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Ethical Recruitment Practices and Forced Labour in China 1 Ethical Recruitment PracticesEthical and Recruit- Forcedment Labour Practices in China:and Guidelines Forced for EmployersLabour in China: Guidelines for Employers ETI | Ethical Recruitment Practices and Forced Labour in China 1 Content Introduction P.3 Relevant Legal Framework I. Global Framework P.4 II. China Legal Context P.5 Guidelines for Preventing Forced Labour: Recruitment, Employment, Termination I. Recruitment P.6 II. Employment P.18 III. Termination P.22 Management Systems to Prevent Forced Labour P.23 Additional Resources P.24 ILO Indicators of Forced Labour P.25 Appendix I: ETI Survey P.27 Appendix II: Case Studies P.28 (written & provided by CCR CSR) References P.35 ETI | Ethical Recruitment Practices and Forced Labour in China 2 Introduction Around the world, an estimated 21 million people are working in forced la- About ETI bour conditions, and many of them are part of global supply chains (ILO 2016). For 20 years, ETI and our These guidelines are specific to China as one of the most significant supply members have been a driving chain sourcing countries in the world. As more international regulations spe- force in ethical trade. We cific to modern slavery and forced labour are put in place, businesses have a influence business to act growing obligation to understand, address and report on forced labour con- responsibly and promote ditions in their supply chains. Awareness of modern slavery risks is also in- decent work. creasing—an ETI survey found that 77% of companies think there is a likeli- hood of modern slavery in their supply chains, and more companies are taking Taking a unique approach to business and human rights, our actions to strengthen their compliance in this area. members are forward-thinking companies, trade unions and While these guidelines cover potential forced labour risks throughout the em- NGOs. Together, we tackle the ployment process, from recruitment through termination, the in-depth focus complex challenges of today’s is on ethical recruitment practices. Ethical recruitment is essential as the global supply chains, improving starting point for preventing forced labour. Workers looking for jobs can be the lives of workers worldwide. vulnerable to misinformation and intermediaries who may charge fees or con- trol their wages and activities. The use of informal or illegal recruitment chan- For more information, visit our nels also heightens the risk of forced labour. While most recent attention on website at ethical recruitment has been focused on international migrant workers, it is www.ethicaltrade.org. also important to understand ethical recruitment in the context of China’s domestic workforce, which includes 286 million domestic migrants (NBS 2017). These guidelines provide employers operating in China with practical recom- mendations for addressing forced labour risks in their own businesses. The recommendations are based on ETI research about local context and current practices, including online surveys of workers and human resources person- nel regarding their experience with recruitment and employment practices. CCR CSR also provided information and case studies based on their experience investigating and remediating labour rights issues in China. ETI Base Code Clause 1: Employment is freely chosen. 1.1 There is no forced, bonded or involuntary prison labour. 1.2 Workers are not required to lodge "deposits" or their identity papers with their employer and are free to leave their employer after reason- able notice. ETI has conducted a series of training in major countries where the supply chains are located, to disseminate information about relevant laws and stand- ards, as well as introduce best practices to help suppliers prevent and elimi- nate modern slavery in the workplace. In response to possible risks emerging from labour supply chain, though outside the workplace, ETI recently part- nered with MicroBenefits to launch a “Responsible Recruitment Survey” for factories and workers respectively. The survey aimed to: • Understand current recruitment practices in Chinese factories • Identify challenges and risks in the recruitment/job-seeking process ETI | Ethical Recruitment Practices and Forced Labour in China 3 • Use survey data to inform the development of training materials on re- sponsible recruitment The questionnaire comprises questions about recruitment channels, risk management, pre-entry info-sharing & orientation or training, recruitment fees, child labour/juvenile workers, grievance, foreign workers and termina- tion and freedom to leave. The survey was deployed through multiple remote channels and responded by more than 4,000 workers and 200 recruitment/HR Managers from 20 la- bour intensive manufacturing sectors. Relevant