Grievance mechanism are defined by the UN Guiding Principles on Business and Human Rights (UNGPs) as “any routinized, State-based or non-State-based, judicial or non-judicial process through which grievances concerning business-related human rights abuse can be raised and remedy can be sought.” Commentary to Guiding Principle 25 notes that state based judicial or non-judicial grievance mechanism (NJGM) should form the foundation of a wider system of remedy that includes operational level mechanism and enhanced by collaborative and regional and international human rights mechanisms.
A NJGM (‘dispute’, ‘complaints’ and ‘accountability’ mechanism) is a formal, non-legal complaint process that can be used by individuals, workers, communities and/or civil society organisations that are being negatively affected by certain business activities and operations (SOMO’s Human Rights & Grievance Mechanisms).
“Remediation and remedy refer to both the processes of providing remedy for an adverse human rights impact and the substantive outcomes that can counteract, or make good, the adverse impact. These outcomes may take a range of forms, such as apologies, restitution, rehabilitation, financial or non-financial compensation, and punitive sanctions (whether criminal or administrative, such as fines), as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition.”
UNGP 27 states that both State and non-State based NJGM can play “an essential role in complementing and supplementing judicial mechanisms” and can contribute to faster, potentially more effective and direct remedy for victims. They are therefore an important addition to judicial mechanisms, which even where effective and well-resourced, may be time-consuming and costly. Moreover, there are many situations where claimants may not favour a judicial approach, and therefore may benefit from NJGMs. NJGMs can be adjudicative- assess compliance with set standards, or dialogue-based-play a mediation role (Commentary to GP 28) and their outcomes are often varied and do not necessarily result in remedy.
UNGP 31 sets out eight “effectiveness criteria” for non-judicial grievance mechanisms. Mechanisms should be: legitimate, accessible, predictable, equitable, transparent, rights-compatible, based on dialogue and engagement, and a source of continuous learning. While these criteria mostly relate to the quality of processes, they also include an important requirement that outcomes should be in line with internationally-recognized human rights.
The UNGPs identify:
State-based NJGM (GP 27 and Commentary), such as administrative, legislative and other non-judicial mechanisms administered by a branch or agency of the State, or by an independent body on a statutory or constitutional basis. Examples include:
National Human Rights Institutions (NHRIs), which are institutions created in national law with broad mandates relating to the protection and promotion of human rights within their respective jurisdictions and in line with the Paris Principles. There are different models of NHRIs including commissions and ombudspersons. In addition, some NHRIs have quasi-judicial functions and thus the power to order remedies. An example is the Uganda Human Rights Commission that has an established tribunal. The Commission is established by Uganda’s 1995 Constitution and operationalised under the Uganda Human Rights Act, 1997. The Commission is empowered under the Constitution to order legal remedies or redress, which is the basis for the establishment of the Tribunal. In the conduct of matters, the Tribunal applies reduced legal technicalities to the extent that this does not compromise the principles of natural justice and to facilitate expeditious conclusion of matters. In 2016, the Tribunal heard and concluded 139 matters. (UHRC 19th Annual Report, 2016)
Ombudsperson offices e.g. Equality Ombudsman, Sweden– which receives and examines complaints of harassment and discrimination including in the workplace and works towards preventing discrimination.
Government-run complaints mechanisms such as those established within certain government functions for example, labour, consumer protection, etc.;
National Contact Points (NCPs) under the OECD Guidelines for Multinational Enterprises. Government-backed NCPs are mandated to help stakeholders find a resolution in cases of alleged non-observance of the OECD Guidelines for Multinational Enterprises consistent in a manner that is impartial, predictable, equitable and compatible with the principles and standards of the OECD Guidelines for Multinational Enterprises. NCPs have a wide-reaching scope for they can receive complaints regarding global activities of any corporation headquartered in or operating from an OECD member or adhering country. NCPs vary in practice which contributes to uneven performance. NCPs, are in many cases are the only available grievance mechanisms though they have also been criticised as lacking in effectiveness (OECD Watch, Remedy Remains Rare).
Non-State based NJGMs (GP 28, GP 29 and GP30) are further differentiated between those “administered by a business enterprise alone or with stakeholders or through a mutually acceptable external expert or body usually referred to as operational-level grievance mechanisms, or those administered by an industry association or a multi-stakeholder group”. Operational grievance mechanisms play two key roles: identifying human rights impacts as part of ongoing human rights due diligence; and dealing with grievances early thus preventing them from escalating and compounding (Commentary to GP 29). , It is Important however, that such mechanisms should not preclude access to judicial or other state-based processes, or undermine the role of legitimate trade unions. They are rather meant to help to identify problems early, before they escalate, and provide solutions that offer remedy to anyone impacted.
