Introduction
Unifor is Canada's largest union in the private sector, representing more than 320,000 workers across every major sector of the economy, including manufacturing, transportation, energy, communications, retail and service sectors.
We welcome the opportunity to respond to Global Affairs Canada's (GAC) consultation on the regulatory approach under Bill C-35, An Act respecting the prohibition of the importation of goods produced by forced labour. As a union, we strongly support government measures taking aim at reducing and eliminating the entry of goods made from forced labour into Canada. This is integral not only from a human and labour rights perspective, but in protecting Canadian jobs as well. It is critical that an import prohibition, human rights and labour due diligence and civil liability legislation work in tandem to strengthen overall effectiveness, with proper coordination and communication with other national governments, business, labour unions and civil society partners.
The following portion of our submission responds to the questions posed in Part One on how the proposed list of goods contemplated under Bill C-35 should be developed and administered, and the type of information importers of listed goods should be asked to provide. Our responses have been developed in close collaboration with our labour and civil society partners with the aim of protecting workers and eliminating all forms of labour exploitation.
Evidence
Unifor believes that the government should draw on a diversified evidence base rather than relying on any single source of information. This would include:
- Internally produced government research on forced labour, developed by ministries and agencies including, Employment and Social Development Canada (ESDC), the Canada Border Services Agency (CBSA) and Global Affairs Canada (GAC). This would require enhancing their respective investigative capacity with dedicated resources and expanding mandates to conduct proactive supply chain research;
- Intelligence-sharing agreements and international networks with other national governments that also have forced labour import bans and encouraging joint declarations with allied nations;
- Independent supply chain research and reporting, including from academic institutions, journalists, think tanks, NGOs; and
- Civil society intelligence gathered by domestic and international trade unions, global union federations (GUFs) and other workers’ rights advocacy organizations that maintain direct relationships with workers in high-risk sectors and regions.
Unit of Listing
While raw materials and value-added, downstream goods present serious traceability challenges, both should, nonetheless, be eligible for listing. A focus on only primary inputs, while ignoring the finished manufactured goods could create easily exploitable loopholes. Canada must be prepared to identify downstream products that contain, or are at reasonable risk of containing, inputs produced with forced labour, not only the primary commodities themselves.
We recommend that Canada presume broad application when specifying an entry - by producer, sector, region, or a combination - while building in a clear, time-limited opportunity for individual producers to demonstrate compliance. A positive determination of forced-labour risk should trigger an appropriate notice period, giving importers an opportunity to demonstrate compliance before the full prohibition applies.
Finally, where Harmonized System (HS) codes are used as indicators for specific products - particularly downstream goods - Canada must establish robust processes to monitor and respond to evasion.
Relationship to existing measures
Bill C-35 currently defines forced labour by reference to ILO Convention No. 29 (the Forced Labour Convention, 1930). Notably, the Bill does not reference the 2014 Protocol to Convention No. 29, which reflects the evolving nature of modern forced labour, including debt bondage, trafficking and other exploitative practices. In addition, it does not reference the ILO's eleven operational indicators of forced labour, which serve as the practical assessment tool used internationally by labour inspectors and enforcement officials to determine whether forced labour is present in any given case.
It is unclear why the federal government has opted for this narrower, more rigid definitional approach when broader and more current international regimes are readily available and already inform Canada's other labour and human rights commitments. We recommend that Bill C-35 provide further definitional clarity by explicitly incorporating the 2014 Protocol and the eleven ILO indicators as interpretive tools for officials making listing determinations. This would align Canada's approach with internationally set standards and ensure that modern forms of coercion are captured by the prohibition. We further strongly encourage the inclusion of child labour in addition to forced labour, to further align with Canada’s proposed due diligence measures.
Civil society and worker input
Bill C-35 does not currently contain an independent petition mechanism, giving full determinative jurisdiction over what is added or omitted from the list to the Minister's office under subsection 6(1). This is a significant gap. Without a formal channel for workers, trade unions and civil society organizations to bring forward evidence of forced labour and trigger a review, the list risks becoming narrow, slower in responding to risks and disconnected from the realities faced by workers on the ground.
