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In-depth interview with Andy Hall: "Companies should help prevent another witch hunt on human rights defenders and civil society"

Bobbie Sta Marta and Ana Zbona, Business & Human Rights Resource Centre, Feb 2017

Plum Village Zen Buddhist monastery is not where we were expecting to find Andy Hall - an international affairs advisor to the Migrant Worker Rights Network (MWRN) in Thailand and a well-known human rights defender - when we asked him for an interview. After leaving Thailand because of being harshly prosecuted because of his activism, he retreated to the Zen Buddhist monastery in Southern France where he spent 100 days of his life going inwards, being mindful, his movements limited to 3 temples in the countryside. He says it was hard to leave the country where he spent the last 11 years fighting for migrants’ workers’ rights – but harsh judicial harassment, most importantly by Natural Fruit, a company the abuses of which he was investigating, made it impossible to stay.

 

Natural Fruit , a Thai pineapple company, sued Andy after he authored a report for NGO Finnwatch in which Natural Fruit was found to have used forced labour. S Group of Finland took a groundbreaking decision to testify on Andy's behalf in Thai court against Natural Fruit, which used to be in their supply chain:  but Thai courts were unconvinced. Still, the support of S Group and other companies is something Andy found important and continues to count on for the future. In this time of uncertainty, Andy openly shares with us his thoughts, on the present, on the different positive and negative roles companies have played in his life and activism in the past years and on what's next.  

BHRRC: You left Thailand in November 2016 amidst increasing pressure from new criminal litigation filed against you for your 11 years or more of successful advocacy and campaigning on migrant rights. Prior to this, Bangkok South Criminal Court handed down a guilty verdict against you for criminal defamation and computer crimes in September 2016, and in November 2016, Thailand's Supreme Court acquitted you in a separate but related case. All of these cases were brought against you in the past by Natural Fruit Company Ltd. in relation to research you did on conditions for workers in their pineapple processing facility in Southern Thailand for a Finnwatch report. The new cases prosecuted against you concern Thailand's poultry export industry. Can you tell us more about your current situation?

Andy: Concerning the Natural Fruit case, I was found guilty of criminal defamation and computer crimes on 20th September 2016 and the Bangkok South Criminal Court sentenced me to three years in prison, suspended by two years, and fined me 150,000 baht. Following immediate payment of the fine jointly by the Thai Tuna Industry Association (TTIA), Thai Union Group and Finnwatch, I was released from detention. The Court's decision met with international criticism including statements of concern from the UN Office of the High Commissioner for Human Rights, the International Labour Organisation, European Trade Commissioner Cecilia Malmström and, on 6th Oct, a strongly worded European Parliament resolution was passed.

"In what was a very difficult decision, I left Thailand in November 2016, as the risk to my personal safety and freedom to effectively work on migrant workers’ rights had declined significantly."

As international affairs advisor of the Migrant Worker Rights Network (MWRN), I am currently working alongside MWRN also on an important test case, the so-called “chicken case,” where 14 migrant workers from Myanmar alleged that they worked in conditions akin to forced labour for periods of up to 4 years or more at Thammakaset 2 poultry farm, a poultry farm in Thailand that supplied poultry to Betagro, one of Thailand’s largest poultry processing and export companies. The 14 workers complained to the Lopburi Provincial Office of the Department of Labour Protection and Welfare (DLPW) in June 2016 regarding their conditions of work and serious violations of their rights under the Labour Protection Act 1998. In late June 2016 the 14 workers, with assistance from MWRN and the Department of Employment, left Thammakaset farm with no money and no jobs, their work permits and permission to stay in Thailand were about to expire. MWRN provided all humanitarian support for the workers for an extensive period of time. MWRN liaised with the Thai government and Betagro to support the workers further, but nothing substantial came of this request for support and the workers became unacceptably dependant on MWRN. In August 2016, the DLPW office in Lopburi ordered the farm owner to pay the 14 workers approximately 1, 700, 000 Baht in back wages and compensation. In September 2016, the 14 workers appealed the order, seeking 44 million baht as higher compensation and damages for forced labour. The trial in this case is scheduled for 21/22 February 2017.The Thammakaset Farm also appealed the DLPW order, and in December 2016 a Court again ruled in dismissing the farm's appeal that the order of the Lopburi DLPW office was lawful and the employer should pay it. Thammakaset Farm appealed this judgement further. The Thai Tuna Industry Association, as a poultry supply chain actor, has supported these 14 workers with new jobs, registration renewal and humanitarian aid given the refusal of Betagro or Thammakaset 2 farm to provide assistance.

