Our values: High Performance, Respect for Each Other, Integrity, Honesty & Trust. Lonmin image campaign in Marikana and surroundings, recorded in Wonderkop, 2015.
The privatisation of governance in supply chains
The SA8000 certificate was awarded after a social audit conducted by a RINA subcontractor in Karachi. Moreover, the German retailer KiK commissioned three social audits between 2007 and 2011 to justify its purchases from the Pakistani factory. Despite the multiple audits and the SA8000 certificate, on the day of the fire the factory had an (illegal) wooden mezzanine, lacked a functioning fire alarm and did not have sufficient emergency exits. None of the factory audits identified these flaws. The incident thus tragically revealed the inadequacy of the current practice of private certification: independent and diligent audits seem rare and require, at best, a sort of ‘checklist compliance’.
Social audits have become ubiquitous as a tool to diagnose adherence to social and environmental standards in supply chains. They were popularised during the 1990s in the textile industry, which during the past decades outsourced some, if not all, of their garment and textile production to profit from lower wages elsewhere. Under pressure from consumer campaigns, retailers developed codes of conduct in terms of which they voluntarily committed themselves to certain minimum standards throughout their supply chains (van Tulder et al., 2009). Such efforts in the textile industry are premised on the assumption that in buyer-driven value chains, the retailing brands have considerable control over manufacturers (Gereffi and Memedovic, 2003:4). Retailers drafted codes of conduct to set standards for suppliers on child labour, forced labour, working hours and health and safety. Social audits emerged as a means to demonstrate conformity to the social standards adopted (Clean Clothes Campaign, 2005:12).
Already in 2005, the Clean Clothes Campaign published a book titled Looking for a Quick Fix: How Weak Social Auditing Is Keeping Workers in Sweatshops, in which many problems with social audits were identified, such as their superficial nature and the likelihood of deception. Academic research since then has similarly documented that, as a stand-alone measure not integrated in management structures and without a bona fide trade union, codes of conduct and audits are not likely to lead to significant improvements in working conditions (Locke et al., 2013; Locke et al., 2007; Anner, 2011).
The problems with audits have not only been recognised in the textile industry. Early 2017, the Sustainable Agriculture Network decided to dispense with certification in agriculture. They concluded that certification audits are mostly done as a ‘policing exercise’, thus failing to actually improve the situation at the level of the producer. They further warn that certificates may end up ‘misstating the actual reality on the ground’ due to an auditor’s lack of expertise or time: ‘after working with this tool for over 20 years, we could look back and conclude that certification was not the best approach to improve the sustainability of most farmers in the world’ (Freitas, 2017). Even the Association of Professional Social Compliance Auditors (APSCA) acknowledges that ‘currently, you could ask anyone to conduct a social audit and there is nothing stopping them, and no way to verify their qualifications’ (interview with executive director Rona Starr in Verisk Maplecroft, 2017:7).2
Despite these criticisms of social audits in the textile industry and elsewhere, this tool continues to be adopted by other industries. While consumer pressure was the driving force in the textile industry, the London Bullion Market Association (LBMA) developed the Responsible Gold Guidance, which they claim has ensured that ‘all 71 gold refiners have completed their independent third party audit with no instances of zero-tolerance non-compliance’ (LBMA, 2017). In 2011 the chemical companies BASF, Bayer, Evonik Industries, Henkel, Lanxess and Solvay founded the Together for Sustainability (TfS) initiative. Since then, a number of other companies have joined the initiative, including AkzoNobel, DSM, DuPont, Merck, Syngenta and Wacker (BASF, 2017a). The proclaimed goal of TfS is the global standardisation of supplier evaluations and auditing.
Just like retailers in the textile industry, the chemical company BASF has a Supplier Code of Conduct. If suppliers fail to fulfil these standards, BASF can terminate the business relationship, which it did with four suppliers in 2015 (BASF, 2017a). Audits thus play a role in the sourcing decisions of BASF and can also serve to justify continued sourcing. For example, in November 2015, BASF commissioned a third-party audit at its supplier mining company Lonmin in South Africa. On the basis of the audit report on Lonmin, BASF concluded: ‘While the audit noted room for improvement, primarily in the areas of environment and safety, there were no critical findings of Lonmin’s governance, human rights or labour practices nor any performance violations that prevented BASF’s continuation of its relationship with Lonmin’ (BASF, 2017b).
