Abstract
In 2014, New Zealand enacted the Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act in response to ongoing labour abuses on board South Korean vessels in New Zealand’s foreign charter vessel sector. Importantly, the legislation expresses the universality of the International Labour Organization’s Decent Work Agenda: all member countries must pursue policies based on the strategic objectives of equality, dignity, safe working conditions and that workers are protected from exploitation. The Act was in response to the identification of widespread labour abuses in this sector. In June 2011, the extent of the abuses came to light when 32 Indonesian crewmen of the Oyang 75 walked off their vessel. In this paper, we explore how a range of stakeholders worked organically to bring about change. We do this qualitatively by combining semi-structured interview (with over 160 Indonesian migrant crewmen between 2011 and 2017), observation and document analysis. We analyse our data through the lens of participatory action research which provides a framework to document the processes of who was involved, the cycles of change, what was achieved in each cycle, and importantly the platform for change. Specifically, we look at how stakeholders – the crew themselves, their advocates, academics, non-governmental organisations, journalists, activists, among others – all played a part in achieving legislated protections.
Keywords
Introduction
In 2014, New Zealand enacted the Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act in response to the identification of ongoing labour abuses in the foreign charter vessel (FCV) sector of New Zealand’s deepwater fishing industry. The legislation expresses the universality of the International Labour Organization’s (ILO) Decent Work Agenda: all member countries must pursue policies based on the strategic objectives of equality, dignity, safe working conditions, and protecting workers from exploitation (ILO, n.d.). One of the priority areas of the ILO’s decent work programme is the eradication of forced labour practices.
The identification of labour abuses on FCVs was not new; indeed, there were debates in parliament in the 1990s about ‘slave ships’ (Kelly, 1996). However, as claims of abusive treatment continued to surface, successive governments sought to implement protection mechanisms for crew, for example, through the amendment of the Fisheries Act (1996) and the introduction of a voluntary Code of Practice on Foreign Fishing Crew (2006) and new immigration policies. Instead, what emerged was non-compliance with these policies and ‘jurisdictional confusion’ (Dawson, 2014: 12; see also Dawson and Hunt, 2011; Stringer et al., 2016) and continual abuses.
In the early hours of 20 June 2011, the crew from the South Korean factory trawler Oyang 75 left their vessel. A few days earlier, as the vessel was approaching Lyttleton harbour, a crew member had been severely hit several times in the face by an officer. Seger 1 had lost his balance going downstairs in rough seas and accidentally brushed against the officer’s groin. For the crew, the beating was the turning point following months of physical, verbal, emotional and financial abuse. The crew described themselves as working in conditions of slavery or forced labour. The ILO Forced Labour Convention 1930 (No. 29, art. 2(1)) defines forced labour as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntary’. The definition encompasses all types of work, whether legal or not, and includes situations where an employee’s ‘free and informed consent is negated by deception or coercion of the employer or recruiter’ (ILO, 2013: 63). As we discuss in the paper, many of the abuses the Oyang 75 crew experienced align with the ILO’s indicators of forced labour, for example, physical and sexual violence, abusive conditions, the withholding of wages and the non-payment of wages.
The crew’s action in leaving their vessel triggered a process of unprecedented changes in New Zealand’s deepwater fishing industry, leading to the introduction of decent work conditions. The imperative came from the Oyang 75 crew, who, out of necessity, challenged the status quo of conditions akin to forced labour. The crew audaciously, and with the help of other stakeholders, worked towards improving conditions, and by doing so, brought about significant changes in legislation. Notwithstanding, in 2007, the New Zealand government had promoted itself as ‘a leader in promoting decent work for its workforce and the Asia Pacific region’ (ILO, 2007b).
The paper proceeds as follows. We first discuss our research framework using participatory action research (PAR) (Baum et al., 2006), stakeholder analysis (SA) (Freeman, 1984; Gosling and Edwards, 2003) and progressive contextualisation (PC) (Vayda, 1983) to understand the workplace changes that occurred in New Zealand’s deepwater fishing industry. The PAR framework enables systematic iterative sequences of documentation by employing reflection, planning, action, and observation. We find PAR effective because it enables the active participation of the crews in creating change, together with other stakeholders. SA is helpful in delineating the diverse role of multiple stakeholders, each playing a unique role in the key events involved in creating change. The PC framework guides us in understanding that an event that happens at a particular time and in a particular space is influenced not only by direct causes, but also by the underlying socio-economic and political context of the social actors. After describing our research methods, we discuss the three cycles of change, highlighting the actions and outcomes of key stakeholders, which ultimately led to the introduction of decent work conditions. In the discussion section, we offer some reflections on the ILO before drawing conclusions about using action research to address forced labour practices in the New Zealand fishing industry.