Unifor recommends that Canada establish an independent, transparent petition mechanism, available to trade unions and other civil society stakeholders, allowing them to formally request that a good, producer, or region be investigated for possible listing. Canada already has experience with a comparable model through the Canada-U.S.-Mexico Trade Agreement’s (CUSMA) Rapid Response Labour Mechanism, which allows facility-specific complaints (made by a trade union or worker) to trigger investigation and remedy. The lessons learned through that mechanism should directly inform the design of a C-35 petition process.
At minimum, an effective petition mechanism requires:
- Clearly identified contact points within government, ideally staff with substantive labour expertise (for example, at ESDC), able to receive and assess petitions;
- Published petition guidelines, including the form evidence should take and realistic timelines for government response;
- A reasonable evidentiary standard on which officials will be required to investigate and make a determination on whether to proceed (with a requirement to explain why a negative determination was ordered);
- A commitment to investigate and issue a determination within a defined timeframe.
Confidentiality is essential to the integrity of this process. Experience with the Rapid Response Labour Mechanism has shown that workers and their advocates may face serious retaliation - including dismissal, threats and violence - for coming forward with any complaints. Government must establish secure protocols for receiving evidence in a range of formats (including audio recordings, photographs and documents) and must protect the anonymity of workers and sources wherever possible. We further support the reverse-onus burden of proof contemplated under Bill C-35, which shifts the evidentiary burden onto importers once reasonable grounds are established.
Review and delisting
Unifor recommends that the Canadian government examine the United States Department of Labor's Bureau of International Labor Affairs (ILAB) three-factor model for determining whether a good should be removed from a forced labour or child-labour list. These factors include:
- Factor 1 - Significant reduction in child labour/forced labour: Using a variety of research and data sources, the Department of Labor (DOL) examines whether child or forced labor in the production of the good has fallen below the threshold of ‘more than isolated incidences’.
- Factor 2 - Systems to address and prevent child labour/forced labour: The DOL examines whether safeguards are adequate to prevent and respond to future cases of child labour or forced labour. Examples would include a strong legal framework related to child labour, forced labour and human trafficking, a strong presence of labour inspectors in relevant sectors and the establishment of referral and complaint mechanisms.
- Factor 3 - Independent corroboration of information related to the reduction of child labour/forced labour: The DOL will corroborate the information using a variety of sources, including the presence of independent unions, worker representative groups, NGOs representing workers’ interests and grievance mechanisms for labour and human trafficking complaints.
This comprehensive framework offers a useful starting point for Canadian officials, and any Canadian equivalent to the DOL framework should require producers to demonstrate that immediate conditions have changed before an entry is removed from the list.
Effects of listing
A listing decision that results in a ban on imports into Canada, without a corresponding remediation pathway can leave the very workers the law is meant to protect without wages, without a path to justice, and in some cases at greater risk of retaliation or job loss.
Remediation should therefore feature prominently in the design of importer exemption requests made during notice-period process. Where a positive determination of forced labour is made, the notice period should be used not only to allow importers to demonstrate compliance, but to actively support remediation for those workers affected as well. Effective remediation efforts should be overseen by an independent oversight body.
This should be complemented by international assistance and union-led technical assistance programs, focusing on key areas such as workers’ rights and health and safety education, legal rights training and legal clinic access and worker leadership development and training programs.
International alignment
Canada should pursue close alignment and collaboration with key international partners already operating forced labour regimes in some key areas. These include:
- Intelligence sharing across partner countries, especially with respect to forced labour investigations, supply chain research and identification of high-risk producers, regions and goods;
- Greater border enforcement collaboration, so that goods refused entry in one partner jurisdiction on forced labour grounds, cannot simply be re-routed through Canada to a new destination;
- Multilateral remediation strategies, developed jointly with partner governments, trade unions and civil society organizations, to support the workers affected by listing decisions.