"Again in this Betagro "chicken case", as was the case with Natural Fruit Company Ltd., whistle-blowers and human rights defenders are being silenced through threats, intimidation and the use of the Thai Criminal Code (criminal defamation provisions) and Computer Crimes Act."

Again in this Betagro chicken farm case, as was the case with Natural Fruit Company Ltd., whistle-blowers and human rights defenders are being silenced through threats, intimidation and the use of the Thai Criminal Code (criminal defamation provisions) and Computer Crimes Act. In June 2016, two of the workers that were involved in complaining about the conditions have been charged with multiple counts of theft by their employer, and if found guilty could face 7 years’ imprisonment, following a complaint from the Thammakaset 2 poultry farm to the police. On their last day of employment, in June 2016, the workers alleged the Lopburi police took all the 14 workers to the local police station and threatened to charge them with violation of the computer crime law as they had shared or liked posts by MWRN's team on Facebook, forcing them to sign numerous documents.  In October 2016, the 14 workers were then also prosecuted by the Thammakaset 2 poultry farm for criminal defamation concerning a July 2016 complaint on their case to Thailand's National Human Rights Commission. Thammakaset 2 poultry farm has also prosecuted me now also, in a criminal case, for MWRN’s social media campaign for justice in this case, alleging criminal defamation and computer crimes charges against me. The prosecution was filed in November 2016 and if found guilty, I could be subject to a fine of up to 200,000 baht and 7 year imprisonment. I have seen evidence now that Thammakaset Farm and Betagro have hired the same legal team used by Natural Fruit Company Ltd. to fight these litigation battles. So in what was a very difficult decision, I left Thailand in November 2016, after having lived in the country for 11 years, as the risk to my personal safety and freedom to effectively work on migrant workers’ rights had declined significantly.

BHRRC: What is the role of international brands in the “chicken case”? Have they been as helpful as S Group was in the Natural Fruit case? What’s the role of the suppliers?

Andy: Betagro is probably Thailand’s second largest poultry processing company and they are exporting around the world, mostly across Europe and to Japan. MWRN sent out an email, briefing companies around the world about this case, to the USA, UK, Canada, Australia and Europe. Like always, the positive response to our email communications came quickly only from the Nordic companies: Axel Johnson Group in Sweden (particularly Axfood and AxFoundation), and S Group in Finland. Other Nordic retailers, public procurers and poultry supplies also immediately sought to engage with Betagro and also with the workers, via MWRN. The upcoming criminal litigation and theft and defamation charges against the 14 workers who complained in this case and against me were mentioned in the EU parliament resolution in my case, which S Group, Finnwatch and MWRN jointly lobbied MEPs for. I didn’t hear back from other European or US-based companies, and the Ethical Trading Initiative (ETI) from the UK only sent weak, non-committed or vague replies with just one ETI member replying and saying that they didn’t source from Betagro anymore.

"Nordic companies feel a deep sense of shared responsibility to address abuses, and for me, that’s really exciting and innovative." 

When MWRN approach them, the Nordic companies immediately admit if applicable: “Yes, this supplier is in our supply chain, and we shall engage on this case.” Even if the supplier is not in their supply chain, they say they will talk to other buyers. These Nordic companies, particularly as I am aware Axfood, are now trying to develop guides to remedy abuses for human trafficking or forced labour or labour exploitation victims in their supply chains, and they are asking questions like: “Should we have a fund? A protocol? Should we interfere with the legal system of a foreign country? Where does responsibility lie?”. These companies don’t know how to move forward on this issue yet, but they recognize that under the United Nations Guiding Principles on Business and Human Rights (UNGPs) they have some responsibility to ensure a remedy for the situation of abuse, as much as is possible within their power. Companies sharing information and having this kind of an approach - that’s very inspirational for me and for MWRN and for migrant workers in Thailand, it really is ground-breaking. Nordic companies have called companies like Betagro to meetings in Europe, requesting companies in Thailand to explain what they are doing to address the situation, etc. – they don’t just do audits. Nordic companies feel a deep sense of shared responsibility to address abuses, and for me, that’s really exciting and innovative. Betagro was not the first case where this has happened, but it has been the most significant case.

