"How does a company ensure decent working conditions and equal treatment for migrant workers within its own operations or those of its business partners and suppliers when operating in a jurisdiction where migrant workers form a significant part of the workforce and where the government does not provide them with adequate protection?"

Although migrant workers are vulnerable to exploitation in many situations, responsible companies are most likely to come across this dilemma via business partners or suppliers. While a company will often place emphasis on transparency, quality and responsibility in its own recruitment and treatment of migrants, it will generally have less control over the employment practices of its business partners and suppliers. Therefore, the risk of complicity in the exploitation or unequal treatment of migrant workers is heightened for a company with extensive supply chains over which it has limited oversight or influence (e.g. second and third tier suppliers and sub-contractors).

The already tenuous circumstances permeating migrant workers' existence are often amplified by the fact that current regulation in emerging economies, from which many multi-national corporations (MNCs) source supplies, largely fails to adequately protect them. This is reflected in the fact that only 42 countries have ratified the UN Convention on the Rights of All Migrant Workers.1 Likewise, labour legislation and workplace cultures in some countries, particularly in the Gulf, explicitly provide for preferential treatment and higher payment for domestic workers than for migrants.

The dilemma for business, therefore, is how to ensure decent working conditions and equal treatment for migrant workers within its own operations or those of its business partners and suppliers, given the complex legal and cultural contexts in which such abuses may occur. The dilemma is further complicated by sometimes convoluted recruitment structures and practices, as well as the motivations and drivers (including the business case for employing migrants) behind migration itself.

Given such considerations, a company may face challenges in prioritising and implementing risk mitigation strategies that are affordable, practical and can be rolled out along a supply chain.

Real-world examples

Apple audits find migrant workers paying excessive recruitment fees totalling US$852,000 at six of its suppliers

Apple's Supplier Responsibility: 2009 Progress Report2 highlighted some of its supplier's complex and unfair recruitment practices. Six of Apple's suppliers would recruit workers from agencies and the hired workers were required to repay the recruitment fees to these agencies. The practice of recruiting through multiple third-party labour agencies resulted in workers paying fees that exceeded relevant legal limits (in this instance, US$852,000 in 2008). In numerous cases the quantities equalled several months' wages.

In its 2010 Supplier Responsibility: 2010 Progress Report,3 Apple noted that as a result of audits and corrective actions, migrant workers have been reimbursed over US$2.2 million in recruitment fee overcharges since 2008.

TV investigation uncovers exploitation of migrants at Hytex, a Nike supplier in Malaysia

In July 2009, an investigation44 by Australian television channel, Channel 7, alleged the exploitation of around 1,200 migrant workers at Hytex, an apparel factory in Kuala Lumpur, Malaysia. According to reports, workers were employed via agents in Myanmar, Bangladesh and Viet Nam. The factory makes t-shirts for major apparel companies such as Nike.

The investigation found that, although the factory met minimum wage requirements, workers were housed in sub-standard accommodation (with around 26 workers per bedroom and generally poor sanitation and hygiene conditions), had their passports withheld and were subject to excessive and unfair monthly wage deductions. Passports were allegedly retained to compel workers to pay their own employment-permit fees, ordinarily paid by the company.

Human Rights Watch reports on sub-standard working conditions for migrant labourers in the Russian construction industry

In a February 2009 report, Are You Happy to Cheat Us?,5 Human Rights Watch (HRW) noted that migrant workers in the construction sector in Russia are often subject to sub-standard working conditions. Furthermore, migrant workers are often not paid the salaries initially promised, are forced to work excessively long hours and are threatened or physically abused by their employers. They are often not protected by the authorities and HRW even records instances of police officials extorting money from these workers.

Russia has one of the largest migrant populations in the world, with approximately four to nine million migrant workers. Around 80% of migrants originate from the nine countries of the former Soviet Union with which Russia maintains a visa-free regime. Approximately 40% of migrant workers are employed in the highly unregulated construction sector.

• For examples of how MNCs such as Manpower, Apple, Nike and Timberland have provided training to migrants, by updating and implementing policies and providing direct remedial action for abuses, go to:
  Migrant workers case studies
• Please contribute your commentary or suggestions through our online discussion forum:
  Migrant workers online discussion forum

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As one of the primary drivers behind the global labour demand, procurement and distribution, most MNCs will encounter migrant workers either within their operations, or more likely through their supply chains. This is particularly the case when:

• Operating in or sourcing from key migrant destination countries (e.g. many Gulf states)6
• It operates in a key sector in which migrants are commonly employed (e.g. construction, manufacturing, agriculture, hotels and restaurants, health care etc.)
• Business needs demand the frequent employment of seasonal or temporary labourers, many of whom are migrants (e.g. agricultural and food and beverage companies)
• Companies in the supply chain use temporary labour migration programmes that often bind the employee to their employer (see ‘sponsorship schemes' below for more analysis)

MNCs are most likely to face this dilemma when sourcing from countries where:

• Domestic labour laws contain no explicit protection for migrant workers7
• Domestic labour laws with explicit protection for migrant workers are poorly enforced
• Social norms and customs dictate that the exploitation of migrant workers is tacitly accepted
• Companies have limited monitoring ability over extensive and complex supply chains
• Third-party recruiters are used without the imposition of adequate monitoring and accountability mechanisms

Key forms of exploitation

The legal and cultural contexts in many emerging economies mean migrant workers will often face challenging working conditions, as well as a lack of formal protection. This, as well as the fact that migrant workers will often be in circumstances that make them more willing to accept poor working conditions, makes migrant workers vulnerable to exploitation.

