Is Fashion’s Support of Freedom of Association ‘Just for Show’?

Natalie Swan, labor rights program manager at the Business & Human Rights Resource Centre (BHRRC), summed up the advocacy group’s latest report with a single question.

“Are they going to support real freedom of association where workers can collectivize, get better wages and get safer workplaces, or are they going to invest in structures that are weak or bogus and amount to fake freedom of association?”

“They” refers to international fashion brands, which Swan says talk a good game when it comes to promoting freedom of association and collective bargaining but often fall short on delivery. As the name of the report suggests, their promises of stakeholder engagement are “just for show,” she said.

If anything, apparel and footwear purveyors have adopted an “engagement-lite” approach exemplified by the use of so-called alternative representation structures—such as workers’ committees, non-independent “yellow” unions and even worker voice apps that add to the confusion of options—that have been co-opted by factory management for the betterment of their interests, rather than the benefit of their employees, the BHRRC said. This comes at a time when wealth and power in the supply chain have never been more unbalanced, with workers who were already living on the knife-edge of subsistence paying the price for the geopolitical instability that has roiled production and stoked inflation.

Speaking to trade union leaders and other workers’ rights advocates in Bangladesh, Cambodia, India, Indonesia, Pakistan and Sri Lanka, the organization found that a “status quo” of rampant union busting, coupled with the elevation of alternative representation structures to “tick the freedom of association box,” continues to embolden a business model that relies on razor-thin margins and poverty wages to function.

“It changes the power imbalance when you collectivize workers in relation to employers,” Swan said. “So the main thrust of the report is looking at how trade unions are persistently weakened, specifically in relation to the use of alternative representation and communication structures along supply chains.”

The importance of worker voice

Freedom of association is a critical enabling right, experts say. Without an environment for workers to safely communicate human rights risks, workplace empowerment cannot exist. Worker organizing and collective bargaining agreements, in fact, offer the “best guarantee” that issues such as forced labor will not occur—or, as the case may be, recur, according to Jennifer Gordon, professor of law at Fordham Law School. But seeing freedom of association as a remedy requires a change in perspective, she said, one that looks upon workers as individuals with agency rather than victims in need of rescuing.

A 2023 study by the U.S. Department of Labor and Pennsylvania State University’s Center for Global Workers’ Rights also argued that the ability of workers to collectively organize, express their demands and attain better workplace terms and conditions is a “founding principle” of labor relations regimes and international labor standards. “Trade unions and collective bargaining most clearly fit this definition of voice,” it said.

But Kate Jelly, labor rights researcher at the BHRRC, said that international brands and employers have so far been unwilling to have those conversations with workers’ representatives that have been given the mandate to call for better terms and conditions. In many cases, worker committees are established by management in response to employees beginning to organize. Workers may even be incentivized to join the structure approved by management, making it difficult for independent unions to build up their collective power. This is a form of union busting in itself, she said.

Such committees can be used to essentially rubber stamp factory decisions, such as an employee committee in Sri Lanka that agreed to unfavorable terms for overtime pay. Several interviewees from Cambodia cited the use of the shop steward by employers to sign off on decisions on dismissals, pay, bonuses and compensation for factory closures that an independent union would have pushed back against.

“So we see structures like committees being used as a substitute for unions [and] to say to workers, ‘You don’t need a union, we have a committee,’ and to say to brands and auditors that there is participation of workers at the factory level,” Jelly said. “And yet committees don’t have the bargaining remit of trade unions and so they’re overreaching if they are being used in that role. But more commonly, they’re just a show and shortchanging workers who are then denied any avenues for collective bargaining.”

The numbers bear this out: In a survey that the organization conducted with workers’ rights groups, 82 percent of respondents agreed or strongly agreed with the statement that “employers prefer to engage and bargain with other bodies, such as yellow unions and worker committees, instead of the independent trade union.”

Interviewees also spoke about the threats or bribes that factory managers have used to “neutralize” their efforts. In a factory in Cambodia, for instance, union representatives said they were offered salaries nearly three times the minimum garment-sector wage to stop organizing in their factory. Union members in Bangladesh reported retaliatory tactics such as harassment, intimidation, punitive workloads and even dismissal. And before one union in Sri Lanka was finally recognized following a monthslong strike and intervention from higher-ups, factory management would hire people to rough up their leaders, they said.

“Management uses union-busting techniques to keep union membership numbers low, thus trying to suggest to workers that committees are more effective than unions, and that unions are controlled by outsiders,” said Sebastian Deveraj, honorary president of the Karnataka Garment Workers Union, better known as KOOGU, in India.

Ensuring a just transition

Despite brands’ oft-stated commitment to freedom of association, very little in the public sphere reveals just how they are implementing it. A recent benchmark by KnowTheChain, an initiative of the BHRRC, Humanity United, Verite and Morningstar Sustainalytics, found that less than one-quarter (22 percent) of fashion’s 65 biggest publicly listed firms disclosed engaging with local or global unions to boost freedom of association in their supply chains. Only 12 percent divulged even partial information on the percentage of their supply chains covered by collective bargaining agreements, of which just one—Zara owner Inditex—provided a breakdown by region and two—H&M Group and Lululemon—furnished aggregate data for their Tier 1 suppliers. A mere 5 percent—namely, Asos, Primark and The North Face owner VF Corp.— described how they involved stakeholders such as workers, unions and civil society organizations in their human rights assessments.

But brands that want to “truly implement” their policy commitments need to make it a condition of trade that independent unions are allowed to freely organize and that structures like worker committees are used only within their legal remit, Jelly said. Brands should also be proactively engaging with independent unions as they undertake the meaningful stakeholder engagement required under legislation such as the European Union’s corporate sustainability due diligence directive—something that will increasingly come into play over the next few years. And if they’re defaulting to national law as a justification for a “softer approach” to freedom of association, they need to ask themselves why they’re sourcing from countries that lack protections for collective bargaining. Is it because it’s cheaper?

“Something that came through strongly in the research is the draining impact that this complicated landscape of mostly fake representatives has on the independent unions,” Jelly said. “They have to spend valuable time fighting for legitimacy, fighting union busting, and therefore have less time. focused on actually representing workers’ needs at the factory level. And—really important—no time to engage with brands and suppliers on a macro level to bring about the kind of transformations in the industry that are desperately needed.”

For Jelly, there can be no “just” transformation of the industry without building up worker representation and union power. While trade union structures are not perfect, they remain the “best route that workers have to kind of build their collective power and to ensure decent working conditions,” she added.

There’s a business case for multinational firms to champion freedom of association in their supply chain, Swan argued, and not least because she thinks that companies need a social as well as economic license to operate.

“If you have workers that are able to speak freely and collectively, they can tell their boss when a factory, a machine or a building does not look safe and know that they’re not going to be persecuted or lose their job,” she said. “They can say, ‘Look, we’re unable to do this work in these conditions, and we need to build a sustainable workforce,’ so when orders come in, a company can adapt and fulfill that order. Workers are more likely to be productive when they’re paid well, they’re healthy and they can afford to eat, and where they are safe and respected.”

This is the unquantifiable aspect of freedom of association, which is the “bricks and mortar of worker well-being,” Swan said.

“That’s what builds a thriving workplace, a happy workplace,” she said. “It allows employers to plan for the future because they don’t have workers that are sick, are struggling to be productive. And they’re not leaving all the time, and that’s great for business. And I think we need to shift to an expectation that a thriving workforce is key to your business case, to your interest as a business, and I don’t think we’re quite there yet.”