1. Kuanruthai Siripatthanakosol NPC Thailand
Forced Labour and Trafficking for Labour Exploitation: Applicable ILO Standards
Kuanruthai Siripatthanakosol
NPC Thailand

2. Elimination of forced labour:
one principle, 3 Conventions + 1 Recommendation
Forced Labour Convention, 1930 (No. 29)
to put an end to the practice of compulsory labour in dependent territories – definition, exceptions, sanction
Abolition of Forced Labour Convention, 1957 (No. 105)
to combat emerging new uses of forced labour – for political repression or economic development
Protocol of 2014 to the Forced Labour Convention, 1930
to remove the transitional provisions from the Convention without revising it; to ensure the express coverage of trafficking in persons; to provide for prevention, protection and compensation of victims
Forced Labour (Supplementary Measures) Recommendation, (No. 203)
Thailand ratified C.29 and C.105 in 1969

3. Definition of forced labour
“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.”
(Article 2(1), Convention No. 29)
งานหรือบริการทุกชนิด ซึ่งเกณฑ์เอาจากบุคคลใดๆ โดยการขู่เข็ญการลงโทษ และซึ่งบุคคลดังกล่าวมิได้ทำงานหรือบริการโดยสมัครใจ.
The Convention applies to all forms of work or services.. The actual or alleged legal nature of the relationship between victim and perpetrator is irrelevant and it does not matter if there is an employment contract or if such work is illegal under the domestic law. Hence, it includes situations where there is no apparent employer such as selfemployment,2 forced begging, as well as forced prostitution
Ppenalty has a broad sense and does not need to be in the form of penal sanctions,5threats, physical violence or confinement. It includes other forms of penalty such as threat of declaration to the authorities,6 situations of debt bondage (leaving work would require workers to pay off a debt), retention of passport (leaving work would mean workers could be arrested or unable to leave the country). Withholding wage could also be a form of penalty in the case where an employer withheld wages of workers to make workers continue working in the hope that he or she will be paid one day. However, poverty and a family’s need for an income are not as such indicative of coercion.
The consent of the worker must be obtained without deception (the principle of informed consent) and maintained throughout the duration of work or service. Hence, the involuntariness can occur at the stage of recruitment (forced or deception as to the nature of work or working conditions), during the performance of work or service and/or when such a person wants to leave the work but cannot. This means that, even when a workers concluded an agreement freely at the recruitment stage, they must be able to revoke their consent and have freedom to leave work. Free choice remains inalienable at any given point. A worker’s freedom to offer himself or herself voluntarily could be interfered with by an external constraint or indirect coercion either by law, authorities or an employer’s practice. For example, a law that strictly prohibits migrant workers from changing employers, or where workers agreed to do the work because they were deceived 
ILO, General Survey concerning the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), 2007, 21, available at
ibid.

4. Different forms of forced labour
In the private economy*
For example:
Coercion in employment: Restriction of movement, intimidation and threats, physical and sexual violence, etc.
Debt-induced forced labour: Debt-bondage, excessive recruitment fees, loans, wage advances, etc.
Forced labour as an outcome of trafficking in persons.
*Forced labour can also be state-imposed

5. Obligations under Convention No. 29
Convention No. 29 prohibits the use of forced or compulsory labour in all its forms.
Obligations of member States which ratify Convention No. 29 include:
Suppression of the use of forced or compulsory labour in all its forms within the shortest possible period (Article 1(1)).
Making illegal exaction of forced or compulsory labour punishable as a penal offence (Article 25).
Ensuring that the penalties imposed by law are really adequate and strictly enforced (Article 25).

