Report of the February 2013 Human Rights Delegation to Gurgaon, India

Response to Retaliatory Terminations of Workers
at Gap and NEXT Supplier Modelama Exports

February 27, 2013

 I. Preliminary Findings and Call for In Depth Inquiry and Investigation 

The Modelama Exports garment factory in Gurgaon India employs over 1,200 garment workers and is a supplier to brands NEXT and Gap Inc. among other multinational brands.

Workers report that conditions in the factory include:
- wages below a living wage
- forced overtime
- dangerously hot workplace with no safe drinking water provided
- exposure to dangerous chemicals and particles in the air
- use of contract labor beyond what is allowed by Indian law
- use of corporal punishment including by male managers against women
- verbal harassment and pressure by management against workers perceived to be affiliated with the union
- extreme retaliation against workers who try to improve conditions including:

• retaliatory terminations
• retaliatory transfers
• physical threats
• attempted bribes of workers and their families
• verbal harassment and abuse
• surveillance

Workers report that out of a necessity of improving conditions, they have organized a union and are attempting to negotiate with Modelama Exports management. They report they are doing this despite escalating retaliation by Modelama Exports management. 

Workers report that Modelama Exports has fired 14 workers active with Modelama Workers Union and ordered the transfer of another 3 workers to a distant worksite. Workers also report additional physical assaults and threats from Modelama Exports management. In response to the retaliation, affected workers began a vigil outside the gate of the Modelama Exports factory in the weeks leading up to their hearing at the Labor Commission on February 28, 2013.

Workers report extreme retaliation for this vigil including:

• surveillance of workers and their families
• attempted bribery of workers and their families
• intimidation of workers and their families including visiting the spouse of a worker at their home and at his worksite
• manipulation of the India court system to obtain an order blocking workers' rights to peacefully gather and protest without giving them notice to appear

Workers are asking that Modelama Exports reinstate the workers who have been fired or transferred in an allegedly retaliatory way, recognize the Modelama workers union, and engage in good faith bargaining with the workers and their union.

Based on its preliminary investigation, the United Workers Congress suggests a deeper, independent investigation into the following serious violations of human rights under Indian law and human rights law including:

• Right to freedom of association
• Right to life and wages necessary to live
• Right to just and fair conditions of work
• Right to safe and healthy working environment
• Freedom from forced labor

Modelama Exports management reports they are in dialogue with the workers and have offered safe transport to the workers who have been transferred. Modelama denied that the terminations and transfers had a retaliatory intent.

NEXT also reported that it was "fully aware of the issue and understand the gravity of the situation" and required all NEXT Suppliers "to manufacture product in accordance with the published NEXT Code of Practice" including respect for the lawful freedom of association and right of employees to join a Trade Union of their choice."

Workers reported that Modelama Exports has continued to escalate its retaliatory practices even after they reported the human rights violations to NEXT and Gap.

Given the credible reports from workers of the continued retaliation against worker leaders and the refusal of Modelama or the brands up to this point to retract the retaliatory acts, this Delegation has grave concerns about the good faith of any current negotiations. To protect the human right of freedom of association, workers must be able to engage in dialogue with management without fear of retaliation, and workers report continued feelings of coercion based on past and present acts of management. The Delegation therefore recommends immediate retraction of all retaliatory actions against workers and their union including terminations and transfers and ensure that workers do not lose any seniority they have required. These preliminary findings also include additional recommendations for Modelama Exports, Gap and Next Brands, and the Indian government.

II. Methodology

Members of the delegation reached out to the following:

• Workers at Modelama Exports
• Union leaders from the Modelama Workers Union and other trade unions.
• Modelama Export management
• Gap and Next Brands

The Gurgaon site investigation and in person interviews were conducted on February 24, 2013.

III. Corporate Entities Related to Modelama Exports
The workers are employed at a site owned by Modelama Exports in Gurgaon, India.

Workers report that Modelama Exports garment manufacturing plant in Gurgaon sources global brands including Gap and NEXT. Workers report that they know this because some workers sew Gap and NEXT labels on clothing. Workers also report seeing Gap and NEXT representatives at the factory sites on a monthly basis. Workers report that Modelama knows when to expect visits from the Gap and NEXT and management directs workers how to respond and monitors
interactions between the brands and Modelama workers. Because of Modelama intervention and surveillance, workers report that NEXT and Gap inspections are likely not accurately reporting conditions at this site.

NEXT has confirmed that Modelama Exports sources NEXT garments from the Modelama Exports Gurgaon site.

