Labour law as an avenue to address forced labour : lessons for South Africa from a United Kingdom and Brazilian perspective

Abstract

The abolition of forced labour has been one of the International Labour Organisation's (ILO) core mandates since its formation in 1919. During that era, forced labour was commonly used in colonial empires by colonial governments to propel production and cut labour costs. In an endeavour to achieve the significant reduction of its use, the ILO mandated its members who ratified its Forced Labour Convention to declare the use of forced labour a criminal offence and assign strict penalties to it. Over and above the Convention's historical foundation, this standard has been carried into the international community's twenty-first century efforts to eliminate forced labour. Consequently, forced labour has for the past eighty-seven years been characterised as a criminal offence in national laws. Despite the deterrent nature that criminal sanctions ought to serve, it seems that the incidence of forced labour has not witnessed a significant reduction. Recent evidence points out that there is a rise in the use of forced labour in private economy work. This rise has been attributed to a number of factors that highlight that criminal law centred approaches to forced labour are susceptible to gaps and failures. The non-preventative nature of these approaches tends to focus on the punishment of offenders and fail to pay due regard to the need to put in place measures to prevent its occurrence. In addition, adoption of such an approach results in a focus on improving the criminal law to better respond to the offence. Along this line, the contribution of the labour law and its enforcement mechanisms has been side lined and not been developed to properly address the offence. In a recent turn of events, the introduction of the Protocol of 2014 to the Forced Labour Convention demonstrates the ILO's recognition that criminal enforcement alone cannot eliminate forced labour. Through this new Protocol, cognisance is taken of the importance that the labour law and labour market institutions may play towards eliminating the offence. The Protocol makes it binding for· signatories to involve labour market institutions in national strategies tailored to curb the offence. It further calls for renewed efforts to fight forced labour in an integrative and multi-dimensional manner that not only focuses on reacting to the crime but also puts in place measures to prevent its occurrence. The Protocol envisions frameworks where employers' organisations, trade unions as well as labour inspectors' roles are properly asserted in national forced labour laws. Meanwhile, human trafficking has also found audience within the forced labour discourse due to the relationship between the two offences. Whilst the two offences are normally seen as counterparts, this relationship has been overemphasised resulting in frameworks that lean on human trafficking to address forced labour. As a result, such approaches fail to extend coverage to all forced labour victims because its occurrence is not always linked to human trafficking. In effect, forced labourers who have not been trafficked are left with no clear indication as to what their remedy is. Currently, the South African framework to forced labour appears to mirror the standard introduced by the Forced Labour Convention through its strict criminalisation of forced labour. The prohibition of forced labour is recognised as a human right within the country's constitutional framework. However, the legislative framework tailored to give effect to this right is not fully compliant with the aspirations of the Convention. Contrary to the broad coverage envisioned by the Convention, the Basic Conditions of Employment Ads endeavour to punish forced labour is restricted to forced labour that affects workers who are considered as 'employees' for purposes of the Act thus leaving forced labourers whose employment relationships fall beyond the Act without a remedy. The enactment of the Prevention and Combating of Trafficking for Persons Act also does little to fill this legislative gap as it merely identifies forced labour as an outcome of human trafficking. It appears that beyond the trafficking framework, no clear remedy lies for general forced labour victims. Contrary to the South African approach, the United Kingdom and Brazil have adopted progressive measures to deal with forced labour and ensure that their frameworks meet the international standards of the Convention. In particular, the UK has moved away from a framework that relies on human trafficking to address the offence of forced labour in recognition of the fact that forced labour can occur independent of human trafficking. Whereas the Modern Slavery Act is founded on criminal law, it further introduces an opportunity for labour institutions to be involved through its establishment of the Office of the Anti-Slavery Commissioner. The country's Gangmasters Licensing Act also recognises forced labour as an issue of labour market concern through its endeavour to curb the practice in select sectors of agriculture. Labour market institutions such as trade unions have particularly asserted their relevance to making a significant reduction to forced labour. Brazil on the other hand employs a framework largely based on policies to support its Penal Code's establishment of the offence of slave labour. Brazil has made strides in the area of labour law involvement in the fight against slave labour through the extended reach of labour inspectors as well as the unrestricted jurisdiction of labour courts to make decisions on slave labour. Currently, the Brazilian framework largely emulates the measures introduced by the Protocol as binding towards signatories. Taken together, the UK and Brazilian approaches exhibit good examples from which South Africa may derive lessons to enrich its framework. While the importance of criminal sanctions should not be downplayed, the current approach adopted by South Africa does not meet the standards proposed in the Convention, neither does it reflect attributes of the 2014 Protocol on Forced Labour. In light of this, it is necessary to ask and address how and to what extent the international, English and Brazilian law may assist South Africa adjust its labour laws to meet the international standard. This exercise is meant to highlight to South Africa that its current approach is susceptible to failures and may hence whittle down global efforts to curtail the crime.