Research framework
Action research aims to effect change through practical knowledge generated by the research process (MacDonald, 2012). In this paper, we focus on PAR because the co-creation of changes that occurred in the New Zealand deepwater fishing industry was a bottom-up process, with the crews (research participants) actively involved in the iterative process of action research.
PAR is a method of social inquiry based on iterations of reflection, planning, data collection (monitoring) and action (Baum et al., 2006). PAR draws from critical theory and the transformational approach to research (Kemmis, 2007; Kemmis and McTaggart, 2007). As such, PAR focuses on initiating change in society to the benefit of the marginalised and disenfranchised (Creswell, 2009). Consequently, power relationships and issues of justice in social interactions are instrumental in PAR. In particular, PAR challenges the reductionism of positivist-oriented research, which, in search of objective knowledge, tends to desensitise the researcher to the political realities of power relations within society; it also neglects the everyday experience of suffering, especially of marginalised members of society (Burgess, 2006). Using PAR, researchers can empower participants to identify and analyse problems, and take action based on the research to solve the participants’ problems and those of society (Walter, 1998), thereby empowering them as agents with the ability to effect a change in their own circumstances.
PAR highlights the active participation of research participants (Indonesian crew on board South Korean vessels) and the authors (and other stakeholders) during stages of reflection, planning and action in each cycle, and in shaping the desired actions. As the forced labour conditions that needed addressing were complex, SA was a helpful tool to highlight how the diverse stakeholders collaborated organically, bringing their respective strengths to facilitate change. It defines who the stakeholders are, the role(s) that each occupies, the interests they have in the issue at hand, their proposed interventions along with the power each has in influencing the decisions for desired changes, and the process(es) to achieve them (Gosling and Edwards, 2003).
As the cycles of change took place in different jurisdictions (Indonesia and New Zealand), PC facilitates the examination of the actions, events, and policies, and their influences on the forced labour practices across geographic and temporal scales. While the framework focuses on a specific activity by specific people in a specific place, as Vayda (1983) argues, it frees researchers to avoid a priori boundaries so they can follow causes and effects wherever they lead. Using this method, the researchers begin with a single event to explore where it leads in understanding people and their actions in relationship to each other. This method tracks and assesses: (1) what the actor(s) do(es) in a certain location and time; and (2) the series of consequences (intended or unintended) that result from the actions of actors and/or networks. Furthermore, PC encourages the assessment of diversity by examining how different individuals and groups operate in, and adapt to, their overall environments through a variety of behaviours, organisations, structures, and beliefs. Moreover, the attention given to the context of action and consequences may often mean that the researcher must deal with latent factors, processes and interactions, as well as the movements of people, resources and ideas across whatever boundaries that societies and cultures are thought to have. This approach will lead to concrete findings regarding who is doing what, why they are doing it, and with what effects.
To understand the forced labour practices that had been occurring in New Zealand’s deepwater fishing industry, we combined the PAR, SA and PC frameworks. While these frameworks have been applied in a range of fields, they have not been applied to forced labour in the fishing industry. Together, these three analytical tools are instrumental in demonstrating more holistically the co-creation of changes in the fishing industry.
A participatory process and collaboration with a wide range of stakeholders gave a voice to migrant fishery workers. According to Freeman (1984), a stakeholder is defined as any group or individual who can affect or is affected by the achievement of an objective. Stakeholders are categorised as those who affect decisions and those who are affected by decisions (Brown et al., 2016). Further, Carroll and Buchholtz (2008) differentiate a stakeholder based on three types of stakes in an activity: first, someone with an interest that is affected by a decision (e.g. crews and their employment; FCVs and their businesses); second, someone with a legal right to be treated in a certain way or to have a particular right protected (e.g. the right to decent work for the crews; the right to profitable business for the FCVs); and third, someone with an ownership stake who has a legal claim to an asset or property. Based on Gosling and Edwards (2003), we categorise stakeholders as primary, secondary and external. The primary stakeholders were the crewmen who were supported by secondary stakeholders, including government agencies as well as international organisations and governments. The vessel owners and the Indonesian recruitment agents were considered external stakeholders because the actions of the crews affected them, as did the resulting policy changes. SA emphasises the value of working collaboratively, each stakeholder playing a unique role in the key events that forced policy change towards decent work conditions.