IV. Areas of Concern and Potential Human Rights Violations

The Universal Declaration of Human Rights (UDHR) was established "as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their
jurisdiction."

The UDHR clearly establishes the right of everyone to "just and favourable conditions of work," to "rest and leisure, including reasonable limitation on working hours," and to "a standard of living adequate for the health and well-being of himself and his family."

Under Article 5 of International Covenant on Economic and Social Rights (ICERD), India is obligated to ensure the right to just and favorable conditions of work without discrimination, and to take affirmative measures to ensure both the elimination of discrimination not just under color of law, but in fact. Specifically ICERD requires signatories to "guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law,
notably in the enjoyment of ... (e)(i) The rights to work, the free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable emuneration."

Based on preliminary conversations and investigation, the human rights delegation recommends a deeper, independent human rights investigation focusing into the following areas.

As is discussed in greater detail below, the right to freedom of association, and the right to participate in collective action without threat of reprisal or other retaliatory action, is critical to making other workplace rights a reality that workers can both enjoy and defend. This undergirding role of the right to freedom of association and the right to participate in collective action, is recognized in the ILO Conventions, as well as in Article 22 of the International Covenant on Civil and Political Rights. As such, the right to freedom of association is a fundamental human right.

A. Potential Human Rights Violations at the Modelama Exports Plant

1. Lack of a living wage. Workers report that their salaries are not sufficient to support themselves, and their families.

2. Underpayments of wages. Workers report that their hours are not counted correctly and that they are not always paid for overtime work performed.

3. Migrant and Contract Worker Rights. Workers report that their status as migrant workers disadvantages them. If they need to take days off to travel home, they are fired and then re-hired upon return—losing seniority and minimum benefits they have accrued. Some work without employment contracts and identification cards, making them 

virtually invisible to labour authorities. Where employment contracts are being issued, workers lack basic information about working conditions and employment terms, which allows employers to wrongly depreciate worker's skills level classification, denying their due wages. Workers report that hours missed at work due to sickness and employers resulting in punitive measures disproportionately recover late arrival.

4. Forced Overtime occurs when an employer forces a worker to work beyond 8 hours a day, in violation of Indian law. Workers report being regularly subjected to forced overtime.

Anannya Bhattacharjee, President of the Garment Allied Workers Union, reports that forced overtime is common in the garment industry in Gurgaon and across India because extremely high production targets demanded by manufacturers mainly caused by increasingly tight 'lead time' demands by brands are the main causes for excessive working hours. She explains that where workers have no option but to comply with overtime demands, the practice can evolve into an element of forced labour. 

5. Right to Health and Safety. Workers report working in conditions of extreme heat without proper ventilation or adequate, safe drinking water. Workers also report workplace injuries that have resulted in death. 

By virtue of international labor standards, all workers have the right to work in an
environment reasonably free from predictable or serious accidents and injuries to their health. The UDHR calls for "just and favourable conditions of work." ICERD calls on India to "guarantee the right of everyone, without distinction to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of ...the rights...to just and favourable conditions of work... the right to public health, medical care, social security, and social services." These human rights standards declare that every worker, regardless of citizenship, has the right to work in an environment reasonably free from predictable, preventable, serious risk, and to leave her workplace at the end of every day with life and limb intact.

6. Right to Freedom of Association. The human rights delegation found the most serious evidence relating to potential violations occurring against the right to freedom of association- a fundamental right that protects all other rights.

Workers report extreme retaliation in response to their organizing and attempts to
improve workplace conditions at the factory including:

• retaliatory termination
• retaliatory transfer
• physical threats
• attempted bribes of workers and their families
• verbal harassment and abuse
• surveillance

In response to the retaliation, affected workers began a vigil outside the gate of the factory in the weeks leading up to their hearing at the Labor Commission on February 28, 2013.

 Workers report extreme retaliation for this vigil including:

• surveillance of workers and their families
• attempted bribery of workers and their families
• intimidation of workers and their families including visiting the spouse of a worker at their home and at his worksite
• manipulation of the India court system to obtain an order blocking workers' rights to peacefully gather and protest without giving them notice to appear.

International law hold workers' freedom of association to be the foundation upon which all other democratic rights and freedoms in the workplace rest. The Universal Declaration of Human Rights declares that, "Everyone has the right to freedom of peaceful assembly and association...and the right to form and to join trade unions for the protection of his interest." Similarly, the International Covenant on Civil and Political Rights provides that "Everyone shall
have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

The ILO's convention on freedom of association elaborates, guaranteeing workers "the right to establish and to join organizations of their own choosing without previous authorization" and requiring governments "to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize." The ILO declares that "orkers shall enjoy adequate protection against acts of anti-union discrimination in respect of their
employment."

