III- Access to Remedy

2. Non-Judicial Mechanisms – At the International Level

2.1 The OECD National Contact Point (NCP) [page 54]

The French NCP is very active in promoting responsible business conduct and the OECD Guidelines for Multinational Enterprises. Following the Rana Plaza tragedy, the NCP stepped up its activities, especially in the field of due diligence for supply chain risks, human rights and workers’ rights. The collapse of Rana Plaza In April 2013 highlighted the importance of the latest revision of the OECD Guidelines, which led to the integration of the UN Guiding Principles adopted in June 2011. This revision also sought to make NCPs more efficient by reviewing their Procedural Guidance.

NCPs are set up to promote and monitor compliance with the OECD Guidelines for Multinational Enterprises. They are non-judicial dispute resolution bodies that support remedial measures by offering their good offices and, where possible, giving parties access to mediation. Successful remedial measures rely on an environment of trust being established between the parties and constructive dialogue being initiated between the parties and the NCP, to improve compliance with OECD recommendations.

France’s NCP is tripartite, involving government, trade union and business representatives. This structure was praised by OECD Watch in its report “Remedy Remains Rare” (June 2015). Since the French NCP was created, the State’s involvement has enabled it to adopt a balanced multi-sectorial and inter-ministerial model that is relatively unique among its peers. Its members include representatives of the Ministry of the Economy and Finance, the Ministry of the Environment, the Ministry of Social Affairs, Labour and Employment, and the Ministry of Foreign Affairs and International Development. Another unique feature of the French NCP is its broad representation of labour groups, with six national trade unions featuring among its members. The employers’ organization MEDEF represents French businesses. The French NCP’s decisions are all consensual.

Following the Procedural Guidance review, the French NCP revised its internal rules in 2012 and 2014 to improve its efficiency in dealing with requests (timeline for dealing with files, options for following up on recommendations, and enhanced communication by way of statements on the admissibility of requests, follow-up statements and statements issued during the processing of files). The French NCP has also made it easier to call on external technical experts at any time, as seen during the Rana Plaza hearings and meetings with the CNCDH.

The revision of the French NCP’s internal rules has also improved the transparency of its work and helped structure dialogue with civil society. The NCP now holds an annual information meeting and an annual consultation meeting with organizations representing civil society. During these meetings, it presents its activity report and decisions, discusses current issues regarding responsible business conduct, and highlights the OECD’s role supporting responsible business conduct (through the Global Forum, consultative groups, sector-specific guides, roundtables, etc.). The NCP’s website is regularly updated, and features links to statements on requests, decisions and activities (activity reports, request dashboards, lists of promotional activities), as well as information on the OECD Guidelines for Multinational Enterprises and Global Forum on Responsible Business Conduct launched by the OECD in 2013.

In addition, the French NCP has recently been granted additional resources, with the promotion of the Chairman to the position of Advisor to the Director-General of the Treasury in 2012, and the appointment of a full-time Secretary-General in 2013 (who is an agent of the Directorate-General of the Treasury). The NCP’s main tool is the publication of decisions, which was reinforced following the 2011 revision. The NCP’s decisions are all made public and include case details and explanations, subject to confidentiality requirements. The NCP is committed to providing detailed answers to questions asked by complainants, including those concerning compliance with the OECD Guidelines, which is optional under the Procedural Guidance. If applicable, the NCP rules on non-compliance or partial compliance with the Guidelines, which not all NCPs do. In addition to offering good offices, the French NCP can rule on the feasibility of mediation, which it can perform directly if the parties agree to be bound by its ruling. If necessary, the NCP issues recommendations to parties. It can decide to follow up on decisions, including in the long term (see the specific instances on the Groupe Michelin in India and Socapalm – Groupe Bolloré in Cameroon, as well as the Rana Plaza report). Lastly, it can use all modern means of communication to contact complainants based abroad.