Exploitation can include:

• The withholding of passports or other official documents (e.g. see the Hytex example above, where passports were allegedly held to compel workers to pay their own employment-permit fees)
• The charging of significant "placement fees" by recruitment agencies and brokers (e.g. see the Apple example above, where migrants at six suppliers paid recruitment fees equal to many months' wages)
• The non-payment of wages and overtime8 (e.g. see the Russia example above, where HRW reports that migrant workers in the construction sector are often not paid the salaries initially promised and are forced to work excessively long hours)
• Low wages (particularly in the context of the global recession, which may result in migrant workers being forced to accept lower wages and poorer working conditions in order to preserve their jobs9)
• Illegal or unfair deductions or withholding of wages (e.g. compulsory deductions for food or accommodation - see the Hytex example above, where workers were subject to excessive monthly wage deductions)
• Inadequate living conditions, including overcrowded, inappropriate or unsanitary company-provided accommodation
• Long working hours and inadequate rest periods (e.g. a July 2008 report by Human Rights Watch, As If I Am Not Human,10 notes that migrant domestic workers in Saudi Arabia often work 18 hours a day, seven days a week)
• Sub-standard occupational safety and health (e.g. migrants may be more likely to accept such conditions due their circumstances11)
• Contract substitution (where a contract signed in the country of origin is substituted with another upon arrival that has worse conditions, for example in terms of pay, holidays, etc.)12
• Trafficking and forced labour (e.g. footwear and apparel company PUMA's Sustainability Report 2007/200813 noted that the majority of employees at its supplier factories, and migrants in particular, "are more vulnerable to attempts at forced labour")

Exploitation is not limited to, but often occurs among the unskilled migrant workforce. Unskilled migrants are concentrated in lesser-paid and/or temporary or seasonal employment.

Lack of protection

The types of protection that migrants commonly lack include:

• Equal protection compared to other workers under national law
• Specific protections under national law, especially in export processing zones and free trade zones (e.g. the draft Labour Law in the UAE allows employers to confiscate employees' passports)
• Access to remedy (e.g. due to financial costs, language barriers, a lack of understanding and awareness of national laws and legal systems and fear of retribution and repatriation etc.14)
• The right to join or form a trade union or to access civil society support groups (e.g. foreign workers in Jordan are barred from trade union membership, collective bargaining and striking)
• Access to benefits such as social security, education, healthcare and maternity protection
• Adequate pre-departure or skills training in their country of origin
• Orientation training in destination countries (e.g. in its Global Citizenship Report 2007,15 computer company HP notes that migrants in its Central European supplier factories are challenged by language barriers and cultural differences and lack knowledge of their rights and entitlements)

Sponsorship schemes

The risk of exploitation may increase in countries such as Kuwait, Qatar and South Korea, where visas are tied to specific employers through temporary labour migration and sponsorship schemes.

As Amnesty International argues in an October 2009 report, Disposable Labour: Rights of Migrant Workers in South Korea, migrant workers on temporary contracts may be less inclined to register official complaints over maltreatment for fear of punitive measures, including those that could place their visa status at risk.16 As a result, auditing and other monitoring measures may not uncover the unequal treatment or exploitation of migrant workers in a company's supply chain and prevent companies from taking remedial action.

Recruitment practices

Suppliers or business partners may outsource the recruitment and management of migrant workers to third party recruiters or brokers. The consequences of outsourcing recruitment include:

• Breaking the system of direct accountability between the employer and their employees. This dynamic can lead to employers denying or altering the terms of employment offered to the worker by the recruiter, for example
• Recruiters concentrating on the volume of placements (and therefore increased revenue) instead of ethical practice

In a December 2009 report, Integrity in Foreign Employment: An analysis of corruption risks in recruitment,17 for example, Transparency International (TI) noted that there are regular and numerous allegations of deception and other unethical exploitative practices employed by Sri Lankan employment agents. Furthermore, there are large numbers of illegal recruiters (including sub-agents and unlicensed agencies) who provide forged documentation and other illegal services, adding to the complexity of the recruitment process in Sri Lanka. TI reports that migrants have to pay illegal fees to recruiters and that all intermediaries in the migration process "presented corruption risks to job seekers."

Unscrupulous conduct by recruitment agencies and other employment intermediaries is common in many migrant exporting countries. Outsourcing the recruitment of migrants to brokers and recruitment agencies can result in enhanced risks to migrants, including excessive recruitment fees, contract substitution on arrival, and passport confiscation. Without robust recruitment standards and requirements being placed on suppliers, a company risks complicity in the exploitation or unequal treatment that can result from indirect recruitment practices.

In March 2009, for example, operators of a labour leasing company in the US, Giant Labor Solutions, were indicted18 in Kansas on charges of racketeering and trafficking. The charges related to the company's alleged practice of threatening migrant workers with serious harm and of cancellation of their visas unless they performed the work assigned to them. Furthermore, it was claimed the company did not pay regular salaries, charged for a wide range of unreasonable or unexplained fees and levied exorbitant rents for sub-standard accommodation in which workers were required to reside. This combination of infringements of workers' rights allegedly resulted in a situation of debt bondage. Giant Labour Solutions reportedly had labour contracts with clients in the hotel, casino and construction industries in 14 US states (also see the Apple case study in which migrant workers had paid over US$2.2 million in recruitment fee overcharges since 2008).