While the Lonmin audit thus reports ‘no critical findings’, for miners South Africa is still one of the most dangerous places in the world. In 2016 alone, 27 workers died in the platinum mines (Bergermann et al., 2017). This raises the question whether social auditing and certification schemes can frustrate more fundamental solutions addressing working conditions by giving the impression that something is being done. Some argue that audit schemes can be improved to accommodate criticism. For example, after the first audit at Lonmin, in 2017 a follow-up audit included 90 mining-specific questions which were not asked in the first audit. Still, in personal conversations with the author, labour organisers in the garment industry in Bangladesh and Pakistan voiced the opinion that private audits have inherent limits and that it is probably better if they were not conducted at all. As the deaths at the Ali Enterprises factory have shown, unduly flattering audit reports are a real concern. If a social audit report fails to signal instances of non-compliance with social and safety standards, lead firms may continue to source from suppliers, without implementing measures urgently needed to protect workers.
Based on the author’s experiences, this chapter looks primarily at the problems with social audits in the textile industry and assumes that key structural issues like conflicts of interest are likely to characterise social audits in other industries, such as the mining sector. It then proposes that as long as social audits continue to exist – whether in the textile industry or elsewhere – in order to avoid the risk of unduly flattering auditing reports, audits should always be accompanied by accountability and liability mechanisms.
The problem with social audits
A social audit of a garment factory is a workplace assessment conducted over just a few days by one auditor or an auditing team. During this process, the auditors should review documentation supplied by management to check whether, for example, wages and hours are in line with the applicable labour standards; physically inspect the factory floor to ensure the presence of requisite health and safety measures like functioning emergency exits, ventilation, cleanliness and safety equipment; and conduct interviews with management and some workers to discover whether payslips and so on are accurate in practice and whether, for example, union activity is suppressed (Clean Clothes Campaign, 2005:23). Diagnostic social audits are generally followed by corrective action plans, the implementation of which should also be inspected by social auditors in follow-up visits.
Taking stock, the results of 25 years of corporate social responsibility in the textile industry are not encouraging. The widespread practice of private audits reduces the pressure on producing country governments to establish a functioning system for labour inspections. Academic research has documented that as transnational corporations have become entrusted with governing themselves and reporting on their efforts to government and the public, there has been a persistent decline in the state-based monitoring of production processes in many countries (LeBaron and Lister, 2015). In addition, most audits fail to substantially involve workers in assessment and subsequent improvement efforts.
A major problem with the privatisation of inspection lies in the negative incentive structure for auditors, which can lead to flawed if not faked audit results. Conflicts of interest are inevitable as commercial auditing companies are interested in keeping their clients operating in an increasingly competitive market (Jahn et al., 2003:9). Contrary to most current models of social auditing, an independent auditor should not be paid either by the buyer or the supplier. The competitive auditing market creates incentives to hold down auditing standards, costs, and efforts. When suppliers wish to receive a quality certificate without undertaking the relevant investment, there is an economic incentive to seek out lenient auditors (Jahn et al., 2003:11). Announced visits pose the additional problem that factory owners can manipulate the appearance of working conditions. Unfortunately, fake documentation is not an exception either.
There is another cause for manipulated or poorly conducted audit reports: while international textile brands and retailers require their suppliers to obtain certification, they also exert price and time pressure on them, thereby pushing them to engage in practices leading to poor working conditions. Even if audits identify gaps in adherence to certain standards, they do not help in finding ways of implementing corrective action plans. The race to the bottom for the cheapest prices should thus be replaced by responsible purchasing policies, i.e. longer delivery deadlines and fair prices.3 Also, the costs of compliance with codes of conduct should not be exclusively externalised from lead firms to their suppliers. Audits should therefore not narrowly focus on the conditions in a given supplier, but include in their scope the purchasing practices of buyers that create the incentives for such conditions. Corrective action plans should include recommendations for the lead firms on how they can adapt their sourcing demands to enable the supplier to meet social and environmental standards.