"Some suppliers are acting positively, too. The Thai Tuna Industry Association (TTIA) members, and particularly Thai Union Group, they are starting to ask questions on responsibility for supply chain abuses, they have been seeking to address concerns of Nordic companies and European consumers, seeking to create innovative remedy channels."

Some suppliers are acting positively, too. The Thai Tuna Industry Association (TTIA) members, and particularly Thai Union Group, they are starting to ask questions on responsibility for supply chain abuses, they have been seeking to address concerns of Nordic companies and European consumers, seeking to create innovative remedy channels. MWRN reached out to Thai Union Group and TTIA for support, as tuna companies also purchased from Betagro’s supply chain for their pet-food and poultry products exported across the world, including to the USA. Thai Union provided humanitarian support, food and supplies and issued a press statement encouraging the chicken industry to improve. All 14 workers then managed to get jobs at TTIA factories, with assistance and liaison from MWRN and TTIA. Eventually after much pressure, the Thai Broiler Processing Export Association, of which Betagro and Thammakaset Farm is a member, provided support of 3,000 baht per worker and Betagro deposited without informing in advance 50,000 baht via MWRN's bank account in humanitarian support for the 14 workers. TTIA member factories agreed to support each worker with 1,000 baht also.

Real and open engagement between human rights defenders (HRDs), grassroots Civil Society Organizations (CSOs) and companies is very important. The dynamics have been changing a lot just in the past year, too. As little as a few years ago, companies would come to meet me in Bangkok, engage with me to share information and ideas, but would want to keep this cooperation secret, would not want to take photos or be public, as they felt it might endanger their relationship with other businesses or with their suppliers. Now some companies are being much more dynamic and open, even proud of the relationship they are having with a civil society increasingly under attack.

BHRRC: What led to this evolution of trust between you and the companies, especially with S Group? How did it get to the point where you felt comfortable asking S Group to testify on your behalf in the case that Natural Fruit brought against you?

Andy: The evolution of trust coincided with my decision to focus on linking human rights issues with trade and consumers. Before, I used to lobby at the UN Human Rights Council annually and particularly during Thailand's Universal Periodic Review (UPR) and during the reports of the UN Special Rapporteurs on migration or human trafficking, I was working within the human rights framework seeking to engage ILO or OHCHR mechanisms.  I was then recruited by Finnwatch to research their report to link labour exploitation with Finnish consumers and the Finnish supply chain, and the report we made really linked abuses with consumers. It was then that my and MWRN's work got increasing international attention. We moved beyond campaigning on human rights and 'face' to linking abuses to money and trade. A recipe for much greater potential for genuine responses from the Thai government and Thai industry.

Without Finnwatch, none of this positive work would have ever happened. Connecting as a Westerner with Sonja Vartiala and her team at Finnwatch and linking them through my work in Thailand with MWRN, knowing what they want and need, and delivering, that made the difference. The relationship for instance S Group has with Finnwatch, or Axfood has with Swedwatch, are essentially voluntary relationships. These companies don’t have to provide supply chain data to these organizations. There’s no law in Europe at the moment that would allow a consumer watchdog to know where imported products are coming from, so if these companies didn’t volunteer information to watchdogs, we wouldn’t have this information. S Group were very open with Finnwatch and then with MWRN and with me, and trust came from that - these kind of relationships don’t exist almost anywhere in the world. Finnwatch and Swedwatch generally don’t agree to confidentiality clauses of non-disclosure agreements, so companies are almost inviting criticism. But to put it another way, the companies see the positive role of civil society to be their eyes, to help them addresses challenges and promote their strengths, to help companies be more ethical.

"If these companies didn’t volunteer information to watchdogs, we wouldn’t have this information. S Group were very open with Finnwatch and then with MWRN and with me, and trust came from that."

Companies and these organizations should be very proud of this openness – this is not a relationship that comes from money, these NGOs don’t take any money from business, it’s all based on voluntary giving, ethics, a sense of responsibility or what is right and proper, there’s no signing of no disclosure agreements, companies know they are opening their supply chain to scrutiny, they decide to do so. In the times of anxiety, stress or pressure from my work in Thailand, this relationship and this behaviour has been a source of great inspiration and hope for me. It shows me the good that exists, the potential for positive change that can be developed together in an atmosphere of shared aspiration and peace.

BHRRC: What do you think prompted S Group to get so involved and to take such a strong position in your case? What can other companies learn from their response and from this case?