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Examples of scenarios companies might face when operating in emerging economies include:

China: There are approximately 252.78 million internal migrants who travel from rural to urban areas for work each year. Migrant workers face de facto discrimination; as they lack official residence status in cities, they struggle to gain full access to social services, including education. The legal terrain and societal stereotypes generally limit migrant workers to undesirable vocations. Many suffer abuse by employers and officials, and often work in hazardous conditions, particularly in the construction sector.

HRW noted in a January 2009 press release, China: Economic Crisis Increases Risks for Migrant Workers19, that the economic crisis "could well spark a ‘race to the bottom' in rights protections and work conditions as employers exploit migrants desperate to work."

India: In the introduction to its 2008 Draft Protocol on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked and Migrant Child Labour, the Indian Ministry of Labour claimed that "there is an increasing trend of migration and trafficking of children for labour in different parts of the country." The Ministry noted that the background to this phenomenon is re-location to cities from economically deprived rural settings, as well as under-employment and a lack of income-generating opportunities for families.

Mexico: Central American migrants are often the subject of severe human rights abuses and have become increasingly vulnerable in Mexico. Abuses are usually perpetrated by criminal gangs that often operate with the complicity of local authorities. The UN Special Rapporteur on the human rights of migrants noted that violations are committed with ‘rampant impunity', due to high levels of corruption, and even possible collusion between public security forces and the perpetrators.20 The situation is so severe that several bodies within the UN have made urgent calls to the government to ensure that migrants are better protected, and some of the most influential NGOs, such as Amnesty International and Human Rights Watch, continuously monitor the situation. This pressure led the government to pass a law in April 2011 to "strengthen the protection and security" of migrants. The law specifies that undocumented migrants cannot be detained for more than 36 hours. It also provides them with "access to health, education and justice services and recognizes their legal status, independently of their migratory situation."21

According to a UN News Centre report, Mexico: despite progress, much remains to be done for migrants, says UN rights expert,22 the UN Special Rapporteur on the Human Rights of Migrants raised concerns in March 2008 that migrant workers in Mexico, particularly those who originate from indigenous communities in Guatemala, Honduras and Nicaragua, often work in poor conditions. Many work excessive hours, lack health insurance, suffer physical and verbal ill-treatment, sexual harassment, and threats that they will be handed over to the immigration authorities because they are undocumented.

Russia: There are an estimated four to nine million migrant workers in Russia. There are also reports that an estimated one million illegally employed migrants are forced to work without pay, often after employers withhold their passports. Around 40% of migrants are employed in the construction industry.

In 2009, following a survey with citizens of African origin on Racial Violence and Harassment in Russia, the Moscow Protestant Chaplaincy reported that nearly 58.5% of the respondents living in Moscow had been victims of violent attacks and physical abuse. Amongst refugee respondents, 85% stated they had faced discrimination while living in Russia.23 In 2010, the NGO Sova Center reported 37 deaths and 368 injuries resulting from ethnically motivated attacks. According to the NGO, Moscow, St. Petersburg and Leningrad were the regions with higher incidence of racially motivated violence in 2010.24

In a February 2009 report, Are You Happy to Cheat Us?,25 Human Rights Watch (HRW) found that employers in the construction sector often fail to pay workers fully and promptly. In some cases wages are not paid for several months. According to HRW, those who protest are often subject to violence and threats by construction site guards, police and others.

South Korea: The South Korean Employment Permit System requires migrant workers to annually renew employment contracts with their employers for a period not exceeding three years. This can place migrant workers in a vulnerable position as, in practice, very few migrant workers lodge complaints if their working conditions are inadequate for fear of the non-extension of their contracts by their employers. Likewise, non-Koreans received limited legal protection from discrimination and disputes over non-payment of wages involving migrant workers are commonplace.

In a 2009 report, Amnesty International found that both regular and irregular migrant workers in South Korea face a range of human rights violations. These include discrimination, verbal and physical abuse, a requirement to work long hours and night shifts, many without overtime pay, and withholding of wages. AI also reports that on average, migrant workers receive lower wages than South Korean workers employed in comparable roles and are at heightened risk of industrial accidents, for which they receive inadequate medical treatment or compensation. The international NGO claims that a lack of training, language barriers, discrimination and unsafe work environments are among the reasons for the disproportionately high number of industrial accidents among migrant workers.26

Viet Nam: Increasing internal migration from rural to urban areas has largely resulted from high levels of unemployment in the rural sector and the promise of better wages in urban jobs.

Internal migrants lack formal rights to live in cities due to a household registration system. Migrant workers, therefore, may face higher housing, water and electricity costs, as well as steeper fees for medical treatment and education. Many workers in this category have difficulty accessing decent housing and are forced to live in crowded accommodation.

In a May 2011 report, the UN Independent Expert on Human Rights and Extreme Poverty noted that internal migrant workers are at particular risk of working long hours for little pay, in violation of labour laws.27

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The failure to address exploitation of migrant workers could result in three main risks:

Legal action

Legal action may be brought against a company by migrant workers and/or activists working on their behalf. Typically, it may relate to the exploitation of migrants, notably in relation to their working conditions. Adjudication has the potential to result in substantial legal costs and damages, the use of valuable management time, reputational damage and the potential for civil and criminal sanctions.