Research methods
To offer a rich and nuanced picture of the activities of actors, we outline the role of each of the authors, as secondary stakeholders. The first author’s initial involvement with Indonesian crews was of a practical nature. When the Oyang 75 crew left their vessel, she was President of the Canterbury Indonesia Society (CIS – a key secondary stakeholder). Through her fluency in both English and Indonesian, and her shared cultural background and language (Javanese) with the crews, she interpreted for investigations conducted by New Zealand government agencies (Ministry of Primary Industries (MPI), Maritime New Zealand (MNZ), Immigration New Zealand (INZ), and Ministry of Business, Innovation and Employment (MBIE)).
The second author had undertaken research on behalf of the Ministry of Fisheries (now MPI) into offshore processing practices. During this research, she and her colleagues identified a business model based on alleged forced labour practices in the FCV sector, and subsequently began researching labour and human rights abuses in this sector. She reached out to the first author to understand more fully the exploitation of Indonesian crews in New Zealand. In 2017, both authors conducted research in Indonesia to understand the role of recruitment agents in the exploitation of those working in the New Zealand fishing industry (see Stringer et al., 2021; Stringer and Kartikasari, 2017).
The third author is the producer of the television documentary The Great New Zealand Fishing Scandal (2009) about the effects FCVs were having on local commercial fishermen. In 2011, a New Zealand television channel commissioned him to update this documentary, and while doing so, the Oyang 75 crew walked off their vessel. He stayed in the same hostel as the crew, and, together with the first author, interviewed the crew for his new documentary The Price of Fish (2012). The second author was interviewed for this documentary. He subsequently produced a third documentary Slaves of the Oceans (2018), about the treatment of migrant crew.
In this qualitative study, we used a combination of semi-structured interviews, observation and document analysis. The authors, together and independently, interviewed 160 Indonesian migrant crewmen between 2011 and 2017 in New Zealand and Indonesia. Further, we interviewed four key secondary stakeholders to gain more insights into the issues of social justice, recruitment and compliance. Participant observations occurred during the time the Oyang 75 crew remained in New Zealand (2011) as well as during visits to crewmen’s homes in Indonesia. We amassed and reviewed an array of documents, including employment contracts (Indonesian, New Zealand and South Korean), legal documents and transcripts of litigations against FCVs companies.
Cycles of change
We present three cycles–each cycle of action involved observation, reflection, planning and action taken towards achieving decent work conditions (see Figure 1). In each cycle, the crewmen participated in the identification of problems with the authors who were documenting the abuses, reflecting on what was occurring through an academic lens and discussing desired outcomes. Our level of engagement varied from one cycle to another, depending on the action taken in each cycle.
Action research framework (adapted from Piggot-Irvine, 2009: 14).
The upwards movement towards achieving the desired goals in a cycle is often facilitated by an event that acts as a ‘spin-off’ to the next cycle (Piggot-Irvine, 2009: 19). Spin-offs are events that, while not having an immediate impact on the crews’ goals, are pivotal in ensuring the desired goals are achieved in the next cycle(s). The non-linear iterative process for this study took 7 years, beginning with the Oyang 75 crew walking off their vessel. This triggered the subsequent changes and two main spin-offs leading to another two cycles.
The main actions and outcomes of each cycle are shown in Figure 1. Table 1 provides an overview of the stakeholders, methods and outcomes involved in each cycle. Table 2 provides a summary of stakeholder analysis based on stakeholders’ interests and influence regarding facilitating change in each cycle. The analysis highlights the stakeholders and their diverse roles – each one playing a unique role in the key events that occurred – and the value of working collaboratively in driving government policy changes as well as addressing the crews’ practical needs.
Cycles of change.
Stakeholders: their level of power and interest in the co-creation of policy change in New Zealand’s fisheries industry.
Cycle 1: unprecedented action
The first cycle involved the identification of forced labour practices on board the Oyang 75. The unprecedented action the crew undertook by leaving their vessel was a response to interrelated employment, financial, physical and emotional abuse.
In dealing with this employment crisis, the Oyang 75 crew sought help from an Indonesian advocate, of whom they had heard of through other crews. She and two other key advocates sought to provide a safe environment, and accommodation was acquired in a backpacker’s hostel where the crew began to share in detail the various abuses they had endured for 5 months at sea with academic researchers, the documentary filmmaker and the media. The initial assistance from the three crew advocates – which came at immense personal cost to them – laid the foundation for building trust between the crew and others who sought to help them.