Andy: The usual immediate response by companies when any issues in their supply chains surface is to run away – but just moving on to the next supplier is very harmful to everyone, particularly the workers MWRN seeks to defend and empower. S Group not only opened their supply chain data to scrutiny (initially Natural Fruit's factory was confidential and was only to be cited as a 'pineapple factory' in Finnwatch's report until the factory refused to cooperate) and came to Thailand to meet with me and speak with the migrant workers and Natural Fruit, but they agreed to continue buying from Natural Fruit Company Ltd. after the Finnwatch report, needless to say, they would even surely start buying again now if all this aggressive and vindictive litigation could come to an end through some kind of reconciliation. All Natural Fruit needed and needs to do to get back direct European buyers is to allow a proper, external audit of their factories - even if the results came back negatively, S Group would work with Natural Fruit to remedy issues.

"When I was first prosecuted by Natural Fruit for the research, both Finnwatch and S Group were deeply offended, they took it so personally and felt a sense of shared responsibility to find amends for the situation, they felt shocked that this kind of thing could happen." 

When I was first prosecuted by Natural Fruit for the research, both Finnwatch and S Group were deeply offended, they took it so personally and felt a sense of shared responsibility to find amends for the situation, they felt shocked that this kind of thing could happen. How could a human rights defender be prosecuted for trying to assist victims of abuse? S Group got involved because they wanted to explain to the court that the reason Natural Fruit Company Ltd. lost orders was not because of me or because of the media attention from the Finnwatch report, but it was because of Natural Fruit’s behaviour, particularly the egoistical response of the owner of the company. S Group even brought notes from the meetings with Natural Fruit to the court, shared with the court all their supply chain data. Myself, S Group, Finnwatch and my legal team translated hundreds of pages of documents for the Court, we were passionate in trying to explain to the Court the real situation as we saw it. In the end, none of this evidence was cited in the Court's judgement. But whatever, the process of working together, whatever the result, was inspirational for me.

"Since S Group have been so open with Finnwatch and with me all along, I felt comfortable asking for S Group’s support. I wanted it to be the whole community and various stakeholders coming together to defend me, everyone saying that this behaviour by one bad egg is not acceptable. Other companies then got involved, 110 organizations wrote a letter to the Thai Prime Minister following my conviction, and many of them were companies." 

I felt it very personally when I was labelled as a criminal for doing something that benefits the public, for seeking to work together with others to develop and strengthen the rule of law in Thailand. You have your name in spotlight and attached to something negative, you’re sullied, so after that happened, I first didn’t know what to do. I refused to pay the bail money, my liberty was threatened but I felt martyrdom was a good path, I would stay in a cell until the pressure increased and I was allowed out, this was my idea. My passport was taken. But the more I thought, the more my family and friends worried at my response, I felt I needed to make this not just a case of an individual against a company, but rather poor behaviour against good behaviour, so I needed to get companies to support me. I needed to find a way to ensure that this dark cloud would have a silver lining, that something positive and inspirational could come of this attack. Since S Group have been so open with Finnwatch and with me all along, I felt comfortable asking for S Group’s support. I wanted it to be the whole community and various stakeholders coming together to defend me, everyone saying that this behaviour by one bad egg is not acceptable. Other companies then got involved, 110 organizations wrote a letter to the Thai Prime Minister following my conviction, and many of them were companies. Worker bravely stood up to defend what I said as truth, Thai companies like Thai Union, Unicord and Chotiwat Manufacturing Company Ltd. as well as the TTIA also defended me at trial.

"I felt it very personally when I was labelled as a criminal for doing something that benefits the public, for seeking to work together with others to develop and strengthen the rule of law in Thailand. You have your name attached to something negative, you’re sullied."

So this is the silver lining: this case gave companies and trade associations the opportunity to show they were seeking to be more ethical, moral and find ways to increasingly comply with UNGPs. Progressive companies were given the opportunity to defend HRDs, and some said they were privileged and proud to be able to contribute to that. I was privileged and proud to fight for so long knowing these companies and innovative actors were beside me.

BHRRC: How do you think involvement in your case affected S Group in a business sense?

Andy: S group also benefited from their involvement, as consumers want these kinds of things to be happening. S Group's model of cooperation with me has been cited positively by the United Nations High Commissioner for Human Rights, by the ILO, by the European Parliament and the European Trade Commission. S Group has proudly shared their work in London, New York, in Brussels and in Strasbourg.