In 1999, for example, three class action lawsuits28 were filed in the US against 27 retail companies (including GAP, Tommy Hilfiger and Calvin Klein), as well as 23 garment factories based on Saipan Island.

Saipan is in the US Commonwealth of the Northern Marianas Islands. As a result, many retailers chose to have their garments manufactured there as they can be exported to the US mainland exempt from tariffs or quotas. In addition, workers on Saipan are exempt from many US immigration and labour regulations and the majority of the workforce is made up of Asian migrants.

Two of the class actions were filed on behalf of 30,000 migrant workers in relation to exploitative working conditions, including involuntary servitude, unpaid overtime and breaches of the minimum wage. A third was brought by the Union of Needletrades, Industrial and Textile Employees against the deceptive advertising of the garments as "sweatshop free".

In 2004, all three cases were brought to a close with a US$20 million settlement that included 26 retail companies and all 23 Saipan garment factories. The parties agreed upon a code of conduct, independent monitoring, and monetary compensation as part of the settlement.

Reputational damage

Reputational and brand damage may arise as a result of sustained or high-impact negative publicity and activism, including by NGOs, trade unions and journalists (see the Hytex example above). Often, activism will focus on exploitative working conditions in a company's supply chain.

In June 2009, for example, the Guardian newspaper reported in an article, Union takes migrant worker fight to Tesco AGM,29 that UK trade union Unite accused UK supermarket chain Tesco at its Annual General Meeting of damaging race relations and social cohesion by allowing the exploitation of foreign agency workers in its UK meat and poultry supply chains. According to the Financial Times, in February 2008 Unite had also organised an on-line Internet campaign, as well as demonstrations, which alleged there was "widespread discrimination" against migrant working in UK-retailer Marks & Spencer's meat suppliers.30

Poor worker/management relationships

Exploitative working conditions and the unequal treatment of migrant workers may result in poor worker/management relationships as a result of demoralisation, anger and a feeling that the worker is being treated unfairly.

This can manifest through disaffection in the workplace, but also through potentially protracted labour disputes. Animosity in the workplace can result in supply chain disruption if it escalates to the level of a strike. Less dramatically, poor workplace relations and high levels of dissatisfaction may also affect general productivity.

In a July 2009 report, Going it Alone – The Workers' Movement in China (2007-8),31 for example, NGO China Labour Bulletin (CLB) reports that migrant workers are the driving force behind many labour disputes in China. The CLB says that such disputes arise as a result of the institutionalised discrimination and poor working conditions that migrants experience in China.

Risk to suppliers

The high-volume, ‘just-in-time' purchasing patterns commonly used by MNCs may result in suppliers opting to ‘cut corners,' and remove some safeguards within the workplace. There may be a perception by the supplier, for example, that it is cheaper to pay workers less and extend working hours as opposed to hiring additional workers and cutting into its profit margin.

Nonetheless, where suppliers engage in exploitative practices, including in relation to the recruitment and employment of migrant workers, they may face additional risks to those outlined above. In the worst case scenario, for example, suppliers risk losing the business of major MNCs upon the discovery of exploitation, poor working conditions and the unequal treatment of migrant workers. In other cases, they may face costly remedial action.

For example, following investigations into human rights infringements committed against 1,200 migrant workers at Hytex (a Nike supplier in Malaysia - see above), Nike required the manufacturer to:

• Reimburse migrant workers for fees associated with employment (e.g. recruitment and work permit fees)
• Pay all future fees associated with employment as a cost of doing business
• Provide return airfares for workers wishing to return home, irrespective of contract requirements
• Move workers into new Nike-inspected and approved housing
• Provide workers with immediate and unrestricted access to their passports
• Provide workers with access to a 24-hour Nike hotline to report abuses in the workplace

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In order to promote decent working conditions and equal treatment for migrant workers, companies should comply with national laws regulating labour. Where national laws are set lower than international standards, MNCs should strive to meet these higher standards. The process of amending policies and implementing augmented safeguards for migrant workers could be achieved by carrying out human rights due diligence focusing on the regulation of recruitment, working conditions and the housing situation of migrant workers.32 Where appropriate, a company can also conduct regular social audits and provide company-level grievance mechanisms that are accessible to migrant workers.

Specific actions for responsible business might include:33

1. Issue company policies and procedures

Socially responsible companies will often have developed and implemented human rights policies and procedures that support ethically sound decision-making. Along these lines, a company may consider adapting codes of conduct to ensure that they promulgate equal employment and non-exploitation practices with regards to migrant workers. The company may consider issuing a stand-alone policy or amending an existing human rights policy where it relates to migrant workers.