6. Global
On any given day in 2016, an estimated 40.3 million people were victims of modern slavery. Of these people, 24.9 million were in forced labour and 15.4 million were in forced marriage (Global estimates of modern slavery: forced labour and forced marriage, 2017)
Generates US$ 150 billion in illegal profits – 2/3 (US 99 billion for forced sexual exploitation) ; 51 billion for forced labour exploitation – (top three are construction/mining; agriculture/fishing and domestic work
ILO report: Profits and Poverty: The Economics of Forced Labour (2012)

7. Of forced labour vicitms, an estimated 16 million people were in forced labour in the private economy in 2016.

8. 1. Why new standards on forced labour?
New standards to:
Promote coherence in international action against forced labour, slavery and trafficking in persons
Better respond to contemporary forms of forced labour (private economy, links with migration)
Provide guidance on prevention, protection, access to remedies (compensation)
Reaffirm political commitment to combat forced labour

9. Obligations under the 2014 Protocol
To take effective measures to:
Prevent and eliminate use of forced labour.
Provide protection and access to appropriate and effective remedies, such as compensation, to victims.
Sanction the perpetrators of forced labour. (Article 1(1)
These measures shall include specific action against trafficking in persons for the purposes of forced labour (Article 1(3)).
To develop a national policy and plan of action for the effective and sustained suppression of forced labour, which shall involve systematic action (Article 1(2)). .

10. Obligations under the 2014 Protocol
Measures of prevention shall include:
Educating and informing the vulnerable
Protecting workers, especially migrant from abuses during the recruitment and placement process
Strengthening labour inspection
Supporting due diligence by public and private sectors
To take effective measures for the identification, release, protection, rehabilitation and recovery of victims
To ensure that victims have access to effective remedies, irrespective of their presence or legal status in the national territory
To cooperate with each other in the prevention and elimination of all forms of forced or compulsory labour .

11. Articles Content Preamble 1 2 3 and 4 5 6 7 8 and 9
Recognizes vital role played by C29 and Abolition of Forced Labour Convention, 1957 (No.105);
Reaffirms the definition of forced labour in Convention No. 29 1
Overall obligation to:
Take effective measures for prevention, protection and access to effective remedies, such as compensation
Develop a national policy and plan of action for the suppression of forced labour, in consultation with workers’ and employers’ organizations
Take specific action against trafficking in persons for the purpose of forced labour. 2
Prevention measures
3 and 4
Protection measures and access to remedies, including compensation 5
International cooperation 6
Measures to be determined by national laws, regulations or competent authorities 7
The transitional provisions of Convention No. 29 are deleted.
8 and 9
Procedural provisions
The provisions that follow Article 1 clarify what measures are required, while the provisions in the Recommendation provide guidance on what measures are considered effective.

12. Added value of the 2014 Protocol and Recommendation
They approach forced labour as a labour market issue, and not only as a criminal justice issue.
They address structural/systemic factors that make workers vulnerable to forced labour, instead of only focusing on identification of individual cases and prosecution of perpetrators.
They assign an important role to labour market institutions, including labour inspectorates, and provide for the involvement of employers’ and workers’ organizations.
They recognize the responsibility of private sector in preventing and responding to risks of forced labour.
They provide specific protection to migrant workers.
An explicit linkage between concepts of forced labour and human trafficking.
As of now there are 24 ratifications, including Thailand

13. ILO instruments most relevant to the prevention and suppression of situations of forced labour
Protection of Wages Convention, 1949 (No. 95) – full and prompt payment of wages in a manner that provides protection against abuse
Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) – suppression of migration in abusive conditions, including through prosecution of manpower trafficking and illegal employment of migrant workers ; equality of opportunity and treatment
ILO Conventions = 8 fundamentatl cons (29, 87,98, 100, 105, 111, 138, 182) Thailand ratified 6 (+1) out of 8; Governance = 4 (+1); Technical = 177; Protocols = 6; Recs = 205

14. ILO instruments most relevant to the prevention and suppression of situations of forced labour
Private Employment Agencies Convention, (No. 181) – prohibition of charging fees or costs to the worker/job-seeker ; protection from and prevention of abuses of migrant workers, including through provision of penalties
Domestic Workers Convention, 2011 (No. 189) – protection of human rights at work and against all forms of abuse, harassment or violence ; fair terms and conditions of employment and work enforceable in the country of execution of the contract ; right to keep travel and identity documents ; hours of work ; protection of wages ; access to dispute resolution and complaint mechanisms

15. Definition of trafficking in persons
“Recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” “Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs.” (Article 3 (a)-(b), Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organized Crime (UNTOC), 2000.)