"The Natural Fruit case gave companies and trade associations the opportunity to show they were seeking to be more ethical, moral and find ways to increasingly comply with UNGPs. Progressive companies were given the opportunity to defend HRDs, and some said they were privileged and proud to be able to contribute to that. S group also benefited from their involvement, as consumers want these kinds of things to be happening."

A lot of companies don’t have time and capacity to deal with grassroots organisations or HRDs directly, they prefer to work with expensive flashy consultants, a kind of USAID or American model of working. But in S Group, there’s a deep acceptance and commitment that companies need to work with HRDs and grassroots CSOs directly, to get a real sense of the situation and to bring that information to make informed choices and procurement. With S Group, it’s a relationship of give and take, but it’s very independent, they never seek to control what we do or say. In the coming months and years, both myself and MWRN will be making increasing demands to companies like S Group, and I think our demands will be taken on board willingly as a model of inspirational partnership.

BHRRC: How important was the role of the Finnish consumer in driving the positive response by S Group? What’s the role of other actors in supporting HRDs, together with business, and in incentivizing such business response?

Andy: Consumers are more interested in Finland or Nordic countries of course, there’s higher awareness, higher standard of living, education and principles of culture lead to a concern and a demand for Corporate Social Responsibility (CSR). So there is additional pressure there to ensure supply chains are clean, but that only goes so far and there’s a lot more to it than that as still even in these companies awareness is absent for many in the population. So its more than consumer pressure, it’s also about leadership from the company and the board, and passion, deep personal commitments, and acknowledgment that companies can bring change. I have had business leaders ring me up before – they’d tell me they can’t sleep at night because of what’s happening, because I was convicted, because workers are still being abused - these are very ethical and inspirational people that want to bring change. And they try to do that within profits- and competition-driven market set-up. I or MWRN need to work with these people as they understand how the market works, not just have a passion for human rights like we do.

Governments have to do their part also – first of all, bad laws, such as the Computer Crimes Act, are being used against people, and it’s the responsibility of governments to ensure that these laws are not in place and used to undermine human rights defenders working in business and human rights. Also, as I said many times, there’s no law in Europe at the moment for instance that would allow consumer watchdogs to know where products are coming from unless companies volunteer such information and open themselves voluntarily to scrutiny, there is no cross and check system, little transparency. I asked Cecilia Malmstrom about what the European Commission was doing for this issue to be more transparent, and there were few answers back in October when the European Parliament expressed concern at my conviction in its resolution and supported our work.

"Governments have to do their part also - it’s the responsibility of governments to ensure that laws, such as Computer Crimes Act, are not in place... Also, there’s no law in Europe at the moment for instance that would allow consumer watchdogs to know where products are coming from unless companies volunteer such information."

Some governments and intergovernmental agencies have also played a positive role in my battles and provided support and encouragement. The Office of the High Commissioner for Human Rights (OHCHR) had a lot of communications with the Thai government. It’s also good that OHCHR is also talking about the issue of corporations’ support for HRDs more broadly. Finnish government was also very strong, as was the European Parliament and Cecilia Malmström. The resolution on my case was signed by 700-800 MEPs – elected representatives of the people that thought it was important to take this up. As Cecilia Malmström powerfully said: European consumers don’t accept this kind of abuse, they want products that are clean. She put the Thai government on notice, demanding products that are free from abuse, and made in conditions where HRDs can work. Observers from the EU were very present at my trials. Actually, I don’t want to take negatively about who perhaps didn’t support as much as I felt would have been useful, and I know each organisation or actor has limitations too. The ILO and my own government in the United Kingdom played their part, but I think could have done more actually. The State Department in the USA cited my judicial harassment yearly in its Annual Trafficking in Persons Report, but I didn’t feel a connection or deep support despite this like I did with other actors. ETI and BSCI issued statements that was appreciated as an initial act of support that I hoped would go further.  

BHRRC: Was there any reaction from the Thai government that showed they are hearing this or seeing the reaction by the European Union and the companies?

Andy: Not on the surface, but now in the chicken case, we’ll see. I had to leave Thailand and the statement (link) is clear about why I left. I hope the Thai Government, industry and related stakeholders hear what I am saying, and that in the chicken case this will show: I hope for a more mature approach, we have seen it from the supply chain, but not from Betagro, the chicken farm, or the Thai government so far.