A company may consider making the following commitments:

• Comply with national law relating to migrant workers at minimum and aspire to adherence with international standards and best practice
• Refrain from engaging in or supporting unequal treatment or exploitation of migrant workers in hiring, termination, remuneration, training, promotion or retirement
• Avoid restrictions on migrant workers that amount to discriminatory treatment, including the withholding of passports and other travel documents
• Adopt a zero-tolerance approach to unequal treatment and exploitation, which could include an internal mechanism to promptly and comprehensively investigate any allegations of human rights infringements
• Enshrine clear guidelines with regards to recruitment practices (including those of suppliers and business partners where possible) that contain specific recommendations on recruitment fees and contracts
• Ensure that any company-provided accommodation for migrants and other workers is ‘adequate' as defined by international standards
• Inaugurate monitoring and auditing mechanisms to oversee implementation of company policy
• Regularly review the policy and view it as a ‘living document' given the complexities and evolving nature of labour migration

As part of its Standards for Contractors and Suppliers,34 for example, Jones Apparel Group states that contractors and suppliers using migrant labour must ensure that:

• Migrant workers are treated fairly and on an equal basis with the local workforce
• All original travel and identification documents remain with the workers
• Migrant workers have secure individual storage to safely maintain travel and identification documents during the time of their employment

• In 2009, Apple updated its Supplier Code of Conduct to include extra protections for migrants following the discovery of excessive recruitment fees paid by migrants in its supply chain. Apple suppliers are now required to take responsibility for the entire recruitment process of direct and contract workers, including for payment of all fees. See:
  Apple (Global)
• Nike implemented new policies for its Malaysian suppliers, including in relation to housing, recruitment fees and grievance mechanisms, following allegations of poor living and working conditions at a Malaysian supplier. Provisions include, amongst others, that suppliers should pay all future fees associated with employment as a cost of doing business, and provide workers with immediate and unrestricted access to their passports. See:
• Nike (Malaysia)
• Please contribute your commentary or suggestions through our online discussion forum:
  Migrant workers online discussion forum

2. Provide staff training

Where due diligence actions have highlighted increased risk of exploitation, a company may consider providing training to staff, suppliers and business partners on the recruitment and treatment of migrant workers. This should be focused on the personnel most likely to come into contact with migrant workers such as:

• Procurement personnel
• Supply chain managers
• Construction project managers

Training might include reference to the relevant international standards, including the Core Labour Standards and the Convention on the Rights of All Migrant Workers, and could be updated in-line with new innovations and adjustments to best practice.

Companies might also consider adapting existing worker training programmes to accommodate migrants more easily. This might include, for example, the offer of local language courses to improve communication, and enhance productivity and worker safety. Additional training and orientation programmes could also be provided to migrant workers to ensure that they have access to equal opportunities in the workplace, and to support their assimilation into the local community.

• Canadian food processing company Maple Leaf Foods partnered with the International Organization for Migration (IOM) in 2007 to recruit migrant workers to work for Maple Leaf in Canada. Through this partnership, the IOM provides pre-departure orientation in the form of English language and cultural training, while Maple Leaf trains migrants on arrival, with a focus on life skills, health and safety, language and job skills. See:
  Maple Leaf Foods (Canada) - in-depth
• Timberland partnered with global labour rights advocate organisation Verité to provide life skills training to its workers in China. Part of this training was directed specifically at migrant workers, with a particular emphasis on Cantonese language skills. See:
  Timberland (China)
• Business services company Manpower conducts language programmes in nearly every country in which it operates. In Mexico, Manpower works with the Mexican Institute for Migration to provide Spanish-language lessons to candidates as a part of the training process. See:
  Manpower (Global)
• Western Union provides education programmes and tools to migrants, including community orientation, basic language skills and careers advice as part of its five-year US$50 million giving program ‘Our World, Our family.' See:
  Western Union (Global)
• Please contribute your commentary or suggestions through our online discussion forum:
  Migrant workers online discussion forum

3. Conduct audits

When operating in sectors or regions in which migrant workers are common, a company should consider improving oversight of its own operations and those of its suppliers to ensure compliance with national law and international standards that relate to the recruitment and treatment of migrant workers (whichever are more stringent).

This could include regular audits of major suppliers in countries where migrants' rights are less protected (as identified through due diligence initiatives) or where the employment of migrants is common. Additional independent third-party audits could be considered where feasible, particularly in situations in which internal audits have not proven fully sufficient.

Regular monitoring is important to ensure continuous improvement of working conditions within the supply chain. Companies may seek to conform to internationally recognised standards such as SA8000, with auditors paying special attention to the treatment of migrant workers. Corrective action should be taken immediately if unequal treatment or exploitation of migrants is found.

Audits could include:

• Interviewing management on the understanding and implementation of company policies and procedures, including the recruitment and employment of migrant workers
• Inspecting workplace and accommodation for any signs of malpractice or poor living and working conditions
• Interviewing migrant workers to gain an understanding of the recruitment and employment practices used by the employer, in order to ascertain any breaches in standards (including whether the worker is aware of the rights, protections and grievance mechanisms that are available)
• Inspect contracts, visas and other documents in order to identify excessive and/or unfair recruitment fees, the withholding of official documents or other anomalies

For example, the ‘Information and Communications Technology (ICT) Supplier Self-Assessment Questionnaire,'35 produced by the Global e-Sustainability Initiative Supply Chain Working Group and the Electronic Industry Code of Conduct as a joint initiative,includes the following questions:

• Does your facility use foreign or migrant workers?
• Does facility use workforce recruiters to provide foreign or migrant workers? If so, who pays the fees?
• Who is responsible for the safekeeping of travel documents for foreign workers at your facility?
• Are any of your workers within the supply chain required to deposit money or identity papers prior to taking up employment?

• Please contribute your commentary or suggestions through our online discussion forum:
  Migrant workers online discussion forum

4. Consider amending recruitment practices

If feasible, a company should recruit migrant workers directly rather than through the use of brokers. Alternatively, it may be advisable for a company to set reasonable recruitment fees and fair contracts with employment agencies, thereby minimising the risk of migrant workers being charged unfair fees.