Forced labour practices
On board the Oyang 75 trawler, the crew were required to work excessive hours under extreme conditions. Viktor recalled, ‘After working 20 hours, we were only allowed 3 hours sleep before working again. We were really exhausted’. The bosun ‘would walk around watching us to check who was sleepy. He would poke his fingers into our eyes when he found us sleepy’ (Yanto). Ahmad recounted, When we have a large catch, it was very common that we worked two days non-stop, sleeping only four hours. Sometimes when we were about to go to bed, they would haul in a new full net and we would have to go back to work.
While the actual hours the crew worked averaged 18 hours per day, the officers recorded only 6–8 hours on the timesheets. Since these timesheets were written in Korean, most of the crew did not understand what they signed. The hours the crew were forced to work were extended by high-grading practices, wherein, to obtain higher profits, only the quality species were kept, while the lower-quality or non-quota species were dumped overboard (see Cycle 2).
Almost all the Oyang 75 crew were subjected to physical abuse by their Korean officers. Seger underlined that ‘Physical abuse was not only frequent, it was our daily menu. Whenever there is a problem, they use their hands to speak. This happens many times – it is horrendous’.
Wahid added: They hit us very easily. It happened right from when I first started working on the boat. It was only day one when I saw this violence; every day we were hit. We all suffered under the Korean officers’ treatment, which just got worse. So, although we have a two-year contract, we can stand the work no longer.
Frequently, crew were hit when they made a mistake or were slow because of fatigue: There was a new guy who the officer thought didn’t pack the fish properly and was hit hard with a piece of wood, so hard that the wood broke. I remember another beating that happened to my friend who was hit so hard with the officer’s fist, he fell on the floor and there was bleeding from his eye (Wiryo).
The physical abuse created an oppressive environment of fear and anxiety. Tanto recounted: A crewman was told off for smoking. Hearing this, I said that we had just finished working in the freezer room and we were smoking to warm up. The officer got mad and kicked and beat him up the, smashing his head repeatedly on the door. He fell to the floor pleading for forgiveness, but the officer just started stomping him again and again. A similar thing happened to another crewman being beaten like that – he got very traumatized. Every time the officer came near him, he would avoid any contact, and even when he heard his voice, he would get very scared.
Some of the crew were sexually harassed on the Oyang 75 vessel: The sexual harassment I experienced often when I was working in the winch room. The Bosun fondled my genitals and when I tried to stop him, he was angry and hit my head from behind (Parno). When I was having a shower the Korean entered the shower, caressed my body and kissed me. I ran out of the shower to my cabin and locked it to stop him following me. But he followed me to the cabin and kicked the door and shouted repeatedly (Tanto). I was eating when an officer approached my table. Suddenly he pulled his pants down in front of me and rubbed his hardened penis over my body. He grabbed my hand to touch him. I felt sick when I saw his erection and could not eat anymore (Said).
Many crew members felt that because the Korean officers were in charge, they had complete power over them. They were fearful of losing their jobs if they complained. Some had tried to report the abusive treatment to their captain, but to no avail. The officers either dismissed their complaints or were told to stay quiet if they wanted to keep their jobs. Consequently, most victims remained silent because there was no channel for them to safely report the abuse and they were in fear of the consequences. Yoyo explained: ‘Working on a Korean boat we can’t complain, even when we don’t complain we get hit. Just imagine if we complained, they would probably beat us to death’.
Key stakeholders
The first author, on behalf of CIS, organised meetings to raise awareness in the wider community of the plight of the Oyang 75 crew, and then later, of Indonesian crews from other FCVs. The interim results of the research by the academic researchers (Stringer et al., 2011) were shared at these meetings, which played a key role in the emerging cycles of change and helped lay the foundation for the New Zealand government’s response in announcing a ministerial inquiry in July 2011. This was a key spin-off.
Although the large accommodation costs were being charged to the credit card of one of the advocates with the expectation of later reimbursement, the crew, who were now unemployed, faced mounting financial pressure from home. School fees for their children were due, and if the fees were not paid, their children could not continue at school. In addition, pressure to resolve the dispute started to mount from family members who had lent them money to secure their job. Christchurch locals donated food, clothes and money to help the crew; one donor alone gifted $10,000 to pay school fees and help cover accommodation costs. A member of the clergy from Anglican Life who attended the meetings, went on to play a key role in helping not just the Oyang 75 crew but those from other vessels.
In response to media coverage about the Oyang 75 crew, Southern Storm Fishing (2007) Ltd, the New Zealand company chartering the vessel, reported in the media that there had been no reason for the crew to jump ship (Lynch, 2011). A spokesman for Sajo Oyang Corporation went further, stating the claims of abuse were ‘ludicrous and bizarre’ (Field, 2011). Southern Storm Fishing rejected claims of employee mistreatment and unpaid wages, instead alleging the crew’s claims were provoked by an anti-foreign worker campaign by competitors in the fishing industry (Lynch, 2011).