"We have seen some radical and positive developments in Thai law in some areas - but those that defend human rights are not seeing the benefits of that, they are still prosecuted."

We have seen some radical and positive developments in Thai law in some areas, developing the definition of forced labour in greater compliance with international law, more regulation of migrant workers and an attempt to asset the rule of law into a systematically corrupt and abusive migration system developed over several decades. But at the same time, those that defend human rights are not seeing the benefits of that, they are still prosecuted. I went to Government House days before I left Thailand to meet the Prime Minister's advisor on human trafficking and migration, he made promises, but never followed through. Maybe the Thai Government see my behaviour as culturally insensitive, perhaps it comes across as too aggressive and damaging to face and profit. But at the end of the day, if you can take the 'Andy Hall' out of all of this, and indeed that should always be the case, as this is about principles, networks of support and not about me, then maybe it can help bring about reconciliation. I have though for several months now what I can offer to allow more reconciliation to come about than in the past, which weaknesses in my approach I could acknowledge as part of negotiations. I am open to this, as reconciliation, peace and harmony are important for activists to have a health long term vision too.

BHRRC: About repressive use of laws in Thailand:  One of the good things that came out of this terrible situation that started in 2013 is that you put a spotlight on the Computer Crimes Act and strict defamation laws that are being used to silence activists. Beyond just engaging on individual cases, do you think companies have enough leverage to help influence the government to repeal these laws through concerted effort?

Andy: That’s a very important issue, I’m focusing on migrant workers, but the repression of activists is much broader: Thai workers can’t collectively bargain and the Computer Crimes Act and defamation laws shouldn’t exist at all.  Their use is rampant in Thai society and the new Computer Crimes Act, the one that’s been passed before the Thai parliament now, is even more stringent.

"What is important is to increasingly take these so called pure human rights issues outside of the discussion on human rights and take it into trade, profit, money."

What is important is to increasingly take these so called pure human rights issues outside of the discussion on human rights and take it into trade, profit, money. What the European Trade Commissioner’s statement on my case showed is that this judicial harassment against a HRD was about Freedom of Expression yes, but that it was also more importantly related to trade – that’s it’s about money, face, reputation, the inability to express oneself, to bargain, to fight for increased labour conditions. It’s about sustainability within supply chains, long term sustainability, and not just about the human rights framework, which is seen quite differently in the East and West.

I’m still alive, despite the pressure I feel under, and I’m here still campaigning, taking much needed energy and inspiration from the latest campaign by 2, 500 migrant workers from Myanmar, organised by MWRN, to seek to negotiate increased welfare conditions with Unicord, a major tuna exporter in Thailand. And my case is just a tip of a large ice-berg, I’m a white educated male, and because of my profile I have the ability to liaise with UN agencies, diplomats and media agencies, I could ensure companies took action, came out publicly to support the case and the principles it stands for. I don’t think still the Thai government wants me in prison because of trade implications, and I am sure they don’t want me dead or disappeared either. Out of the country maybe the desire of some.

"I’m a white educated male, and because of my profile I have the ability to liaise with UN agencies, diplomats and media agencies, I could ensure companies took action... I am sure the Thai government don't want me dead or disappeared. But we see people being killed, disappeared, communities destroyed every day by companies and corrupt government officials."

But we see people being killed, disappeared, communities destroyed every day by companies, corrupt government officials. Migrant workers trafficked, sold, abused. And people can’t speak up like I do. We have to look urgently at people and communities that can’t do like myself and MWRN have done, we need to educate and support HRDs and communities and activists and workers to know their rights and understand and develop channels to protect themselves more using supply chain opportunities or international human rights frameworks. And indeed, it is the responsibility of companies to look into this issue, alongside civil society and governments. The most important thing to learn from my case is to mainstream lessons from my approach, MWRN's work with companies, to behaviour of other companies whose impact can be much greater even than Nordic companies, who market share wise are the smaller actors.

BHRRC: The trade angle is a very good angle that’s rarely considered. The instinctive approach is to ask companies to use their voice in specific cases, but linking civic space issues with trade agreements could be even better. Do you think the US and the US companies could use their leverage in this regard?

Andy: Personally I think American companies prefer to work through American people – American NGOs, consultants, USAID. That willingness to really look into the problems directly and engage with grassroots human rights defenders is not there, which is disappointing. Whenever I tried to engage with US companies, even UK companies to some extent, they didn’t respond. The Nordic approach is positive, we also see it with to some extent with Ethical Trading Initiative and the Business Social Compliance Initiative, but the Nordic approach is the most active and progressive.