Non-State-based grievance mechanisms offered by regional and international human rights treaties. These ‘treaty bodies’ as they are called, are in essence committees comprising of independent experts elected by state parties to the treaty. They monitor the implementation by states of the rights set forth in the treaties and decide on complaints brought against those States. These bodies have traditionally dealt human rights violations by state parties but some have also dealt with and are increasingly willing to deal with state failure to protect against abuses by third parties including business. A notable example is the 1996 case brought before the African Commission on Human and Peoples Rights against the government of Nigeria by the Social and Economic Rights Centre (SERAC) and the Centre for Economic and Social Rights. The complainants’ case was that the government which, was also a shareholder in a consortium with Shell, had facilitated the exploitation of oil in Ogoni region without regard for the health and environment contrary to the African Charter on Human and Peoples Rights. The Commission issued a decision in 2001, in which it found the Nigerian government in violation of the Charter and appealed to it ensure protection of the environment, health and livelihood of the people of Ogoniland.
Women seeking access to remedy often face additional barriers. As cautioned in the Gender Dimensions of the Guiding Principles on Business and Human Rights guidance, “[e]ven if affected women are able to access certain judicial, non-judicial or operational-level mechanisms, they are unable to enforce suitable remedies, because these remedial mechanisms typically adopt gender-neutral processes or, worse, operate within existing patriarchal norms.” The guidance therefore advises that “all effectiveness criteria for non-judicial grievance mechanisms should be interpreted in a gender-responsive manner, considering especially the intersectional nature of discrimination faced by women in accessing such mechanisms and in enforcing effective remedies against business enterprises.”
Of increasing importance are grievance mechanisms offered by the International Financial Institutions (IFIs) (e.g. World Bank’s Inspection Panel, International Finance Corporation’s Compliance Advisor’s Office, European Bank for Reconstruction and Development’s Project Complaints Mechanism), which offer opportunities to raise concerns about investments around the globe for which they provide funding. These mechanisms which are both adjudicative (compliance assessment) and mediatory (dispute-resolution), are important given the immunity enjoyed by IFIs which would otherwise leave victims with no avenue for redress. A positive aspect is that IFIs require or encourage the establishment of project or company level grievance mechanisms but remedies in practice or police are not guaranteed.
Aware of the challenges faced by victims in cases where businesses are involved in human rights violations, the UN Office for the High Commissioner for Human Rights in 2014 launched the Accountability and Remedy project with ‘a view to contribute to a fairer and more effective system of domestic law remedies in cases of business involvement in severe human rights abuses.’ Part II of the initiative focuses on state-based non-judicial mechanisms and aims to “identify and analyse lessons learned, best practices, challenges and possibilities to improve the effectiveness of State-based non-judicial mechanisms that are relevant for the respect by business enterprises for human rights, including in a cross-border context”.
Non-judicial grievance mechanisms are reflected in the enhancement of effective remedy and the rule of law under SDG 16 and addressing labour rights under SDG 8. Well-functioning non-judicial grievance can contribute to positive institution building, raised transparency and accountability, and conflict prevention, thereby also contributing to realisation of other SDGs and their targets. In cases where businesses are involved, issues can directly relate to child labour, forced labour and modern slavery (SDG 8.7), working environment (SDG 8.8), discrimination in employment and occupation (SDG 10.3), among many others.
This point presents the action of developing, in collaboration with experts and its main human rights stakeholders and organizations, a toolbox that will help companies prevent human rights violations and promote the respect for human rights through their activities. This “Toolbox” will be composed of different elements including how companies can create grievance mechanisms.
Action point 2
Prepare a brochure on grievance mechanisms related to public authority
This point states that the federal government will engage in a research mission to list all of the different state-based mechanisms (both judicial and non-judicial) that can be used in cases of human rights violations by companies or organizations (Belgian or foreign). The NAP explains that “it is the duty of the authorities to ensure effective remedies for the victims of human rights violations by companies and organizations. This is through appropriate judicial, administrative, legislative or other means. ..Reparation can take place in a variety of ways, ranging from public apologies to penalties (criminal or administrative), including compensation, rehabilitation, financial and non-financial compensation, and prevention of violations, for example through injunctions or guarantees of non-recurrence. Reparation procedures must be neutral, protected against corruption and free from political or other attempts to influence the outcome. The NAP further comments that in Belgium “various legal procedures (both judicial and extra-judicial procedures and grievance mechanisms) form the basis of the grievance system. Mediation procedures can be accessed through the OECD NCP, and different provisions included in the criminal law can be imposed through the Belgian courts, etc. However, many of these grievance mechanisms are insufficiently known about. The federal government will engage in a research mission to list all of the different state-based mechanisms (both judicial and non-judicial) that can be used in cases of human rights violations by companies or organizations (Belgian or foreign).