Following the Oyang 75 crew’s walk-off, three recruitment agents travelled from Indonesia to Christchurch to negotiate with the crew on behalf of the Sajo Oyang Corporation. The Indonesian ambassador also travelled to Christchurch. While discussing work conditions, he asked those who had not been hit to raise their hands. No one did. When asked how often they were hit, they replied every day, at least once a day, often three times. The ambassador’s subsequent meeting with executives from the Sajo Oyang Corporation and Indonesian recruitment agents was unsuccessful in resolving the conflict.
The crew refused to return to their vessel or leave New Zealand until they had been paid their outstanding wages. During this period of negotiation, the crew became aware of their entitlement to New Zealand’s minimum wage plus an additional hourly allowance. 2 Instead of being paid $NZ15 ($US12) an hour, they were paid per the terms of their Indonesian contract – which ranged from $US230 to $US500 per month – based on their experience. While wage negotiations were underway, some of the recruitment agents in Indonesia contacted families to (mis)inform them that their husbands and sons were in violation of New Zealand law, resulting in several being contacted by their families in fear. Tanto recalled, ‘My wife has just told me that my agent has sent an SMS telling her to tell me to go back to work and not get involved with this demonstration’. A year later, one of the wives who was interviewed for the documentary, recalled, ‘I was very scared. I was afraid the agent would send people to force me to sign something’.
Cycle 2: co-creation of policy changes
As a result of engagement with stakeholders in the first cycle, the organic collaboration between the primary and secondary stakeholders led to positive outcomes for the Oyang 75 crew. (By this stage, a loose alliance of concerned locals had formed that benefitted the crews at many levels.) Further, the actions of the Oyang 75 crew led Indonesian crews on four other factory trawlers in New Zealand, including sister ship Oyang 77, to take similar action, citing the non-payment of wages, and labour and human rights abuses.
We next discuss each action and the associated policy outcome.
First, because the Oyang 75 crew had left their vessel, they were in violation of the conditions of their working visa. The threat of deportation was issued initially by Southern Storm Fishing, followed by the crew’s recruitment agents, and subsequently officially by INZ, whose initial response was to accept the word of the charter party. The crew were fearful they would be deported, in particular because there was a clause in their contract that stated they would be penalised up to US$10,000 if they did not complete the full two-year term of the contract. Abu explained, My contract is for two years. It says that within this period, if we have problems on the boat with any of the officers, we will lose our job, be sent home and have to pay a penalty. The recruitment agents in Indonesia will also hold on to our collaterals
3
until the penalty has been paid fully.
This was the most important cause of their fear of being deported – potential lifetime debt bondage.
Understanding the crew’s abovementioned precarious situation, the Anglican Life office provided legal and moral support to the crew. Anglican Life petitioned for the right of crew representatives to remain in New Zealand to negotiate for unpaid wages, that they be granted a working visa, and that INZ address the contractual penalty clause in the contracts. Six crew members (two from each recruitment agent) were granted work permits (with the expectation that they would support themselves) so that negotiations regarding unpaid wages could continue with their employer as well as government agencies.
The remaining 26 crew members returned home on 26 August 2011, 2 months after they had left their vessel. Some of the crew, fearing retaliation from the recruitment agents, were concerned the agents would be waiting for them at the airport in Jakarta. A collaboration between stakeholders and Indonesian non-governmental organisations (NGOs) – International Transport Federation and Serikat Buruh Migran Indonesia (SBMI) – ensured the safe transit of the crew through Jakarta. Moreover, INZ issued a letter to the recruitment agents instructing them not to impose any form of penalty and that the collateral be returned. The consequence to agents of non-compliance was that INZ had the power to refuse to issue working visas in the future. The letter proved its worth when the agents promptly returned collaterals to crew on receipt of the letter. 4
Second, in August 2011, the New Zealand government announced a Ministerial Inquiry into Foreign Charter Vessels. The six crew members remaining in Christchurch were among those interviewed by the inquiry panel. In February 2012, the panel released its findings. The government immediately began implementing the panel’s recommendations, and in May 2012 announced that all foreign fishing vessels must be reflagged as New Zealand vessels. The Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act 2014 came into effect on 1 May 2016, requiring all vessels to operate under the New Zealand flag, thereby abiding by New Zealand laws. The government implemented a further series of policy and regulatory changes to address the exploitation of migrant workers (see INZ/MBIE in Table 2). The ILO (2015) noted that the New Zealand’s government concern about international reputational damage to the country’s sustainably-produced seafood, was a key factor behind many of the changes implemented.