A company may also choose to publish and communicate guidance on its expectations with regards to the recruitment and employment of migrant workers, including by business partners and suppliers.

Given that the risk of exploitation is likely to be higher within the supply chain, a company may wish to incentivise suppliers to improve their recruitment practices. This can be done, for example, by providing preferential terms to suppliers who recruit directly. A company may also work with suppliers to set fees and contracts with employment agencies and to encourage suppliers to work with recruiters to verify that the candidates' skills conform to the job description in question. It may be necessary to fund these programmes – in full or in part – in order to encourage initial up-take.

• In response to a labour shortage in Canada, Maple Leaf Foods developed an innovative approach to the recruitment of migrant workers, including through the establishment of an International Recruitment Office and a partnership with the International Organization for Migration. See:
  Maple Leaf Foods (Canada) - in-depth
• In 2009, for example, Apple Inc. updated its Supplier Code of Conduct to require suppliers to take responsibility for the entire recruitment process of all workers (including contract workers). Under this scheme, suppliers are responsible for payment of all fees and expenses in excess of one month of the worker's anticipated net wages. See:
  Apple (Global)
• Please contribute your commentary or suggestions through our online discussion forum:
  Migrant workers online discussion forum

5. Ensure that migrant workers are free to leave at any time

Migrants should be able to leave their employment freely at any time, in accordance with the provisions in their employment contract. Companies should not retain any important document or other items (e.g. passport, driving licence, identity papers or sums of money) belonging to the workers that may have the result of impeding their right to free movement.

It might be advisable to inform suppliers and business partners of these standards and consider enforcing them through independent audits where feasible and affordable. Confidential whistle-blowing mechanisms may also be another mode of enforcing these guarantees.

• Nike implemented an action plan in its Malaysian supply chain to ensure that migrant workers in a supplier factory can leave at any time, including by providing workers with immediate and unrestricted access to their passports. See:
  Nike (Malaysia)
• Apple's standard for the Prevention of Involuntary Labour in its Supplier Code of Conduct limits recruitment fees to the equivalent of one month's net wages. It specifies management practices regarding contract requirements, grievance processes, agency management, and the handling of workers' passport. It states, for example, that "Workers must not be required to surrender any government-issued identification, passports, or work permits as a condition of employment." See:
  Apple (Global)
• Please contribute your commentary or suggestions through our online discussion forum:
  Migrant workers online discussion forum

6. Provide grievance and remedial mechanisms

Migrant workers should be able to voice concerns and grievances without punishment. A company could develop confidential and transparent grievance mechanisms, such as whistle-blowing hotlines and other complaints mechanisms, particularly in countries where migrants may be denied access to other remedies (for instance, due to fears of losing their visa status).

Such mechanisms should be multi-lingual (where necessary and appropriate) and available to all workers. In the event that labour standard breeches are verified, protocols should be in place to provide just compensation.

Migrant workers often lack access to remedy due to cultural constraints, as well as a lack of legal knowledge and language barriers. As a result, a company may consider trying to address any cultural impediments that could prevent migrant workers from raising concerns.

A company might also encourage suppliers to implement similar procedures within their own operations. Where suppliers are based in countries in which migrants are regulated by a sponsorship scheme, the company could consider offering access to confidential whistle-blowing hotlines to suppliers' employees. This gesture would enable migrant workers to voice concerns and grievances without fear of retribution, including any action that could place their visa status at risk.

• In August 2008, for example, upon discovery of unfair wage deductions and substandard accommodation for migrant workers at one of its Malaysian t-shirt suppliers, Nike swiftly acted to remedy the situation through some non-negotiable and immediate changes. Nike also committed to review its entire Malaysian supply chain and to require adherence to rigorous standards. See:
  Nike (Malaysia)
• Please contribute your commentary or suggestions through our online discussion forum:
  Migrant workers online discussion forum

7. Engage stakeholders to enhance migrant worker protections

On a case-by-case basis (and where appropriate) companies could work with host governments, recruitment agencies, migrant workers and other actors to improve laws, processes and practices designed to enhance protection for migrants. Options might include working with peers to develop a unified position for engagement or participation in sector-wide initiatives to develop best-practice guidance.

• As a member of the Temporary Labour Working Group, for example, UK retailer Marks & Spencer worked with the UK government, industry and trade unions to develop the UK Code of Practice for Labour Providers in preparation for the introduction of a government-run gangmaster licensing system in April 2006. The Code of Practice acted as a voluntary measure intended to provide best practice guidance to labour providers and labour users, prior to the implementation of impending legislation. See:
  Marks & Spencer (UK) - in-depth
• Upon discovery of human rights infringements committed against migrant workers in a Malaysian supplier, one aspect of Nike's response was to participate in several meetings with government officials to ensure that the government was "acutely aware of the expectations of major global customers and brands related to providing fair and reasonable treatment to workers."36 See:
  Nike (Malaysia)
• The Business and Migration Initiative developed by the International Business Leaders Forum and the Institute for Human Rights and Business (with support from Manpower) "seeks to foster greater business involvement, facilitate dialogue, strengthen the debate and support private-sector led initiatives to raise standards in this business-critical field." See:
  The Business and Migration Initiative (Global)
• Please contribute your commentary or suggestions through our online discussion forum:
  Migrant workers online discussion forum

8. Provide adequate housing to migrants where required

Where necessary and appropriate, a company might provide accommodation to migrants or help them find adequate accommodation provided by third parties.