BHRRC: Generally speaking, can external auditing systems be improved to account for the closing of the civic space? Can HRDs be seen as a part of the monitoring system for international brands?

Andy: Too often companies are outsourcing their CSR to consultants, but also relying perhaps too much on audits. Audits are important, but they need to be more sensitive to the challenges of actually really getting worker voices and not just from within four walls of factories where workers can rarely, in the real challenging world, honestly speak out. Auditors need to visit worker accommodation to get real stories, triangulate findings with NGO or CSO comments, do proper living wage calculations. This can also support the work of HRD by holding companies accountable and provide important line of remedy for workers, thus easing the load of HRDs.

BHRRC: Your organization, Migrant Worker Rights Network (MWRN), recently supported seven migrant workers from Myanmar in submitting a request to the government’s labour protection and welfare office and to Unicord PCL, a leading tuna processor, on behalf of more than 2,000 migrant workers, which is a rare demand in a country that bars foreigners from forming trade unions. What kind of response would you like to see from those directly named, especially in relation to Freedom of Association? What should companies do to support unionization without working through company-run unions?

Andy:The case is a high profile one - we expect European retailers to support this initiative. If we look at BSCI and ISO 8000 – there was this push in past years to for companies to 'encourage' or 'promote' collective bargaining, but now the standards only talk about “respect” – that’s weaker as a standard, because many workers are unable to organize. Companies have to genuinely promote workers’ unionizing, particularly major supply chain actors with power, but that doesn’t mean forming a company union – unions have to come from workers, workers must understand what a union is, what are the benefits, and desire to form a union if it is to be genuine social dialogue in its purest form. But companies need to support independent trade unionists and human rights defenders or civil society groups where they can. To be able to support them in acting independently, companies need to understand risks and dangers they are facing: these at risk actors need to have their capacity raised, they need more information about supply chains in their own languages, they have to know where the product they are producing is going and what channels can be used to make complaints if their organising efforts are undermined. That information needs to be available and provided by companies. In US, there’s Import Genius, but that’s not freely available or accessible information. In EU, Canada, Australia, UK – there’s not even anything like that.

"The Unicord PCL case in which seven migrant workers submitted a request for labour protection on behalf of more than 2000 migrant workers is a high profile one - we expect European retailers to support this initiative."

Its useful to cite the MWRN Thai Union Group model of promoting the welfare committee system in Thai Union plants. Leaders in the Thai labour movement support MWRN's work here, as Thai Union is seeking to promote social dialogue in its workplaces through the fully elected welfare committee model, bringing MWRN in to raise capacity, seeking more channels for worker complaints. Its not a union model, as its not the duty of Thai Union to form trade unions in its own workplaces, that indeed the leader of the Thai labour movement agreed. But its a step forward to promote social dialogue between companies, the labour movement and MWRN as a civil society or migrant worker actor. Some Global Union Federations have criticised this welfare committee approach as undermining the potential for unions to be formed, but at MWRN we disagree with this approach. Thai Union are seeking to promote social dialogue, and that’s a positive thing. If GUFs or other actors want to ensure Thai Union workforce is unionised, MWRN is ready to work with them too. But what does the workforce want. That’s a crucial question. A welfare committee model is better than nothing, and it’s a positive experience in social dialogue for worker leaders.

BHRRC: At BHRRC, we are working on supply chain transparency through the KnowTheChain project. The food industry is especially opaque. There is a strong possibility of backlash on those that expose abuses in supply chains – do you agree with idea that brands should always take strong action when there is backlash against whistle-blowers and unionists in their supply chains?

Andy: Brands and buyers need to remedy the situation – what does that mean? First of all, they need to stop things from getting worse. We have seen this happen: we had major Thai and international buyers still pull out immediately from Betagro despite own demands otherwise, we have seen for instance Carrefour pull out from seafood industry. Nestle talks about its positive response, but many challenges remain there too in genuine remedies. Companies have to think before pulling out because when they do, it has real impact on workers and on activists. Workers lose, activists lose faith and support from worker leaders. Companies especially should not be pulling out to save face. I get calls from risks analysts, investors, asking me to provide information to them, but now I don’t share it if they come into the conversation only from the “risk analysis approach”, because that doesn’t help the workers. I ask what MWRN and workers can get from cooperating from these analysts and consultants, and then usually the communication ends, they don’t respond. This career minded individuals want free information, almost like milking benefit from already exploited individuals, with little to give in return. Workers need to be kept employed, safe, both the government and the whole supply chain need to figure out how much money this will take and both need to answer how much they are willing to pay to be part of a remedy to abuse or exploitation. Together we need to find solutions.