Apart from deliberate falsifications, social audits frequently have methodological shortcomings that make it difficult for auditors to identify abusive conditions. Audits tend to be snapshot observations. Also, not all relevant aspects of working conditions are easy to measure, such as discrimination or freedom of association. Already in 2006, an industry representative was reported to have said that ‘what is easy to measure is being measured, but what’s hard to measure isn’t’ (Casey, 2006:3). Further, information on sexual harassment is frequently shared only after a long period of confidence-building, making it highly unlikely that auditors will reveal such problems, even if they are common.4
As a more fundamental critique of social audits, sociologists LeBaron and Lister argue that auditing produces standardised metrics, measurements and rankings, which create the appearance of independent supply chain monitoring; but the information produced through and derived from audits is partial, highly political and fundamentally shaped by the retail audit client. Public and governmental trust in the metrics generated by audits ends up concealing real problems in global supply chains. Furthermore, the choices made regarding the scope and design of audits tend to omit the portions of supply chains (beyond the first tier) where labour abuse is most likely to take place (LeBaron and Lister, 2015).5 In particular, this issue of the scope of the audit was raised by critics of the 2015 BASF-commissioned audit at Lonmin, who asked why it only focused on the situation at the mine, while publicly available NGO reports had highlighted the precarious living conditions around the mine (Bahadur et al., 2017:34).6
Accountability and liability: How to control the controllers
As long as audits are carried out, the question is how to effectively control their quality. In order to implement effective quality control and ensure accountability, firstly, the likelihood of detecting deficient audits has to be increased. Further, auditing companies must face penalties if they deliver a deficient audit. Changing the incentives for the audit industry could be simply and effectively achieved by increasing the chances of liability. Currently, auditing companies are generally not held accountable on the basis of their reports, neither by textile brands or factory owners, nor by workers, who supposedly benefit from auditing.
One barrier to effective oversight is that audit reports are not made public. Contrary to claims of ‘transparency’, audit reports are regarded as confidential and the property of the auditor’s client and therefore generally not made public. Therefore, workers or unions have no means of verifying the veracity of such reports. Audit transparency should go beyond publishing lists of suppliers, which has recently become more common. Access to audit reports is, however, a precondition for the identification of unduly flattering audit reports, oversight of audit quality, and accountability. Pleas for transparency are often countered with claims of a relationship of trust between supplier and buyer or because of trade secrets. At the same time, the publication of audit reports of garment factories by the Bangladesh Accord shows that it is possible to overcome these concerns.7 Presumably, such transparency is possible in other industries as well. Vattenfall, for example, in addition to publishing a list of its coal suppliers, made public a human rights risk assessment of its coal supply chain in Colombia (2017).
It is generally accepted that social audits are only snapshot observations and that real and continued monitoring can best be done by the workers on the shop floor themselves. A problem with workers’ involvement in social audits is that they are frequently threatened with dismissal, as well as the risk of losing orders for the factory as the result of lay-offs if they report abusive working conditions. This tends to influence worker interviews. A solution could be to implement special protections against such dismissals. A clause to that effect could be a standard part of the code of conduct, global framework agreements or multi-stakeholder initiatives. As workers may not be able to demand enforcement of such protection clauses, this can only have effect in combination with the other factors mentioned here. The involvement of trade unions is often made difficult by several practical issues, such as the absence of trade unions in garment factories and the severe repression faced by many unionists. This is particularly so in the textile industry in Bangladesh (Human Rights Watch, 2016). In other sectors, unions may be able to play a stronger role. At the same time, though, workers across industries prefer to keep their jobs and are all too easily put under pressure by the threat of a lead firm to terminate the business relationship. Just as in the textile industry, workers in other sectors have reported feeling inhibited from speaking freely with social auditors.
Grievance mechanisms in factories can play a role in revealing abusive working conditions and thus exert quality control over social audits. Discrepancies between unduly flattering audit reports and complaints filed through local grievance mechanisms can serve to reveal substandard audits. Grievance mechanisms are, however, not always used or even known to workers. What is more important, and often politically underestimated, is that the accompanying reduction of workers and trade unions to the status of mere ‘witnesses’ of working conditions undermines their role as a necessary party in collective bargaining.
So far, the mechanisms described to create accountability do not have any legal implications but are based on the voluntary commitment of lead firms, auditors and social compliance initiatives to create accountability. While these efforts may all be necessary, the question remains how to hold auditors to account if their negligent audits have severe consequences for the lives of workers. Here, legal liability comes into play. When lead firms request audits, they are – in their role as the client of auditing firms and suppliers – in a position to set the standards for quality audits. On the basis of the audit contract, the commissioning party is able to take steps against sloppy auditors.
Lead firms generally do not have an incentive to hold their auditors liable. This might change if and when they face legal claims for injuries due to abusive working conditions in their supply chain. A remarkable example here is the recent move by retailer KiK to hold auditing companies legally liable for findings in their report. A KiK spokesperson commented that ‘KiK is the first company in Germany and possibly in Europe with a contract in place with its auditing firms, which makes them legally liable for their findings on the ground for a period of three months following the audits. [...] For example, if an auditing company visits a factory and fails to spot the fire extinguisher has expired, and this is then discovered during a physical check in the factory, we can go back to the auditing firm and ask them to pay a penalty’ (Barrie, 2017). Referring to their own risk of liability, KiK representatives indicated that they ‘need to have a picture of the factory that properly reflects what we find there, because we are the ones facing the risk later on’ and thus want auditors to ‘make their job 150% accurate’ (Barrie, 2017).