Legal Framework I. Global Framework The ILO’s definition of forced labour is any work undertaken involuntarily un- der threat of a menace of penalty. The two aspects of the definition are: UK Modern Slavery Act (2015) (1) Whether the work is voluntary Businesses are required to Some workers are employed through deception, coercion, or intimidation, or report on the steps they are are forced to work in a particular job to pay off excessive debts owed to the taking to address modern employer or an intermediary. slavery. (2) Whether there is a potential penalty Modern slavery includes: - Forced labour Examples include financial penalties such as the loss of wages or deposits, - Servitude confiscation of identity papers or travel documents, physical violence or pun- - Human trafficking ishment, and removal of rights or privileges. Migrant workers are often par- ticularly at risk of ‘debt bondage’ where they are forced to work to pay off debts incurred through fees collected in the recruitment process. The ILO Indicators of Forced Labour identify common indicators that forced labour may be occurring. These include: 1. Restricted mobility of workers 2. Isolation of workers 3. Abuse of workers’ vulnerabilities 4. Deception of workers 5. Physical or sexual violence against workers 6. Intimidation and threats against workers 7. Retention of workers’ identity documents 8. Withholding wages 9. Debt bondage 10. Abusive living and working conditions 11. Excessive overtime working ETI | Ethical Recruitment Practices and Forced Labour in China 4 Additional international laws regulate modern slavery, of which forced labour is one type along with servitude and human trafficking. The UK Modern Slav- ery Act (2015) requires commercial organizations to report publicly on the steps they are taking to address modern slavery risks, including those risks occurred and actions taken in their overseas supply chains. Similar legislation requiring businesses to report on modern slavery now exists in France and Australia (ETI 2018), and other G20 countries have legislation in place specif- ically related to forced labour in supply chains (Global Slavery Index 2018). 1 II. China Legal Context China has laws and regulations against forced labour. The Penal Law prohibits “forcing another person to work by violence, threat or restriction of personal freedom” (Article 244, 2011 amendment). In addition, the Labour Contract Law (2007) has the following detailed provisions: Labour contracts shall be concluded in adherence to the prin- Article 3 ciples of lawfulness, fairness, equality, voluntariness, con- sensus through consultation and good faith. Employers are prohibited from detaining identity cards or Article 9 collecting recruitment fees or deposits. A labour contract shall be invalid if it is concluded or modified Article 26 against a party’s true intention by means of deception or co- ercion, or when the party is in a precarious situation. A worker may have the labour contract revoked if the em- Article 38 ployer is found to be failing to pay labour remuneration on time and in full. If an employer forces a person to work by resorting to vio- Article 38 lence, intimidation, or illegal restriction of personal freedom, the worker may revoke the contract without notice. The labour dispatching unit and the receiving unit may not Article 60 charge any fees to dispatched workers. Administrative and criminal penalties are in place for forcing Article 88 a person to work by resorting to violence, intimidation or il- legal restriction of personal freedom. The use of agencies and intermediaries is also regulated. The Labour Contract Law regulates the use of employees provided by dispatch agencies, and the Interim Regulations on Labour Dispatch (2014) limit the percentage of dis- patched workers in a company to 10%. The Regulations also restrict positions allowed for dispatched staff to 3 categories: temporary, auxiliary and replace- ment. Temporary staff can work for a term of no more than 6 months at one company. ETI | Ethical Recruitment Practices and Forced Labour in China 5 The Law on Promotion of Employment (2008) regulates employment ser- vices, including labour agents and intermediaries. Under this law, a job inter- mediary must be registered and meet certain conditions, and may not provide false employment information, take away a worker’s resident identity card, or take a deposit from the worker. Guidelines for Preventing Forced Labour: Recruitment, Employment, Termination I. Recruitment Conducting the recruitment process in a transparent and ethical manner cre- ates a strong foundation for protection of worker rights and mitigating risks of forced labour. Recruitment is a top business priority for the manufacturing sector in China, which relies on large workforces and
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