Third, MPI sought to gather evidence about high-grading and other illegal fishing practices. MPI investigators interviewed the remaining six Oyang 75 crew, as well as crew from other vessels (who were also granted the right to remain in New Zealand). These crewmen became witnesses for the Crown. This second spin-off provided strong support for actions in Cycle 3. While addressing illegal fishing practices was not the desired goal of the crews, the investigations and subsequent successful litigations were instrumental in opening the door to legal proceedings pertaining to unpaid wages.
Over this 6-month period, the crews provided vital evidence for the MPI, who expanded their investigation to other fishing companies regarding some FCVs’ illegal fishing activities. However, issues of the non-payment of wages and abuse were not officially dealt with by government agencies. Consequently, the crew signed up for private legal representation to negotiate claims of unpaid wages. The negotiations encountered strong resistance from the fishing companies, although one New Zealand company, when presented with wage claims, promptly settled with a substantial payout. This occurred after the crew, with community support mobilised by Anglican Life, protested at the company’s offices. A small number of lawyers acting on behalf of crew from several South Korean vessels, on a pro bono or contingency fee basis, filed wage claims in several New Zealand courts. Some of the cases were successful, others not. The successful cases were settled confidentially, but in general were calculated on industry standard working hours of 6 hours on, 6 hours off, as opposed to actual hours worked.
Domestic and international media frequently reported on the exploitation of migrant workers in the fishing industry. US-based journalist Benjamin Skinner’s (2012) article published in Bloomberg Businessweek, ‘The Cruellest Catch’, caught the attention of the US government and US buying firms. The response by some firms was swift – Walmart and Safeway ‘pledged swift investigation’ (Skinner, 2012: 76). The United States Ambassador-at-Large to Monitor and Combat Trafficking in Persons, Luis CdeBaca, at the launch of the Trafficking in Persons Report (2012), highlighted the actions taken by Tom Mazzetta, Chief Executive Officer of Mazzetta Company: When he read a report about forced labor in the fishing industry [in New Zealand], he wasn’t just shocked. He acted. He wrote two letters. The first was to the company he used, until that day, to source calamari. The second was an open letter to all of his customers telling them that his brand was his family, his family name, and he would not taint it or his customers with slavery in his supply chain. We’re inspired by his principled stand.
Elsewhere, three NGOs in South Korea–Advocates for Public Interest Law (APIL), Korean House for International Solidarity (KHIS) and the Centre for Good Corporations – lodged a complaint to the National Human Rights Commission of Korea (NHRCK), an independent government body, about the plight of migrant crew on board South Korean fishing vessels (see Stringer et al., 2016). The complaint was dismissed because of a lack of evidence and because the matter was outside NHRCK’s jurisdiction. The South Korean Government launched an investigation – the inquiry team found evidence of assault and fraudulent practices. However, the charges for physical assault and sexual abuse were dropped: ‘the Korean fishermen who regularly committed sexual molestation of the migrant fishermen on-board were not indicted’ (APIL and International Organization for Migration, 2017).
Cycle 3: expanding the scope of investigation: legal proceedings
For the crews who remained in New Zealand, the months of illegal fishing investigation and wage claims negotiations were challenging. With limited language and work skills, they were unable to engage in gainful employment. The casual manual work they obtained within the local Christchurch community was insufficient to support their families. A CIS family, along with a key secondary stakeholder, provided support for crew members’ basic needs and accommodation, but they struggled financially and were anxious about the lengthy process of their wage claim negotiations. Some acknowledged the high uncertainty of a positive outcome. Nevertheless, they remained committed to supporting the MPI although the litigation did not directly benefit them. In fact, the crew felt that ‘the New Zealand Government is more interested in their fish than in us being beaten and underpaid’ (Ajun). However, the crew’s credibility as eyewitnesses provided leverage to subsequent successful litigations for illegal fishing practices.
The Sajo Oyang Corporation, in response to the lawsuits, in late August 2011 pressured Oyang 75 and Oyang 77 crew to accept a cash settlement to withdraw all representation pertaining to unpaid or the underpayment of wages. A Sajo Oyang representative, accompanied by an Indonesian military or police officer, visited each crew member with a bag of cash. The cash settlement was calculated at a minimum of 42 hours a week, as opposed to no less than the 84 hours usually worked. Those who accepted Sajo Oyang’s offer were required to sign a peace agreement and withdraw legal representation.