Where a company provides migrant workers with accommodation, they need to ensure it fulfils certain basic criteria including security of tenure, availability of utilities and other services (e.g. sewage facilities and access to safe drinking water) and meets standards of affordability, habitability, accessibility and cultural adequacy.37

Where necessary, a company might consider conducting regular site visits to ensure that all workers have access to adequate housing and accommodation. Assessments could be conducted to verify that the accommodation conforms with the basic criteria set out above. The Guidance on Workers' Accommodation,38 developed by the International Finance Corporation and the European Bank for Reconstruction and Development, as well as ILO Recommendation on Workers' Housing (No. 115),39 provide good examples of the types of requirements that a company might consider if providing accommodation to migrant workers.

• Upon the discovery of the provision of inadequate housing to migrants workers within its Malaysian supply chain, Nike assisted in providing alternative Nike-approved accommodation. See:
  Nike (Malaysia)
• Canadian food processing company Maple Leaf Foods finds migrant workers (hired on a two-year temporary foreign worker permit) apartments to let and pays the first month's rent. The company also provide beds and bedding, a welcome package, a month bus pass and grocery coupons to help the workers until they receive their first salary payment. See:
  Maple Leaf Foods (Canada) - in-depth
• Please contribute your commentary or suggestions through our online discussion forum:
  Migrant workers online discussion forum

9. Provide information to migrant workers about trade unions

In most countries, migrant workers are entitled to the same rights to form trade unions as domestic workers. However, language and cultural constraints (including the status of unions in the country of origin) can mean that migrant workers are not aware of their rights to freedom of association and collective bargaining. Where this is the case, a socially responsible company might consider providing relevant guidance and instruction.

This could include, for example, providing materials on how to join a union in different languages. Where trade union membership is outlawed, a company could suggest, create or provide information on other forms of worker representation.

• Please contribute your commentary or suggestions through our online discussion forum:
  Migrant workers online discussion forum

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Definition of a migrant40

A migrant is a person who moves from one place to another to live (and usually work), either temporarily or permanently. Migrants may move within their country of origin or abroad.41 The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families42 defines a migrant worker as "a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national."

Regular migrants enter a country to stay and participate in a remunerated activity pursuant to the law of that country and to the international agreements to which that country is a party.

Irregular migrants enter a country and work in violation of the law, owing to undocumented entry or visa expiration. Due to their lack of legal status, they often work in the informal economy and might not benefit from labour legislation and social protection.

International standards43

All migrant workers, regardless of their status, are entitled to protection under the eight fundamental ILO Conventions and the relevant UN human rights instruments.44

The ILO has two international labour conventions specific to migrants, the Migration for Employment Convention No. 97, (1949) and the Migrant Workers (Supplementary Provisions) Convention No. 143, (1975).45 Both of these conventions comprehensively define the rights of migrant workers and advocate the principles of equal treatment, equality of opportunity and non-discrimination. The ILO has also adopted the non-binding Multilateral Framework on Labour Migration46, which brings together aspects of protection of migrant workers with those relating to the contribution of labour migration to development.

These instruments call for equality of treatment and opportunity between migrants and nationals in the following areas:

• Employment
• Remuneration
• Social security
• Trade union rights
• Cultural rights and individual freedoms
• Accommodation
• Employment taxes
• Access to legal proceedings

The UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)47 builds upon and expands the ILO Conventions. It applies to all aspects of the life of migrants, including the migrant's family and the situation of women and children. The ICRMW articulates the principle of equality of treatment between migrant workers and nationals with respect to remuneration and other working conditions, calling for equality of treatment with regards to migrant workers' access to urgent medical assistance and education for their children. In the ICRMW, equality and non-discrimination extends to irregular migrants.

Together with the ILO Conventions, this legislation defines a comprehensive charter of migrant rights and provides a basis for national policy and practice on migrant workers. It is worth noting that even though the treaty entered into force in 2003, it only has 42 parties, most of which are countries of origin rather than destination. To date, Canada, the US and much of the EU have not signed the ICRMW.

Dynamics behind labour migration

Key drivers behind labour migration include:

• Shortage of adequate employment to support workers and their families in their own countries
• Socio-economic and political crises in migrant source countries
• A dearth of specialist skill-sets and/or cheap labour in migrant destination countries (often driven by strong growth, ‘shortages' of domestic labour or rigid societal norms)
• Widening wage gaps within, as well as between, developed and developing countries
• Demographic changes, with countries with declining and aging populations more likely to encourage migration

Migrant workers are often valued for numerous attributes, including:48

• Filling local labour shortages
• A willingness to accept comparatively lower wages
• Limited tax and social security payments on the part of the employer
• A reduced likelihood of absenteeism and low turnover

Key sectors and regions where migrants are commonly found

A migrant's gender, as well as their skills, often determine their employment and labour migration outcomes. According to the Global Migration Group, male migrants are commonly employed in construction and manufacturing, while women are concentrated in health, education, and domestic services. However, female migrant workers also form a significant proportion of those employed in manufacturing and are almost equally represented in hotels and restaurants in OECD countries.

Migrant workers in industrialised countries primarily work in industry and construction (40%), and service sectors (50%). In the Middle East, many migrant workers are engaged in domestic work and construction, while in Southeast Asia, around 32% of migrants are engaged in manufacturing and the remainder in services, construction and agricultural sectors.