Ashim Roy, General Secretary of the New Trade Union Initiative-a national independent trade union federation- reports that India's labour relations are characterized by confrontation and lack of trust. He explains that employers often use retaliation, intimidation, and threats to maintain an artificial sense of industrial peace rooted in human and labor rights violations even though under Indian law such practices have been clearly defined as illegal, unfair labor practices act Industrial Dispute Act of 1947. He also reported that in addition to extreme retaliation against workers, unions face barriers to recognition, registration, and collective bargaining. 

7. Right to Be Free from Threats and Retaliation, Right to Freely Choose Work, and to Protection from Trafficking and Other Forms of Forced or Coerced Labor

In the context of this preliminary report, we would like to stress that migrant workers in general and particularly those on the supply chain of multi-national brands face the danger of forced labor as a real and constant presence. The same components that create a danger that forced labor practices will emerge in certain settings also create a danger that workers will be intimidated into silence during an investigation into those very practices. Fear is a powerful motivator. For this
reason we urge that objective, independent investigations take into account best practices for investigations in highly coercive workplace environments.

As described in the discussion of freedom of association above, reports received by the delegation indicate that workers were subjected to active and escalating intimidation when they showed signs of organizing to improve workplace conditions.

Workers also report experiencing this as a pattern of the systematic humiliation of workers and the denial of any dignity. To the workers, punishment and humiliation come with the job, and sometimes take on gendered forms.

In these circumstances it is urgent that future independent investigators take adequate preventive measures to guard against reprisal and against intimidation of workers through threats of reprisal.

International human rights law clearly prohibits forced labour.10 Continued vigilance to discern new forms of workplace coercion that emerge with changes in society and in the world economy, and that contribute to or facilitate conditions of forced labor is critical.

Without more in depth assessments of workers' circumstances including but not limited to debt levels, employment and recruiter relationships, and experience with retaliation—it is not possible to reach conclusions about the extent to which individual workers have or have not been subject to compulsory labor within the meaning of relevant standards beyond forced overtime.

Workers also reported to the delegation that they were routinely scolded and insulted, often in abusive manner. They reported verbal harassment from management toward workers who arrive even a few minutes late to work, those who cannot complete the target assigned, those who take a day of leave, or those who raise questions. 

B. Potential Violations of Indian Law

 While the delegation did not fully explore violations of the laws of India, the delegation highlights these protections, among others, under Indian law for further investigation:

• Indian Constitution, Article 21, Fundamental Right to Life
• Indian Constitution Article 19 (1) C, Fundamental Right of forming Association and Unions
• Indian Constitution Article 43 (in Annexure), Fair Labour Practices (under the Directive Principles)
• The Industrial Disputes Act, 1947
• Contract Labour (Regulation and Abolition) Act, 1970

At the same time the workers and trade union officials reported a lack of confidence in the implementation of these laws by the Indian government and courts. They pointed to the recent preliminary junction order issued by the Court of CJ/ SD Gurgaon which limits the workers rights to organize in front of the Modelama factory gate and which was entered solely based on representations by Modelama Management before workers or their union were given the opportunity to respond and defend their rights.

V. Conclusion and Recommendations
The goal of this report is to provide, early in the investigation process, a preliminary human rights analysis to guide the short-term and long-term response to the events in Modelama Exports by Modelama management, the Brands, and the Indian Government.

The courageous and creative action by the Modelama workers has provided a critical opportunity for close examination of human rights violations that workers and trade union officials report are pervasive throughout suppliers on the international supply chain of multinational brands including Gap and Next. Without the workers' brave actions, these conditions would not have been exposed—the corporate responsibility programs of the brands had not resolved these
fundamental workplace issues.

The workers' reports implicate a number of potential human rights violations, including discrimination, forced labor, substandard conditions of work, wage theft, and infringement on associational rights and merit immediate attention and action.

Recommendations on Response to Labor Dispute at Modelama Exports:
A. First tier recommendation:
1. Immediate retraction of all retaliatory actions against workers and their union including terminations and transfers and ensure that workers do not lose any seniority they have required.

This recommendation is critical as an initial showing of good faith. Workers and union officials reiterated that Modelama's actions are regular industry practice and that brands, including Gap and NEXT, must be accountable for this extreme retaliation, which represses enforcement of all other human rights.

