COMMENT | First, I would like to congratulate the British High Commissioner and US ambassador for highlighting the need to end forced labour. It is indeed a global phenomenon that includes Malaysia, the UK, and the US. As they rightly point out,

“Rock bottom wages and poor treatment of migrant workers also hurt economic development and growth at the macro level. The problems that poor treatment of migrant workers creates for Malaysia’s image in the global economy makes moving manufacturing up the value chain and creating skilled, well-paying jobs for Malaysians more difficult, hampering the country’s broader growth and development aspirations.”

Yes indeed, and the plight of all workers whether migrants or low-paid Malaysian workers in a country where the minimum wage is just RM1200 should give cause for concern and urgent remedial action. It is important to note that forced labour anywhere is a scourge and it is also evident in developed countries such as the US and UK.

For example, one form of forced labour, largely hidden, exists in the US and UK prison systems. In the US, there are approximately 1,800,000 prisoners in the “prison-industrial complex” and 80,000 in the UK.

Some 60 percent of US prisoners work while incarcerated and this penal labour is a source of cheap captive labour. (US PIAAC Survey of Incarcerated Adults, 15.11.2016)

In the US, the historical circumstances following the abolition of slavery provide the necessary context to understand how prison labour became possible.

Although the US Constitution’s Thirteenth Amendment prohibited slavery, it provided a loophole for “punishment for crime whereof the party shall have been duly convicted”, which made productive prison work possible.

Courts can no longer sentence criminals to forced or hard labour but under the 1952 Prison Act rules, it became an offence to refuse to work, or refuse to work hard. Prisoners who fail to work properly or refuse work will be punished:

“The Covid-19 pandemic has highlighted structural inequities in many ways, namely through its disproportionate impact on the physical and psychological health of communities of colour.

“It has also expanded the use of prison labour, as nearly every state in the United States has announced that it is relying on incarcerated populations to manufacture protective equipment, wash potentially contaminated hospital laundry, disinfect cleaning supplies, and dig graves.

“All the while, prisoners are denied access to hygiene products and basic medical care. Despite the nation’s dependence on prisoners, it continues to view their lives as disposable.

“The United States has a long history of failing to provide labour protections and paying little-to-nothing for incarcerated labour, akin to modern-day slavery. It is not surprising that these operations have roots in Black chattel slavery. In the post-Civil War Reconstruction era, former slave owners in the South sought to replace the labour force that had worked for free under antebellum conditions.

“Southern states created the ‘black codes’, a set of discriminatory laws that criminalized the everyday activities of former slaves so that they could be conveniently leased to work on private plantations, coal mines, and railyards.

“These practices were constitutional because of the loophole written into the Thirteenth Amendment that permits enslavement as a punishment for crime.” (The Shadow Workforce: Prison Labor and International Trade, Harvard International Review, 26 Oct 2020)

Influenced by enormous corporate lobbying, the United States Congress enacted the Prison Industry Enhancement Certification Program in 1979 which permitted US companies to use prison labour.

With the drastic increase in the prison population during this period, profits for participating companies and revenue for the government and its private contractors soared.

The Federal Bureau of Prisons now runs a programme called Federal Prison Industries (UNICOR) that pays inmates under one dollar an hour. The programme generated US$500 million in sales in 2016 with little of that being passed down to prison workers. (Al Jazeera Sept 9, 2017)

Firms including those in the technology and food industries are often provided tax incentives to contract prison labour, commonly at below market rates. Today, prison labour is a billion-dollar industry.

For example, Walmart has purchased produce from farms worked by women prisoners with inadequate medical care, and very low pay, while workers flipping burgers at McDonald’s wear uniforms that were manufactured by prison labourers.