16. Definition of trafficking in persons (Trafficking protocol)
Act:
Recruitment.
Transportation.
Transfer.
Harbouring.
Receipt of persons.
Means:
Threat or use of force.
Coercion.
Abduction.
Fraud.
Deception.
Abuse of power.
Giving or receiving of payments.
Purpose:
Exploitation, at a minimum,
Prostitution.
Other sexual exploitation.
Forced labour.
Slavery.
Practices similar to slavery.
Servitude.
Removal of organs.
The notion of exploitation of labour in the definition of trafficking allows for a link to be established with concept of forced labour.
The “means“ that comprise an element of the definition of trafficking exclude the voluntary offer or consent of the victim.

17. Relationship between forced labour and human trafficking
The Protocol of 2014 to the Forced Labour Convention establishes an explicit link between forced labour and human trafficking: “ the measures referred to in this Protocol shall include specific action against trafficking in persons for the purposes of forced or compulsory labour” (Article 1(3)).
Since 2001, the ILO Committee of Experts has examined the issue of trafficking in its comments under the Forced Labour Convention No. 29.
Trafficking of children is one of the worst forms of child labour to be eliminated by immediate and effective measures under the Worst Forms of Child Labour Convention No. 182.

18. Relationship between forced labour and human trafficking
Trafficking Protocol
C.29 and P.29
Trafficking for organ removal
Trafficking for forced labour, forced sex work, slavery, servitude.
State-imposed forced labour
Forced labour, which does not involve trafficking

19. 3. Identifying forced labour
How to identify forced labour in practice?

20. The continuum of exploitation
Need to better integrate labour and criminal justice to capture the continuum of exploitation.
DECENT WORK
Minor labour law violations
Major labour law violations
FORCED LABOUR
Civil or administrative sanctions
(or criminal sanctions)
Criminal sanctions under penal law

21. A non-exhaustive list: ILO indicators
Physical/sexual violence
Intimidation and threats
Poor or abusive working and/or living conditions
Abuse of vulnerability
Deception
Restrictions on freedom of movement
Isolation
Retention of documents
Withholding of wages
Debt bondage
Excessive overtime
Key questions:
Have the workers entered into employment or work voluntarily? Are they free to leave it if they will?
Are penalties or threats used to keep workers from leaving employment or work?
Developed by experts from police, labour inspectorates, government, academic and research institutes, NGOs, international organisations, trade unions, and judiciary  modified for purposes of frontline law enforcement / first responders
ลักษณะความเสี่ยง: การละเมิดอันเนื่องมาจากความเปราะบาง การหลอกลวง การจำกัดเสรีภาพในการเดินทาง การถูกโดดเดี่ยวจากสังคม ความรุนแรงต่อร่างกายและความรุนแรงทางเพศ การขู่เข็ญและการข่มขู่ทำให้กลัวอันตรายต่อร่างกาย จิตใจ การยึดเอกสาร การไม่จ่ายค่าจ้าง แรงงานขัดหนี้ สภาพการทำงานและความเป็นอยู่ที่อันตราย ชั่วโมงการทำงานล่วงเวลาที่ยาวนาน
การใช้บทลงโทษ ได้แก การใช้วิธีการบังคับ เช่น การข่มขู่ว่าจะส่งกลับ หรือแจ้งเจ้าหน้าที่ให้มาจับ การไม่จ่ายค่าจ้าง การขู่ว่าจะทำร้าย เป็นต้น
มิได้สมัครใจ = มิได้ยินยอม (informed, freely given) เช่น การจำกัดเสรีภาพในการเดินทาง การริบหรือยึดเอกสารประจำตัว
กฎหมายระหว่างประเทศ พิจารณาความแตกต่างระหว่างแรงงานทาส กับแรงงานบังคับ จากหลักความเป็นเจ้าของ ในขณะที่แรงงานบังคับดูจากการบีบบังคับเอาจากบุคคลใดๆโดยการใช้บทลงโทษ ข้อสังเกต แรงงานทาสบางคนอาจจะถูกบังคับและลงโทษโดยที่ตนไม่ยินยอม แต่ บางคนอาจะเป็นทาส โดยสภาพ และอาจไม่ได้ถูกบังคับให้ทำงาน (ในทางทบ.)
ในทางปฏิบัติ ILO จะพิจารณา กรณี slave like practice รูปแบบที่เหมือนการใช้แรงงานทาส เป็นส่วนหนึ่งของแรงงานบังคับ
ลักษณะของความเสี่ยงต่อการตกเป็นแรงงานบังคับ