In addition to the contract parties holding auditing companies accountable for poor reports, there is a role for governmental justice systems. If workers are exposed to life-threatening working conditions (such as the absence of adequate fire-safety measures), the granting of a CSR certificate to such a workplace might impede necessary improvements. If workers are subsequently injured, prosecutors should investigate whether a negligent audit report led to the certification of an unsafe factory.
Thus far, workers have very few possibilities to hold auditors to account for their reports. As workers are not parties to the auditing contract, they cannot file claims for not fulfilling the contract service adequately. A simple and direct legal remedy should be in place for workers, whom social audits are intended to benefit. This can easily be done, for example, in the contracts entered into by auditing companies with the client. Such contracts could contain a clause explicitly conferring third-party beneficiary rights on those workers whom the auditing cycle is intended to benefit. Nonperformance or a deficient audit would constitute a breach of the obligations of the auditing company under such a contract. A reversal of the burden of proof should facilitate such claims. If auditors fail to identify major non-compliances, negligence should be assumed unless they can prove that relevant professional standards were adhered to. It should be noted, though, that such a claim depends on workers filing cases. When workers do not even dare to speak up on smaller things, it is unrealistic to expect them to file such claims.
Outlook
Despite the critique of audits, human rights due diligence and disclosure laws are actually increasing the demand for social auditing (Verisk Maplecroft, 2017:7). The meagre or even counterproductive results of social audits in the textile industry should, however, be taken seriously in other sectors. Ultimately, certificates generate a high level of trust while incurring almost no legal risk. Despite notorious shortcomings, the continuing practice of social audits is too often understood as a means to monitor working conditions effectively. Buyers and suppliers in a supply chain can then claim to have met their corporate social responsibility by relying on audit reports. No incentives are given to undertake effective measures such as structural changes in purchasing practices. By declaring they are conducting audits and supervising corrective action plans, lead firms display their commitment, while at the same time avoiding any real change in their business model. On the contrary, companies often successfully portray their own actions as responsible, while identifying the supplier as the only problem. Lead firms frequently claim that there is not much that they can do and all too easily hide behind the argument that terminating a business relationship would not be responsible to the workers either. While true, this argument conceals many other aspects where lead firms have an influence on production practices, such as price, delivery deadlines and contributions to necessary investments.
Social audits are thus part of the problem rather than a solution, providing minor remedies while upholding a neoliberal framework and legitimising endemic features of global supply chains. It is a real problem that codes of conduct and the accompanying audits are extra-contractual tools, whereas agreements on price, volume, delivery date and product quality are contractually enforced. LeBaron, Lister and Dauvergne quote one of their interviewees: ‘There is no greater power than a purchase order. The power relation begins and ends with the buyer’s signature. All the rest that floats around it is talk. [...] Until your buyer says you care [about the environment and workers] in the purchase order, you don’t care’ (2017:108).
This concern was reflected in the criticism of the BASF-commissioned audits at Lonmin. The South African non-profit organisation Bench Marks Foundation and the German organisation Bread for the World took issue with BASF for not exerting contractual leverage over Lonmin. In its mining labour plan of 2006, Lonmin committed itself to building 5,500 houses. But in 2014, only three houses had been built (Rajak, 2016:943). The NGOs argued that despite this failure to comply with the required target, ‘long term contracts between BASF and Lonmin have recently been renewed’ and, according to these NGOs, ‘do not include any enforceable clauses on Lonmin’s SLP [social and labour plans] obligations’ (Bahadur et al., 2017:6). Such apparent lack of enforcement fits with the conclusion of the economist Forslund, who after analysis of Lonmin’s sustainability reports noted that as long as Lonmin keeps ‘display[ing] public awareness of its failures’ and ‘promises to correct failures in the coming years’, it can continue its mining operations. ‘No sanctions of any kind have ever been meted out against Lonmin’ (Forslund, 2013).
