Our key takeaway: Prohibiting products made with forced labour - good in principle; but so long as this prohibition does not come at the expense of workers, and tackling the root cause of forced labor. A large number of organisations have written to the European Commission with their demands of the European Commission’s legislative proposal for a ‘regulation on prohibiting products made with forced labour on the Union market.’ The signatories underscore the importance of providing remediation for workers in situations of forced labour; tackling the root cause of forced labour; involving workers in the investigation process; assessing any potential unintended consequences of the ban; and providing protections to workers raising issues. When it comes to the inter-connection between this import ban, and the EU’s due diligence directive, the signatories make clear that due diligence cannot protect companies from investigations - but may help companies prove that they have provided remediation and sought to prevent recurrence of forced labour - so long as ‘tick box’ due diligence is not allowed (aka: code of conducts, social audits, and contractual clauses). In short: let’s not forget why this law is being proposed in the first place, to make things better for workers trapped in their workplaces.
A large number of civil society organisations, coalitions and trade unions have published: ‘Civil Society Statement on the Proposed Regulation on Prohibiting Products Made With Forced Labour on the Union Market’ (October 2022):
- “falls significantly short of its potential”: The letter states that “the Commission’s proposal is not enough for the 17.3 million people in forced labour in the private sector and the 3.9 million people in state- imposed forced labour”, and “the proposal falls significantly short of its potential and in particular fails to put workers at its heart.” The signatories state that “[o]f greatest concern is that the proposal completely fails to take into account the fate of workers forced into exploitation, both inside and outside the European Union. It is essential that the proposal is amended to focus on ensuring that workers receive remediation, and to make sure that both affected and potentially affected workers’ views and interests are taken into account at all stages of the investigation and decision processes.” Specifically, the signatories call on competent authorities, during the investigation process, to “engage with workers and their representatives to enable workers to use a potential ban as leverage to improve conditions and enable remediation and access to justice, as well as to identify and mitigate any potential unintended consequences on affected workers of imposing a ban.” In addition to remediation for workers, the signatories call for addressing the root cause of forced labour: “The measures that should be required include “capacity strengthening and funding to support communities and workers to address the root causes of abuses such as discrimination, power imbalances, unfair purchasing practices and production delays, lack of livelihood opportunities, the absence of a living wage, land rights, etc.”
- “due diligence not a shield: The letter notes that “due diligence should not be held as a shield against the opening of an investigation. Crucially, the pre-investigation must focus only on the determination of whether there is a substantiated concern of forced labour. However, the role of due diligence could be considered in the investigation stage in that it, as above, allows for companies to prove adequate remediation (or support for remediation) has been meaningfully provided and measures have been introduced to prevent recurrence of forced labour, prior to any decision to destroy products.” (emphasis in the original). When it comes to due diligence, the letter states that “companies must not be allowed to rely on code of conducts, social audits, and other contractual clauses that have already been proven wholly ineffective to meaningfully address forced labour in companies’ value chains.” The letter calls on the European Commission to adopt criteria on determining the appropriateness of the due diligence measures. The signatories also emphasise the need to think about this proposed regulation, “in parallel to” the Corporate Sustainability Due Diligence Directive, to “ensure they are meaningfully designed to address forced labour.”
- Scope of enforcement and non-retaliation: The letter also delves into areas where the scope of enforcement should be clarified. For instance, “The Regulation must explicitly include the scope to extend findings to all products from an entire production site or economic entity, given that forced labour will not be isolated to one product line within a facility. Simply put, the problem is the facility and not the product per se.” The text should also “include the possibility to establish region-wide bans” (e.g. cotton from Turkmenistan and the Uyghur Region). The signatories also call on companies “to map and publicly disclose their suppliers, sub-suppliers and business partners in their whole value chains” - failing which “competent authorities, as well as petitioners, will face significant obstacles to identify the presence of entities implicated in forced labour within a company’s value chain.” The signatories also delve into the importance of protecting petitioning workers from non retaliation and any potential immigration enforcement action.
