1 FOREWARD How weak corporate governance and internal controls in the palm oil industry allow abuse of foreign and local workers and how ESG investment fails to recognise these issues CRUEL OUTCOMES SEPTEMBER 2020 This report is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of Liberty Shared, a program of Share (Asia Pacific) Limited, and do not necessarily reflect the views of USAID or the United States Government. DISCLAIMER : The content of this document is for information purposes only and should not be relied upon for making business and investment decisions. Readers should conduct their own due diligence and seek specific professional advice. DUNCAN JEPSON 3 Managing Director INTRODUCTION INDUSTRY FAILINGS Fourth, the implementation of corporate sustainability and ethical practices is a desired end state, one that will be dynamic This document does not seek to revisit or summarise previous and active. However, there is no chance at all of achieving the research and conclusions about abuse suffered by migrant workers creation of an organisation that is sensitive to the wider social entering Malaysia to work on palm oil plantations. There are and environmental issues without that company having robust, many excellent reports and materials available that examine the sufficient and well implemented corporate governance, risk abuse of workers and the failures of companies to improve their management and internal controls (together organisational plantation management practices, such as Amnesty International’s corporate governance and controls). From the examination of Trapped: The Exploitation of Migrant Workers in Malaysia, (2010)1; annual reports and sustainability statements, and considering Business and Human Rights S.L (www.bandhr.com); Fair Labour what has been learned from workers themselves, it is clear Association’s Mapping Study on Seasonal Agriculture Workers and that design and implementation of corporate governance, Worker Feedback and Grievance Mechanisms in the Agricultural risk management and internal controls and the design and Sector, (2018)2; Suisse Solidar’s Exploited and Illegalised: The Lives implementation of a sustainability agenda remain two parallel of Palm Oil Migrant Workers in Sabah, (2019)3, and Earthworm lines of management activity. Never meeting, the development Foundation’s Insights Into Recruitment Costs and Practices Amongst of sustainability practices and the development of organisational Small-Medium Sized Companies In The Palm Oil Industry In corporate governance and controls are largely considered Peninsular Malaysia, (2019)4. separately. This is very convenient for many corporations and This document argues that, firstly, despite over a decade of boards of directors as the arrangements keep the objectives of reporting and research on abusive recruitment practices and sustainable practices away from corporate governance, which abusive working conditions on plantations and despite the has regulatory and legal requirements, and therefore avoids representations and statements set out in the increasingly creating joint and several obligations and liability on the board of prolific human rights and sustainability corporate disclosure, directors and senior executives. it is time to accept that a substantial proportion of the millions Finally, it is time that the vast cornucopia of public disclosure of individuals arriving to offer their labour to plantations, created in the name of sustainable and ethical practices is linked of whatever size, do so in a state of vulnerability caused clearly and transparently to implemented underlying organisational by the manner of their recruitment. Whether due to debt corporate governance, risk management and internal controls and arrangements, poverty, illegal status or deception, the palm oil the underlying laws and regulations that require such organisational industry, particularly those who lead the industry, should and corporate governance and controls. The formulation and publication must seek to alleviate and resolve these vulnerabilities and not of these policies, as expensive as the process of creation is, must exacerbate and capitalise on them by allowing vulnerability to lead to identifiable ongoing, consistent and monitored corporate become a lever for coercive and abusive labour management procedures and practices that are enforced by the business - it is practices by plantations managers, supervisors and forepeople. these that must be clearly disclosed on a regular basis. Second, it seems clear that the ongoing industry-wide failure to Ultimately, the sections of annual reports dedicated to prevent abusive and coercive practices on plantations is caused organisational corporate governance and internal controls should by deep structural issues grounded in a long history of terrible set out plantation management of labour and the mechanisms labour practices begun in the industrial rubber agricultural of controlling relevant third party relationships, i.e. recruitment sector during the British administration of Malaya and largely agents. It should be clear how the aims of the sustainability and continued since then to today. ethical practices are to be achieved within the organisational Third, evidence of the comprehensive and far-reaching work corporate governance, risk management and controls. The failure needed to build and implement a governance framework to to implement sufficient and robust corporate governance, risk remedy and rectify this situation, in other words to create management and internal controls allows the abuse suffered by businesses and a business-operating environment that actually migrant workers to be compounded once on the plantation and offers vulnerable workers support to reduce and resolve their the abuse of future migrants by recruitment agents to continue. vulnerabilities, rather than exploit them, appears sorely lacking. Effective and sufficient corporate governance, risk management and internal controls should create standard management and operational policies, procedures and practices in regard to the 1. https://www.amnesty.org/en/documents/ASA28/002/2010/en/ 3. https://www.solidar.ch/sites/default/files/palmoel_report_2019_e_web.pdf 2. https://www.fairlabor.org/sites/default/files/documents/reports/grievance_mech- 4. https://www.earthworm.org/uploads/files/recruitment-practices-malay- anism_mapping_study_report_final.pdf sia-2019.pdf management of plantations, the current lack of such practices adds challenging and they may well be uninterested but there is little a further dimension to the arguments about the weakness and excuse for the large and mega businesses. These are the industry insufficiency of management in the palm oil industry to provide leaders and they have the operating capital, or they can go to adequate protection for vulnerable workers on plantations. the market and raise the capital, to invest in the development of the necessary organisational corporate governance and controls. It will be costly to create and implement the needed governance SUMMARY to ensure a safe working environment and to mitigate vulnerabilities arising from workers' journeys to recruitment and Before considering the methods of recruitment of individuals to to ensure there is a proper contracting and onboarding process the palm oil industry, which can be divided into four categories, that does not create a situation of forced labour. it is important to recognise that there are issues for both local and migrant workers. Regardless though of whether the worker is a These two stages should be separate and distinct and where local or a migrant there are two common stages to consider. they do and must interface or integrate then the governance and controls should be in place to prevent the workers’ First – the recruitment journey vulnerabilities, particularly those arising from the first stage, The first stage is the introduction of the work opportunity and being further abused. the movement of an individual to a situation in which they can be hired (i.e. form a contractual relationship to work on a plantation in return for payment, directly or indirectly, by that plantation). RECRUITMENT JOURNEY Palm oil plantation businesses may or may not currently seek to have control over the manner of a worker’s journey but they Personally I am very hesitant to simply call this the recruitment can exert substantial influence over the treatment of the people process, as many do, because from interviews with workers introduced to them for hiring and they can provide support to and from reviewing the research, it is clear that the process workers to remedy and resolve vulnerability. doesn’t necessarily end with a contractual relationship with the plantation. It does end with the individual suddenly situated Second – contracting and onboarding into the plantation workforce on a plantation but in many cases for migrant workers they are The second stage, the hiring stage, is very much in the have been given misleading/deceptive descriptions about the plantation’s control. It is well documented that recruitment conditions. Secondly, the individuals often have no idea of the agents regularly provide a contract to individuals in their home actual terms of work - basically, they have been identified as being country but too often a worker ends up with two or more prepared to work and then moved geographically. It is a