LeBaron, Lister and Dauvergne point out that attention to private audits is all too often focused on improving ‘operational quality’, while the social and environmental outcomes remain the same (2017:111). They conclude that the audit regime benefits corporations while ‘failing workers and the planet’. In her analysis of the South African mining industry, Rajak similarly realised that the real question is not ‘how CSR has helped workers, but how it has helped corporations to confront specific challenges’ (2016:930). She observed that the logic of corporate social responsibility enabled South African mining companies to portray workers’ health and housing as externalities instead of ‘core operational costs’ (2016:933). These scholars argue that audits make it all too easy for governments to ignore calls for stricter regulations and proper investments in adequate state inspections.
Despite the criticisms, for the moment social audits seem to be here to stay. As audits are increasingly adopted by companies to fulfil their human rights due diligence obligations, transparency and liability should be minimum conditions. Essential to any system that claims to ensure quality audits is a mechanism ensuring deficient audits are identified and penalised. This should involve independent workers’ organisations and workers. On this point, the Bench Marks Foundation and Bread for the World criticised BASF as ‘the audits commissioned in 2015 and 2016 are not public, methodology and results have not been communicated or consulted with NGOs, unions and communities’ (Bahadur et al., 2017:6). Without access to audit reports, trade unions, workers and communities cannot independently verify whether the auditors were able to observe all instances of non-compliance with the relevant standard.
Auditor liability can contribute to necessary changes in the power relationship between lead firms, suppliers, workers, trade unions, communities and auditors. However, this will only happen if auditor liability is not only a theoretical possibility on paper but is also demanded in practice. This demand should come from lead firms, governments, compliance initiatives and workers. Efforts towards enforcing accountability should raise questions about the misleading scope of audits, draw attention to unduly flattering audit reports and criticise the lack of implementation of audit recommendations – thus revealing the mechanisms that currently perpetuate the status quo in which audits are carried out but social and environmental outcomes fail to improve. A firm like BASF can lead the way on this path towards accountability by including a clause for third-party beneficiary rights in its next auditing contract.
1 Significant parts of this chapterwere previously published as C. Terwindt and M. Saage-Maaß, ‘Liability of social auditors in the textile industry’, ECCHR and FES Policy Paper, December 2016.
2 The Association of Professional Social Compliance Auditors now plans to create a certification programme for auditors.
3 Depending on the number of buyers and suppliers as well as the price mechanism in a particular value chain, the room for manoeuvre of lead firms may vary. While retailers are free to determine the price of fashionable clothing, the price of commodities like coffee and platinum is decided on the world market. Further, garment factories are not bound to specific places, allowing clothing companies to threaten going elsewhere, while mining companies are less likely to change their location. Owing to the specialised uses of platinum, the number of buyers is actually fairly small, just like the number of suppliers, thus creating a power dynamic unlike many others (see the interview with Gavin Capps).
4 An audit at Lonmin actually did note this particular problem, as it observed that sexual harassment of female employees at the company’s facilities, near Rustenburg in the North West province, was ‘common and pervasive’ (McKay, 2017).
5 The challenges with subcontracting are relevant beyond the textile industry. For example, Rajak observed that subcontracted mining workers in South Africa do not have the same (social) rights as other employees (2016:940).
6 The 2017 audit at Lonmin actually led to the recommendation that ‘Lonmin should take steps to better understand how the mining operation affects local communities and which measures can be derived from this’ (BASF 2017b).
7 The Accord on Fire and Building Safety in Bangladesh is a legally binding agreement between global brands and trade unions and mandates factory inspections by building engineers. The reports are published on the Accord website (Accord, 2017).
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Our values: High Performance, Respect for Each Other, Integrity, Honesty & Trust. Lonmin image campaign in Marikana and surroundings, recorded in Wonderkop, 2015.
BASF conducted a first audit at Lonmin at the end of 2015, and a key result was the commitment to support the expansion of the Lonmin plant fire department. This fire station building in Marikana West is probably connected to it. It was built in 2016 and has not been used since then.
We dig to build this company: Promotion booth of Lonmin on the occasion of the commemoration of the fourth anniversary of the massacre on 16 August 2016.
In connection with the panel discussion, ‘Supply chain responsibility: From airy voluntariness to binding rules’ in Berlin on 21 April 2016. Thorsten Pinkepank, head of BASF’s CSR department, once again defends the voluntary nature of supply chain responsibility in an interview with Stefan Buchen for the show ARD-Panorama. The manager for social responsibility refers to the chemical company’s magnanimous efforts. Translation: Our consequence of this is that we want to continue working to improve the living conditions of the workers.
Lonmin website's homepage, accessed a few months prior to the massacre.