"Brands and buyers need to remedy the situation – what does that mean? First of all, they need to stop things from getting worse. Companies have to think before pulling out because when they do, it has real impact on workers and on activists. Companies especially should not be pulling out to save face...Together we need to find solutions."

What we hear from Thai companies is that often buyers are loud in words, but not in actions: they pronounce support for workers and those defending their rights, support increasing CSR and UNGP compliance, but at the same time, they want short term contracts, the size of their orders fluctuates a lot, insecurity results, competition means costs need to be low, so it often happens that the CSR department is saying or pushing for right actions, but buyers are reducing the price. So there is a mismatch within companies: they need to ensure it’s not just about what they are saying, it should be consistent with their operations and pricing, because that’s where abuses are coming from - against workers and consequently human rights defenders. I want to explore this issue more in the future with companies to understand better the dynamics of the situation.

This needs to translate into paying more for products, if need be, and ensuring remedies are effective. Workers very rarely see benefits of these actions. If consumers pay more, of buyers make less profit, it doesn’t necessarily mean suppliers will pass benefits to workers either. Its complex and this required cooperation. Right now, we have companies paying attention and an array of UN agencies rushing into the Thai seafood industry, but slave-worker victims still don’t see any change on grassroots level and tens of thousands of abused fishing boat workers have seen almost no compensation. MWRN supported Thai Union's call at the Trust Women conference in London for the setting up a fishers fund to support such abused workers as a means to ensure compliance with the remedy element of the UNGPs. But Thai Union found no one willing to support their idea and this initiative, this is disappointing. 

What’s next in the cases you’re working on and how do you hope for things to evolve?
Natural Fruit lost face because of my case. Some in Thailand may see that as disrespectful of Thai culture, but I hope that it will lead to a change in company behaviour, that in the future, companies, both suppliers and buyers, will get involved and start cooperating earlier on when abuses come to light. Publicity is always the last resort, people may not think that HRDs like me think like this, but we do. Its almost the final act of desperation when we don’t have the ability to make other channels work. The chicken case is an important test case. I hope we get even more companies to act like the Nordic ones did so far, and for all companies to do more: words need to translate into perhaps paying more for products, ensuring remedies are genuinely effective, workers need to see benefits. Companies need to be held accountable and I’ll always be making demands on them, alongside organisations like Finnwatch, Swedwatch and MWRN.

A positive exception is the zero recruitment service fee campaign: MWRN have been working directly with Thai Union on a project but also lobbying BSCI and the Nordic companies to eliminate recruitment fees for migrant workers [in “Cheap has a high price”, interviewed workers disclosed workers usually have to pay high recruitment fees on starting their work (1,500–4,000 baht, about 40–100 euros)]. We are seeing positive effect for workers, it’s changing their lives. The Thai Union model is shaking recruitment markets in South East Asia as a new beginning, and it’s been an honour to be part of this work, so much leg work we all needed to do in MWRN and Thai Union to make this happen, against all odds and with a lot of risk both to MWRN and Thai Union given the systematic corruption surrounding recruitment and irregular migration. But in terms of freedom of association, freedom of expression, collective bargaining and enhanced social dialogue, there is still a long way to go.

"What would be helpful right now would be for more businesses, apart from the Nordic ones, to highlight the chicken case, to recognize it as test case, and to support us in putting pressure on all actors to bring around reconciliation, prevent another Natural Fruit style witch hunt against HRDs and civil society."

What would be helpful right now would be for more businesses, apart from the Nordic ones, to highlight the chicken case, to recognize it as test case, and to support us in putting pressure on all actors to bring around reconciliation, prevent another Natural Fruit style witch hunt against HRDs and civil society. It would be helpful for them to also express more targeted support in the Natural Fruit case to find the way to bring about even more light from this dark cloud [on the 8th of February 2017, Andy’s Legal team appealed his conviction in that case to Bangkok South Criminal Court]. Maybe reconciliation is still possible, maybe with government and company support, this judicial harassment can for once come to an end and we can all move forward together.