In February 2012, officers from the Oyang 75 were charged with illegal fishing practices under the New Zealand Fisheries Act 1996. This outcome acted as a spin-off’ that was instrumental in the subsequent court proceedings against the Sajo Oyang Corporation for a second vessel (Oyang 77) and two other companies (Dong Nam Corporation (Sur Este 707) and Taejin Fisheries (Melilla 201)). Ten officers from these four vessels were found guilty of illegal discarding, misreporting or under-reporting. The vessels and fishing gear were forfeited to the crown and the officers fined (Stringer and Harré, 2019; Stringer and Kartikasari, 2017).
Following the forfeiture of their vessels to the Crown, the Sajo Oyang Corporation paid a bond to the New Zealand government so they could continue to operate their vessels. In the interim, the company sought relief from forfeiture through the New Zealand courts. Karen Harding, a prominent traffic lawyer, who was described by another lawyer as coming ‘from a completely different world’ took on a ‘David and Goliath’ case against the Sajo Oyang Corporation and the MPI (cited in Dennett, 2018). Harding petitioned the courts that her clients (30 Indonesian crewmen 5 seeking an estimated $7 million in unpaid wages) under a maritime lien had the right to compensation from the forfeiture of the Oyang vessels 6 (Dennett, 2018). In March 2018, New Zealand’s Supreme Court ruled that the crewmen had the right to claim proceeds from the sale of vessels forfeited to the Crown by the Sajo Oyang Corporation. The case was settled for a confidential amount.
By the end of Cycle 3, the primary goal of the Oyang 75 crew’s actions had yielded a mixed result: no government organisation had dealt with the complaints about abuse. Further, those who accepted the peace agreement received lesser amounts of money compared with those whose legal representatives managed their wage claims. Notwithstanding, the six crew representatives were proud of helping the MPI to prosecute the Sajo Oyang Corporation for illegal fishing practices and felt that this was, according to Said, ‘our way of expressing our gratitude to so many New Zealanders who helped us in our desperation’.
Discussion
The ILO’s Decent Work Agenda is centred on the promotion of rights at work, employment, social protection, and social dialogue. Basic rights at work are articulated in the ILO’s core labour standards: freedom of association, freedom from discrimination, and freedom from forced labour. These core standards are the foundation to decent work, which ‘has a floor but no ceiling’ (Rodgers, 2003: 271). A key objective of decent work is the eradication of forced labour practices. Within the fishing industry case study, poor working conditions by themselves, for example, are not necessarily symptomatic of forced labour. However, combined with the physical and sexual violence, withholding of wages, excessive overtime, abusive working and living conditions, and intimidation and threats that the crews endured, they do meet the ILO’s definition of forced labour (ILO, 2012). The International Labour Conference adopted the Protocol of 2014 to the Forced Labour Convention 1930. The protocol sets out obligations for states to provide protection, including compensation, to victims of forced labour as well as sanction those engaging in forced labour. The protocol was introduced too late to benefit the Indonesian crews from the South Korean vessels.
While the reason behind the Oyang 75 crew walking off their vessel remains unaddressed, the actions of the crew as well as those from other vessels, did, bring about significant changes in New Zealand’s fishing industry. Through the changes put into effect, from December 2012 wages, as per the Minimum Wage Act 1983, were paid directly into crews’ New Zealand bank accounts, as opposed to being paid to their recruitment agents, thus eliminating the potential for recruitment agents to ‘clip the ticket’. As part of the reflagging process, two South Korean fishing companies set up subsidiaries in New Zealand, thereby allowing them to continue to operate in New Zealand. The vessels are still crewed by South Korean officers and migrant workers from elsewhere in Asia, predominately Indonesia. While future crew have benefitted from changes introduced by the Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act 2014, this does not mean that fraudulent practices have ceased. According to one crew advocate, some crewmen are required to complete their timesheets in pencil so the officers can change the hours.
The Oyang vessels no longer operate in New Zealand’s waters. In 2019, the Oyang 77 was identified as illegally fishing in Argentina’s exclusive economic zone (Oceana, 2019). Similarly, the Oyang 75 was identified as engaging in illegal fishing practices off the coast of South America. While crew from the Oyang 75 reported improved conditions, they still ‘worked twenty-hour days, six to seven days a week, earning roughly $400 per month’ (Urbina, 2019: 112). Indeed, seafarer unions and advocates, foreseeing that the South Korean fishing companies would move to other jurisdictions with less controls, questioned at the time whether the efforts by the New Zealand government were strong enough. The decent work tenets that are reflected in ILO policy and desired by a just society have loopholes globally, making ongoing work by multiple actors’ imperative. According to the ILO (2015), while there was ‘documented good practice yielding results in New Zealand’ it has not been ‘replicated elsewhere’ (p. xi).