In 2013, the OECD launched an ambitious programme in which the French NCP is very involved. It is participating in innovative actions such as the horizontal review process (for example, dealing with NCP requests and communications), the sharing of experiences and regional capacity-building seminars for NCPs. The French NCP is also taking part in the peer review process, and is currently chairing a peer review of the Italian NCP. These actions are part of the OECD’s Action Plan to Strengthen National Contact Points36 and the G7 Action Plan of 13 October 2015, which seek to establish good practices for the entire NCP network,
ensuring that they are functionally equivalent. However, the decisions issued by NCPs are non-binding legal instruments. As such, NCPs cannot force a business to comply with the OECD Guidelines, even when they rule that these guidelines have been breached.

Actions Underway [page 55]

  • NCPs could play a key role in supporting access to remedial measures and promoting responsible business conduct and the OECD Guidelines around the world. France is therefore advocating that the OECD increase its support to NCPs so they can improve coordination, become functionally equivalent, develop procedures for sharing information and make the NCP network more dynamic.
  • In order for the French NCP to continue being one of the most efficient NCPs in terms of fulfilling its goals and responding to new requests, France recommends allocating sufficient operating resources to allow it to perform its duties.
  • The French NCP will continue to support other NCPs and take part in peer reviews, including a peer review of its own operations.

Actions to be Implemented [page 56]

  • Reinforce the NCP’s tools supporting dialogue with civil society by optimizing provisions in its internal rules (annual information meetings, annual meetings to discuss issues with civil society, calling on experts as required).

2.2 ILO Enforcement Mechanisms [page 56]

A unique international enforcement mechanism exists for International labour standards, ensuring that States apply the conventions they ratify. The ILO regularly checks whether these conventions are being correctly applied and highlights areas for improvement. If countries encounter difficulties in applying standards, it provides help in the form of social dialogue and technical assistance.

Two ILO bodies examine the reports submitted by Member States describing the steps they have taken in law and practice to apply the conventions, as well as the related observations formulated by employers’ and employees’ organizations. These bodies are the Committee of Experts on the Application of Conventions and Recommendations and the tripartite Conference Committee on the Application of Conventions and Recommendations.

There are also three specific procedures for examining representations and complaints: the procedure for examining representations about the failure to observe ratified conventions, the procedure for examining complaints about the failure to observe ratified conventions, and the special procedure for examining complaints about freedom of association (heard by the Committee on Freedom of Association).

Lastly, Article 37.2 of the ILO Constitution provides for the creation of a tribunal to hear disputes or questions relating to the interpretation of conventions.

Actions to be Implemented

  • Ensure that fundamental labour standards are applied in France and support their universal application by encouraging ILO to establish stricter enforcement mechanisms for States.
  • Encourage discussion on the social coherence of economic, financial and trade policies which would increase the ILO’s importance and influence among the institutions involved in the multilateral system and lead to the introduction of social conditions.

2.3 The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights [page 57]

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESC) was ratified by France on 18 March 2015 and took effect three months later on 18 June 2015. The Protocol does not create new obligations for France, but constitutes an additional means of enforcing the obligations it entered into when ratifying the ICESC in 1980. These obligations require it to respect, protect and implement the rights mentioned in the Covenant in its territory and in the territories of other States in which it is present, particularly through public and private actors operating abroad in the economic, trade and
financial fields.

This protocol introduces a procedure for individuals or groups seeking to establish their rights under the Covenant, after exhausting all domestic remedies, to submit communications to the Committee on Economic, Social and Cultural Rights. This mechanism enables alleged victims of a violation of the Covenant who have not obtained effective remedy at the national level to access justice through the United Nations by having their case heard by an independent committee of experts, which may award compensation for harm caused.

This communication mechanism is intended to:

  • Make the application of economic, social and cultural rights more effective and encourage States to implement them;
  • Clarify State obligations in the human rights field by supporting the adoption of positive measures and access to domestic justice.

The Optional Protocol is one of a range of similar mechanisms created for international conventions in the human rights field. Communications can also be submitted to the Human Rights Committee, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, the Committee on the Rights of the Child, the Committee on the Rights of Persons with Disabilities, the Committee on the Elimination of Racial Discrimination, the Committee on Enforced Disappearances and individual communication mechanisms for special procedures (the Special Rapporteur on extreme poverty and human rights, the human right to safe drinking water and sanitation, etc.).