22. Abuse of a position of vulnerability
Taking advantage of a worker’s vulnerable position.
Abuse of workers who e.g. lack knowledge of the local language, have few livelihood options, belong to a minority ethnic group, or have a disability.
Multiple dependence on the employer for work, housing, food and drink makes workers more vulnerable to abuse.
For example, a man accepts a job that is offered by a recruiter
Once man arrives, he’s put into van and driven to a completely different part of country, in area he’s unfamiliar with, and told he must work in another sector/job.
Because of high recruitment fees the recruiter now says he owes him. Since the worker has an irregular immigration status, and because he feels isolated and doesn’t know where he is he feels he has no choice
These circumstances – his debt/poverty and his irregular work status and his isolation - were created by the recruiter
They enabled recruiter to exploit him and subject him to terrible working and living conditions

23. Deception
Deceptive recruitment practices and false promises, for example, about:
Wages.
Working conditions.
Type of work.
Housing and living conditions.
Job location.
Identity of employer.
Children often end up in forced labour because of false promises made to their parents.
Deception in recruitment: false promises of high wages; excellent working conditions; deceptive description of task; deception regarding job location; promises of « better quality of life »

24. Restrictions on freedom of movement and isolation
Less evident restraints:
Isolated worksite
Pre-departure training centres
Limitations through confiscation of documents
Debt or wage manipulation
Veiled threats
Inability to communicate (confiscated phone; local language)
More obvious forms:
Physical confinement
Locked doors/windows
Surveillance cameras
Security personnel

25. Withholding of wages and wage manipulation
Withholding of wages may amount to forced labour, if wages are systematically and deliberately withheld as a means to compel workers to continue working for the employer.
Irregular or delayed payment of wages does not automatically imply a forced labour situation.

26. Excessive overtime
Long working hours in exceptional circumstances do not necessarily characterise forced labour
However, excessive overtime that occurs regularly should be further investigated
Questions: threats; involuntariness; worker able to quit job; overtime negotiated and compensated?
Warning signs:
Ambitious production quotas
Payment based on productivity
Working hours not clearly defined
Work on demand (24/7)
No breaks during the day; no rest days; no free time

27. Key Findings from Gap Analysis Study
Legal definitions and victim screening
The current legislative framework contains provisions allowing
for the punishment of persons guilty of trafficking, including trafficking for forced labour. It also addresses victim protection, access to remedies and the right to compensation regarding victims of trafficking. However, the effective enforcement and implementation of such provisions depends, among other measures, on the adequate interpretation of existing legal definitions and effective victim screening.
The absence of a stand-alone offence of forced labour under Thai law might hinder the identification, investigation and prosecution of cases of extreme labour exploitation that are not a consequence of trafficking, or cases in which the trafficking element is not clearly evident. This legislative gap might also hinder the effective identification and protection of all victims, and their access to appropriate and effective remedies
Monitoring and regulating recruitment
Coordination and collaboration among relevant stakeholders

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