International migration

Migration for employment affects most countries around the world. The International Organisation for Migration estimates49 that there are 214 million international migrant workers. This figure represents around 3% of the global workforce. In addition, there are between 20 and 30 million irregular migrants.

In the southern hemisphere, workers from poor sections of society often migrate between low income countries. Similarly, middle-income countries tend to attract migrants from nearby low-income countries. This is often down to travel costs (migration costs to developing countries are lower and more widely affordable), poor controls and cultural similarities. A case of the latter is the substantial labour flows between the porous borders separating Bangladesh, India and Nepal - countries with cultural and historical similarities.

Figure one: International migrants by destination region - 200850

Region	International migrants living in the region (million)	Migrants as a percentage of the total population (%)	Overview
Africa	17.74	1.9	International migration to Africa has remained relatively static in recent years (e.g. an increase of 600,000 between 2000 and 2005). Sixty-nine percent of international migrants in Africa originate from within the region, the majority destined for Southern and West Africa. North African countries such as Libya and Tunisia are increasingly used as ‘transit' points for irregular migrants attempting to enter Europe.
Northern America	45.60	13.6	The US and Canada continue to be major receivers of permanent migrants globally, with growing demand for temporary workers in the food and service industries. With 38.4 million migrants (20.2% of the total population), the US is the primary destination country for migrants globally (e.g. 90% of Mexican migrants are in the US).
Latin America and the Caribbean	6.87	1.2	Latin America and the Caribbean accounts for over 13% of all international migrants – around 70% migrate to the US and 30% within the region. Argentina is the top destination country in Latin America and the Caribbean (1.5 million migrants), followed by Venezuela (1 million) and Brazil (641,000).
Asia	55.13	1.4	Asia is characterised by very large intra-regional flows of migrant workers. Countries like Malaysia, Singapore and Thailand are increasingly attracting highly skilled workers from more developed countries/areas within and outside the region. Asia is the largest source of temporary contractual migrant workers and also contains the top three origin countries for migrant workers: China (diaspora of 35 million), India (diaspora of 20 million) and the Philippines (diaspora of 7 million).
Europe	64.40	8.8	Europe's regional dynamics differ from other regions due to the EU objective of creating a common migratory space. Many migrants, therefore, originate from within the region (e.g. from Eastern to Western Europe). Russia (12.1 million) and Germany (10.1 million) rank 2nd and 3rd globally as destinations for migrant workers.
Middle East	19.00	32.3	Migration to the Middle East is increasing (up 3.2 million between 2000 and 2005). Middle Eastern countries have the highest concentration of migrant workers as a percentage of the overall population. For example, 78.3% in Qatar, 71.4% in UAE, 62.1% in Kuwait, 40.6% in Bahrain, 25.9% in Saudi Arabia and 24.4% in Oman. An estimated 8.7 million Asian migrants in the Middle East are on temporary contracts.
Oceania	5.52	16.4	Predominant destinations are Australia and New Zealand. Migration accounts for one-quarter of population growth in Australia, New Zealand and Pacific Ocean island countries. Skilled migration is growing significantly, including of women into managerial and other professional positions, although temporary migration accounts for a large proportion of this.

Internal migration

Often more affordable and requiring less cultural and linguistic adaptation, the scale of internal migration is greater than that of international migration.51 Due to remoteness and the cost of travel, the poorest migrants tend to migrate within national borders52 – as exemplified in China where up to 230 million migrate internally.53 Drivers behind internal migration vary, and may include seasonal (agriculture) migration and varying degrees of economic growth within countries (e.g. India). Internal migration is thought to include a greater number of income groups than international migration.54

Human rights impact

Other human rights that are typically associated with infringements of the rights of migrant workers include:

Right to an effective remedy for acts violating fundamental rights (ICCPR, Article 3): A lack of suitable work-based grievance mechanisms may hinder migrant workers from accessing remedies for human and labour rights abuses. This is particularly the case where the legal framework and culture in a country prevent migrants from seeking adequate access to remedy.

Right to freedom of movement (ICCPR, Article 12): The freedom of movement of migrant workers can be severely restricted through, for example, the confiscation of passports or other travel documents.

Right to equality before the law, equal protection of the law, and rights of non-discrimination (ICCPR, Article 26): Migrant workers can be subject to unequal treatment when compared to nationals. This is likely to occur in recruitment processes, as well as in terms of the legal protections that they are afforded in the workplace.

Rights of minorities (ICCPR, Article 27): Migrants have the right to enjoy their own culture, practice their own religion, and to speak their own language without discrimination. Due to their status, migrant workers may be denied this right as a matter of official policy or through societal discrimination.

Right to an adequate standard of living (including access to adequate food, clothing, housing and water) (ICESCR, Article 11): Companies that provide housing to migrant workers can directly infringe on this right if the housing is not of an adequate standard.

Right to equal remuneration and conditions of work for migrant workers (ICPRM,55 Article 25): Many migrants experience lower pay and poorer working conditions than their domestic counterparts. This can be due to discrimination, prevailing legal frameworks, the legal status of migrant workers and market dynamics.

Right of migrants to form associations and trade unions (ICPRM, Article 40): In many situations, migrants may – due to their legal status, the legal frameworks in which they operate in or their relatively weak negotiating position – be denied the right to freedom of association.

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