2.4 The European Social Charter [page 57]

In order to promote and guarantee social rights not covered in the European Convention on Human Rights, the Council of Europe drew up the European Social Charter, which was adopted in Turin in 1961. Significantly, the 1961 Charter covers the right to work, the right to organize, the right to bargain collectively, the right to social security, the right to social and medical assistance, the right to the social, legal and economic protection of the family, and
the right to protection and assistance for migrant workers and their families.

The European Social Charter of 1961 was revised in 1996 to incorporate the rights mentioned in the Additional Protocol of 1988, to reinforce and improve several existing rights, and to add new rights.

France ratified the revised 1996 version of the European Social Charter, which took effect on 7 May 1999, at the same time as the 1995 Protocol providing for a system of collective complaints (ratified by 15 of the Council of Europe’s 47 Member States).

To enforce the Charter, a European Committee of Social Rights was created. This Committee adopts conclusions on the national reports submitted by State Parties, and adopts non-binding “decisions” on collective complaints lodged by national and international employers’ and employees’ organizations and NGOs. These conclusions and decisions must be approved by the Committee of Ministers of the Council of Europe.

At the National Level

2.5 The Defender of Rights [page 58]

The Defender of Rights, whose legal authority has been enshrined in the Constitution, was created in 2011. This independent administrative entity has jurisdiction to deal with subjects in four specific areas.

Any individual or legal entity can call on the Defender of Rights when they consider that they have been discriminated against or when they observe public or private representatives of law and order (police officers, customs officers, security guards, etc.) engaging in improper conduct.

The Defender of Rights can also be called on to address difficulties in dealing with public services (the Family Allowances Fund or CAF, the national employment agency or Pôle emploi, retirement funds, etc.).

Lastly, the Defender of Rights can be called on whenever someone considers that a child’s rights are not being respected. Complaints can be lodged by way of an online form, a letter, or through one of the Defender’s deputies.

This Defender of Rights replaces four previous entities: the Mediator of the Republic, the Defender of Children, the High Authority in the Fight against Discrimination and for Equality (HALDE), and the National Commission on Security Ethics (CNDS).

Given the Defender of Rights’ jurisdiction over discrimination-related matters, he/she plays a role in dealing with cases and mediation proceedings concerning CSR.

2.6 Grievance Mechanisms in Companies [pages 58-59]

Pursuant to UN Guiding Principle 29, “To make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted”, companies establish their own grievance mechanisms Their goal is to enable any affected stakeholder to question or lodge a complaint about the business’s operations.

As stated in Principle 31, in order to ensure their effectiveness, these mechanisms should be:

  • Legitimate
  • Accessible
  • Predictable
  • Equitable
  • Transparent
  • Rights-compatible
  • A source of continuous learning
  • Based on engagement and dialogue at the operational level.

In practice, grievance mechanisms in companies are generally:

  • Formal group-level mechanisms: whistleblower hotline/whistleblower procedures, mediators, etc.;
  • Mechanisms dealing with specific issues: harassment, discrimination, specific activities or specific countries;
  • Operations-level mechanisms for specific projects;
  • Institutional or voluntary bodies supporting social dialogue: works councils, international framework agreements, workplace health and safety committees, etc.

Actions to be Implemented

  • Encourage the establishment of grievance mechanisms by businesses that meet the following criteria for implementation:
    • They support dialogue, consultation and complaints for people who consider themselves adversely impacted;
    • Information is provided on the existence of these mechanisms;
    • Any complaints are dealt with at the earliest possible opportunity;
    • Reports on the implementation and/or results of these mechanisms are provided to stakeholders.

Existing tools:

  • “Rights-Compatible Grievance Mechanisms: A Guidance Tool for Companies and Their Stakeholders”, Harvard Kennedy CSR Initiative
  • “Addressing Grievances from Project-Affected Communities”, IFC