Further, UNICOR manages 83 factories and more than 12,000 prison labourers who earn as little as 23 cents an hour working at call centres, manufacturing items such as military body armour, military uniforms, missile parts for defence contractors Raytheon, Lockheed Martin, Boeing, and General Dynamics:

“In April, Russell Stover candy production facilities in Iola and Abilene, Kansas, began using prison labor through the Topeka correctional facility in response to staffing issues disrupting production lines.

“About 150 prisoners work at the plant, making $14 an hour with no benefits or paid time off, while other workers start at higher wages with benefits and paid time off. Kansas also deducts 25 percent of prisoners’ pay for room and board, and another 5 percent goes toward a victim’s fund. The prisoners also must pay for gas for the nearly two-hour bus ride to and from the plant.” (The Guardian, July 20, 2021)

In recent years, prison labour in the US has become an alternative to outsourcing work to countries with lower labour costs.

A wide variety of companies such as Whole Foods, McDonald's, Target, IBM, Texas Instruments, Boeing, Nordstrom, Intel, Wal-Mart, Victoria's Secret, Aramark, AT&T, BP, Starbucks, Microsoft, Nike, Honda, Macy’s, and Sprint and many more actively participated in prison in-sourcing throughout the 1990s and 2000s.

In the UK more specifically, the National Minimum Wage Act 1998 excludes working prisoners from its scope. In a report of the Howard League for Penal Reform, it was documented that the average pay for prison service work is GBP9.60 per week, while it has also been reported that some prisoners work up to 60 hours per week.

Certain private companies pay about GBP2 per hour for prisoners’ labour. Private employers get prisoners to work for them in prison and thus avoid their obligations to pay the minimum wage. (LSE British Politics & Policy, Sep 27, 2021)

The issue was discussed in a UK Supreme Court decision, where it was pointed out that the relationship of the working prisoner and the prison authorities differs from an employment relationship: prisoners do not work based on contract, but because they have been sentenced to imprisonment, they are only paid nominally. However, these features ‘rendered the relationship if anything closer than one of employment: it was founded not on mutuality but on compulsion’. (ibid)

The element of compulsion that the Court recognised makes working prisoners more vulnerable to exploitation than other workers and should give grounds full protection of labour rights. Moreover, there should be scope for recognising an employment relation for prisoners who are employed voluntarily and not under the threat of sanctions. Not all contract service work is mind-numbingly boring (and some companies pay better than others) but the irony is that even prisoners with the worst of jobs, with the lousiest pay, prefer to be employed, rather than remain in their cells. The prison service knows this and exploits it.

In 2020, there was an attempt to put prisoners to work on Malaysia’s giant palm oil plantations to make up for an acute labour shortage heightened by the coronavirus pandemic. This was rightly condemned as “institutionalised forced labour” in an industry already accused of widespread abuse and exploitation of workers.

Human rights for working prisoners

In the UK, the prisons ombudsman and the chief inspector regularly criticise the low-paid, repetitive work that does little to train and prepare prisoners for the competitive external labour market. This often consists of long working hours and the quality of the work does not support their reintegration while private firms make profit from this situation. The fact that this work is linked to structures of exploitation from which profit-making organisations benefit must make us question this supposed justification. (‘Human Rights for Working Prisoners’ by Virginia Mantouvalou, Sept 8, 2021, UK Labour Law)

Virginia Mantouvalou, Professor of Human Rights and Labour Law at UCL, Faculty of Laws has advocated:

“For prison work to be fair, radical change is needed: prisoners must earn real wages, have workers’ rights, and pay tax and social insurance contributions. It is only through radical change of the legal framework on working prisoners’ rights that their recruitment by private companies can be acceptable. Without that, the authorities will be playing a major role in structures of exploitation and violate the human rights of working prisoners.”

The ILO Declaration on Fundamental Principles and Rights at Work obliges member States to eliminate forced labour. It merely sets minimum standards for all countries; they can naturally achieve higher standards of protection of workers. Work relationship should be freely chosen and free from threats.

KUA KIA SOONG is Suara Rakyat Malaysia (Suaram) adviser.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.