A new report by IOM, entitled ‘Accelerating Access to Remedy: Promising Practices to Enhance Access to Remedy for Migrant Workers in South-East Asia’, explores migrant workers’ access to remedy in Hong Kong, China, Malaysia, the Philippines, Thailand, and Vietnam. The report looks at remedy in line with the UNGPs. It covers both state/administrative and non-state/administrative grievance mechanisms, and is based on consultation with various stakeholders including migrant workers based in the agriculture, automotive manufacturing, construction, cosmetics manufacturing, domestic work, electronics, fishery, furniture, garment, glove and palm oil industries, and in the informal economy.

The report notes that migrant workers are vulnerable to labour rights infringements, yet are often unable to access remedy due to a number of reasons, including fear of retaliation, discrimination, a lack of information about rights with slow legal processes, labour law gaps, high costs of legal support.

The report suggests the development of mandatory due diligence laws and trade-based import bans may help support migrant workers access to remedy. The rising importance of ESG investment decisions alongside more rigorous sustainability disclosure legislation may also encourage companies to address human rights issues.

The report notes that the link between business and activity and human rights abuse has not been fully comprehended in the region. It suggests ‘very few’ non-state grievance mechanisms exist in Asia, and those that do often are ineffective. Companies in industries subject to sanctions or other buyer-induced pressure may have greater experience in providing remedy, but generally the report argues that there is a lack of systematic adoption of grievance mechanisms in the region due to their voluntary nature.

The report does note some examples of promising practices, such as the fact that companies in the Philippines are advised to report on their grievance mechanisms in guidelines by the Philippines Securities and Exchange Commission. The report presents various case-studies outlining promising practices, following consultation with the relevant stakeholders.

The report suggests migrant workers face challenges accessing remedy through state-based grievance mechanisms due to the power differential between the claimant and defendant. Issues include:

• An inability to access state grievance mechanisms after dismissal as migrants’ right to remain in the country is tied to their employment.
• Understaffing and underfunding of agencies enforcing state grievance mechanisms.
• Time pressure to take up new employment abroad meaning the workers cannot wait for a resolution.
• Fear of reprisals deter migrants from access state grievance mechanisms.
• Heightened difficulties in cross-border cases, as migrant workers struggle to bring legal action against an employer in a different jurisdiction. A lack of adequate bilateral labour agreements exacerbates these challenges. The report does note that civil society organisations may be particularly helpful here. such as through migrant worker resource centres.

Obstacles accessing non-state based grievance mechanisms echo those of state-based mechanisms, with added pressures such as the fact that such mechanisms are often insufficiently independent of the company, and thus migrant workers do not trust them. Further, migrant workers are largely excluded from the design and operation of such mechanisms, and the report notes that businesses are often also reluctant to consult NGOs on the issue.

The report makes several recommendations, including on the implementation of the UNGPs, on ensuring multi-accountability, and on facilitating engagement and dialogue.