As recognized by ILO Conventions, as well as in Article 22 of the International Covenant on Civil and Political Rights, the right to freedom of association, collective bargaining, and the right to participate in collective action without threat of reprisal or other retaliatory action, are critical to making other workplace rights a reality that workers can both enjoy and defend.

B. Second tier recommendations:

1. Recommendations for Modelama, Gap, and NEXT

1. Disavow retaliation against workers in a written statement posted in the workplace.
2. Recognize and engage in good faith bargaining with the Modelama Workers' Union.
3. Cooperate fully with an external, independent human rights investigation conducted by an entity agreed on by both management and workers using best practices that protect workers from further retaliation.
4. Hire all workers in the factory as permanent workers and end the use of contract labor in the factory.
5. For Gap and NEXT, if retaliation is not rescinded immediately, label Modelama as an "unfair labour practice" supplier that violates core international standards.
6. For Gap and NEXT, limit impossibly high production targets and low cost contracts which drive many of these alleged violations. Admit that wage increases are not in opposition to profitability and competitiveness.
7. For Gap and NEXT, commit to a binding written contract with workers and the union guaranteeing basic workplace rights.
8. For Gap and NEXT, release information making your supply chain transparent to allow community and worker monitoring of labor conditions.

2. Recommendations for the Indian Government:

1. Ensure an in depth and independent investigation of these serious allegations from workers;
2. Protect workers from further retaliation.
3. Consult with employers and worker organizations to fix wages at a living wage level in conformity with Convention No. 26 of the ILO.

VI. Background on United Workers Congress
The Human Rights Delegation that authored this report staff of networks of the United Workers Congress. Each member of the delegation participated in the above-described fact investigation in Gurgaon, India.

The United Workers Congress is a strategic alliance of workers that are either by law or by practice excluded from the right to organize in the United States. We are national networks that represent a base of workers, and also regional networks and individual organizations in industries where there is no national network.

Networks participating in the Human Rights Delegation include:
Jobs with Justice
National Day Labor Organizing Network
National Domestic Worker Alliance
National Guestworker Alliance
Restaurant Opportunities Center United

For more information contact Kimi Lee, Coordinator, This email address is being protected from spambots. You need JavaScript enabled to view it. or see
www.excludedworker.org

1 The Indian textile industry is worth about $55 billion USD at current prices, and 64% of this industry serves domestic demand. See Note on Indian Textiles and Clothing Exports by the Textile Ministry (August 28, 2012). available at http://texmin.nic.in/sector/note_on_indian_textile_and_clothing_exports_intl_trade_section.pdf

The textile industry accounts for 14% of industrial production, which is 4% of GDP; it employs  35 million people and accounts for nearly 12% share of the country's total exports basket.  2 See, UDHR, supra n. 17, Preamble. 3 UDHR, supra n.17, Arts. 23(1), 23(3)(providing, "Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worth of human dignityand supplemented, if necessary, by other means of social protection."

3 UDHR, supra n.17, Arts. 23(1), 23(3)(providing, "Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worth of human dignityand supplemented, if necessary, by other means of social protection."

4 UDHR, supra n. 17, Art. 24.

5 UDHR, supra n. 17, Art. 25(1).

6 ICERD, Art. 5(e)(i) and (iv), supra n. 17.

7 UDHR, supra note 17, art. 20 (1). See also ICERD, supra note 23, art. 5(ii); International Covenant on Economic, Social and Cultural Rights, art. 8, entered into force Jan. 3, 1976,
http://www2.ohchr.org/english/law/cescr.htm.

8 ICCPR, supra n. 23, art. 22.

9 80International Labor Organization's Convention concerning Freedom of Association and Protection of the Right to Organise, entered in to force April 7, 1950, full text available at
http://www.ilo.org/ilolex/cgi-lex/convde.pl?C087http://www.ilo.org/ilolex/cgilex/convde.pl?C087, accessed on August 23, 2011. See also, International Labor Organization's Convention concerning Freedom of Association and Protection of the Right to Organise, entered in to force April 7, 1950, http://www.ilo.org/ilolex/cgi-lex/convde.pl?C087

10 ICCPR, Art. 23(1) (Everyone has the right to...free choice of employment."); ICCPR Art. 8(3)(a) ("No one shall be required to perform forced or compulsory labor."); ICERD, Art 5
("States parties undertake to prohibit and to...guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notable in the
enjoyment of... (e)(i) free choice of employment."); ILO Declaration on Fundamental Principles and Rights at Work (establishing as one of the four fundamental principles to which all ILO
Members are bound, "The elimination of all forms of forced or compulsory labor.").