One of the key recommendations from the ministerial inquiry was that the New Zealand government undertake an assessment as early as possible regarding ratifying the ILO Work in Fishing Convention, 2007 (Ministerial Inquiry into Foreign Charter Vessels, 2012). This recommendation was supported by the New Zealand Council of Trade Unions (2012) and by the coroner who undertook the inquiry into the drowning of three 7 Indonesian crew from the Oyang 70 (McElrea, 2012). Recognising the need for basic standards of decent work in the fishing industry globally, in 2007 the ILO adopted the Work in Fishing Convention, 2007 (No. 188). The nature of the fishing industry is such that conditions are often dangerous and difficult, which can lead to a ‘decent work deficit’ (ILO, 2007a: 2). The ILO sought to confront this deficit gap by requiring minimum requirements for work on board vessels, including accommodation and food, occupational safety, and conditions of service. Convention 188 covers the recruitment process, wages, and hours of rest. The Work in Fishing Convention, 2007, which came into force in November 2017, replaces several earlier ILO instruments. Despite passing with ‘overwhelming support’ (ILO, 2007b: 1), by early 2021, the convention had only been ratified by 18 countries; New Zealand was not one of these countries. Indeed, one of the criticisms of the effectiveness of the ILO is the low ratification rates of conventions (Dey, 2020).
This paper demonstrates how the combined application of PAR, SA and PC provided a robust framework to understand events over time, the actions taken by stakeholders (planned and unplanned) at multi-levels (individual, group, national and international), and the outcomes (desired and serendipitous) in terms of changes in policy and practice. The use of PAR was a result of reflection on an unprecedented event in 2011 that eventually led to a major government policy change in New Zealand’s deepwater fishing industry in 2014. While the research approach used in 2011 and 2017 was primarily a conventional exploratory investigation, as reported above, PAR was not intentionally our primary strategy. In using PAR to chart the journey of change, we employed PAR’s main participatory characteristics, with a focus on actions taken to achieve the shared goals of the diverse stakeholders for better employment practices. Two key strengths of PAR were the active involvement of research participants and the personal empowerment they gained throughout this process. However, we found the use of PAR had several limitations. First, because the FCV crews were temporary migrant workers in New Zealand, their participation in sustaining the improvements made to their working conditions ceased once they left the country. Second, although through the interactions between the stakeholders and crews empowered crew members in their understanding of their employment rights under New Zealand law, these benefits ceased once they left. In fact, many of them were blacklisted from future employment on South Korean factory trawlers (Stringer and Kartikasari, 2017). Consequently, the enforcement of the minimum wage entitlement guaranteeing a decent working wage are now only enjoyed by a small number of Indonesian crew members as the changes in workplace practices do not apply outside New Zealand, thus the benefits achieved through the participatory process have proved to be limited.
Conclusion
The combined use of PAR, SA and PC frameworks enabled a comprehensive examination of the processes and associated actions undertaken by a network of actors in addressing forced labour practices in New Zealand’s deepwater fishing industry. While the ILO has introduced recent initiatives to combat decent work deficits and contemporary forms of forced labour in the fishing industry globally, these initiatives came too late to benefit the Indonesian crews working in New Zealand’s FCV sector. Instead, what we have shown in the paper is how collaboration among stakeholders – which, on reflection, happened serendipitously and organically – illustrates how an industry governance problem can be solved faster with wider outreach. The crews, as primary stakeholders, could not free themselves from a forced labour situation without the help of secondary stakeholders. Everything was inter-linked yet separate. Each stakeholder became involved because of their conviction that forced labour practices were wrong and should be addressed in a collective way. The collaborative process provided many forms of support and protection to the Oyang 75 crew, which in turn encouraged crew from other vessels also to come forward. At the same time, the support from various stakeholders created a platform for further engagement with companies in terms of obtaining compensation, and addressing the underlying causes of forced labour in New Zealand’s FCV sector.
As for the crew members who engaged in industrial action, many still dream of the opportunity to work in New Zealand again. However, realistically, ‘it is a dream that will never come true’. Regardless, Yoyo had no regrets ‘because it benefited future generations’.
Footnotes
Acknowledgements
The authors would like to thank the two reviewers for their constructive feedback. We also thank the Special Issue editors for their guidance.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was funded in-part by a Faculty Development Research Fund (No. 3710491), University of Auckland Business School.
