding of remedy in this setting: addressing past harm.

But remedying forced labor must also be about the future, ensuring workers don't return to the same conditions the day after they are repaid. Worker organizing and collective bargaining agreements, supported by enforceable accords which hold brands accountable for conditions at their suppliers, are the best guarantee forced labor in supply chains will not recur. These approaches to worker empowerment, too, should be understood as a remedy—and import bans may have the potential to help them succeed.

Seeing freedom of association as a remedy requires a shift in perspective, from perceiving people facing forced labor as victims in need of humanitarian assistance, to engaging with them as workers with agency. In many settings, for example where forced labor is state-imposed or genuine unions are absent, workers face prohibitive barriers to action.  Yet there are other worksites at the bottom of supply chains where conditions meet many of the ILO indicators of forced labor and yet workers are organizing.  Recognizing this, the US government and advocates have begun to explore the possibility of using Section 307 of the Tariff Act of 1930, the US forced labor import ban law, in ways that center worker agency and incentivize lead firms and major suppliers to sign legally enforceable agreements.

At the government level, the US Customs and Border Protection agency (CBP) first endorsed worker-driven remedies for forced labor in 2022.  The change apparently stemmed from the agency’s experience after it imposed a ban under Sec. 307 on an Indian garment manufacturer shortly after it signed an agreement with workers and their union to address prior gender- and caste-based violence and harassment, complemented by an accord legally binding key brands to support the union agreement. (Together, these commitments are called the “Dindigul Agreement.”) CBP had imposed the ban without consulting the union or the workers. The agency quickly lifted it after the union and its allies, Global Labor Justice and the Asia Floor Wage Alliance, demonstrated the Agreement had already remediated the indicators of forced labor at the factory before the ban was imposed. Shortly thereafter, CBP began highlighting the role of unions and binding brand agreements in remediating forced labor, stating it sees the Dindigul Agreement as a model for remediation and would consider the presence of such an accord in deciding whether to impose a ban or lift one already in place.

Advocates, too, are exploring the potential for such agreements to remedy forced labor. They identify lead firms as essential participants in these efforts. Unless brands make legally enforceable commitments to source from suppliers which eradicate forced labor and respect freedom of association, those suppliers will be unable to compete for contracts due to increased costs. Historically, lead firms have issued statements of corporate social responsibility which are vague and - crucially -voluntary. Yet the incentives may change if signing enforceable agreements offers some insurance against losing access to major national markets.

As yet there has not been a Sec. 307 petition filed with the goal of supporting workers who are organizing, While there are many risks and uncertainties, if workers and their unions and allies decide the tool is appropriate, my recent report explores how it might work. Where workers in a supply chain were organizing to demand an end to forced labor linked to the pricing and contracting practices of lead firms, their union or an ally would prepare a petition for a ban and inform those companies. If they responded by signing an enforceable agreement to address forced labor and support the results of collective bargaining, there would be no need to file the petition. If an agreement was reached after the petition was filed or a ban had been imposed, the parties would present it to CBP as evidence the forced labor had been remediated, and ask the agency to halt its investigation or lift the ban.

A recent situation hints at the potential. In early 2024, brands agreed to fully compensate South Asian migrant workers who had self-organized to demand repayment of millions of dollars in back wages owed by a Jordanian garment supplier. The Workers Rights Consortium, which facilitated negotiations, informed the brands the violations constituted forced labor, and believes that the implication of a potential violation of Sec. 307 was important to the success of the workers’ organizing effort.

Workers facing forced labor deserve remedies which fully compensate for past harm while also ensuring a better future, with the support of unions and empowered workers organizations. A new advocacy approach to trade bans may help bring all responsible parties to the table to guarantee their labor rights and respect their human dignity.

By Jennifer Gordon, Professor of Law, Fordham Law School

Position: Co -Founder of ENGAGE,a new social venture for the promotion of volunteerism and service and Ideator of Sharing4Good