The mentions that in the “Baromètre RSE 2011” (see Action point 18), it was discovered that the theme of human rights was the third most important challenge identified by companies, while only 28% had a code of conduct that addressed human rights, merely 25% had grievance mechanisms for collecting complaints about human rights violations, and barely 9% had a human rights audit system.
The Ministry of Energy, through the Division of Participation and Dialogue, will promote the creation of formal and stable opportunities for dialogue between businesses and communities in areas where they expect to install energy projects. To ensure the effectiveness of these spaces, the “Guide for Participation Standards in the Development of Energy Projects” will be available to promote the existence of public sector mechanisms aimed at decreasing existing asymmetries between the parties, such as a registry of advisors and facilitators for communities to access; a symmetry fund to finance the advisors and facilitators; a complaints mechanisms regarding compliance with agreements that forwards complaints to the authorities; and alternative dispute resolution mechanisms to resolve any disagreements that may arise in the dialogue process. Efficiency criteria set out in Guiding Principle No. 31 will be included in the design of the complaint mechanism.
Pillar 2: The Corporate Responsibility to Respect Human Rights
What does the Government expect from business enterprises? (page 51)
That they create operational mechanisms for remedy allowing them to identify potential impacts and establish remedial actions in case this happens.
In line with Principle 27 of the Guiding Principles, States must develop effective and appropriate non-judicial grievance mechanisms, at the same time as judicial mechanisms, as an integral part of a comprehensive state system to redress the violation of human rights by business enterprises.
The State must inform the public about the existence and operation of these mechanisms, and take into consideration and act upon their recommendations. These mechanisms should also keep an open dialogue with citizens, especially with risk populations within the framework of corporate activities. It is desirable that these mechanisms are introduced, upon their mandate, at international exchanges and development for a about business and human rights; for example, they could be included in discussions with regional and global human rights institutions and in the revisions made to the progress achieved by the 2030 Agenda.
Action Point 2.1
The National Contact Point for OECD Guidelines (NCP) of the Ministry of Foreign Affairs will adopt a series of measures to strengthen its duties. For this, it will:
Renew and strengthen the Mirror Committee, a body composed by representatives from the business community, unions, NGOs, and academia -with the support of Chile’s National Human Rights Institute (NHRI). The Committee’s main role is advising the NCP and supporting his/her work, including the dissemination and treatment of the cases he/she receives. This role will be strengthened by renewing the Committee to enhance the promotion of a Responsible Corporate Behaviour among national stakeholders
Submit, in conjunction with the Directorate of Human Rights of the Ministry of Foreign Affairs, before the Mirror Committee of the National Contact Point, the existing relationship between the OECD Guidelines for Multilateral Enterprises and the UN Guiding Principles on Business and Human Rights.
Prepare, in conjunction with the NHRI, an Agreement of Good Intentions with the purpose strengthening communication between both organisations, share information about potential specific situations and infringement of the Guidelines, specifically regarding the chapter on human rights, and carry out joint execution of the same in dissemination and training activities.
Organise, in conjunction with the Directorate of Human Rights of the Ministry of Foreign Affairs, dissemination and training activities, covering both instruments, for different national stakeholders, by including the mediation/conciliation role of the National Contact Point in the resolution of disputes with multilateral enterprises. Activities include the preparation of a briefing leaflet covering the relationship between OECD Guidelines and the Guiding Principles. …
Be voluntarily evaluated in 2017 through peer review, which will allow the country to identify the NCP’s strengths, as well as areas for improvement, thus becoming the first State in Latin America and the Caribbean to go through this kind of process.
Action Point 2.2
The Ministry of Labour will guarantee access to audit actions should labour rights be infringed, by modernising the Labour Directorate.
Action Point 2.3
The National Institute of Human Rights will:
Introduce business and human rights standards in observation missions and reports.
Collaborate with the OECD National Point of Contact on business and human rights related matters.
Action Point 2.4
The Superintendence of the Environment (SMA) will:
Permanently update the National Information System for Environmental Auditing, in publicly accessible website.
Apply diverse prioritising criteria, such as “territorial vulnerability”, which addresses institutional and geographical aspects, and “grievances”, by taking into consideration the number of grievances received from citizens and the different sectors.
Apply criteria for prioritisation in processing and managing grievances submitted by citizens, such as “Level of seriousness of the facts reported” and “Public commotion.” The SMA has available a process for communities to raise grievances about facts that may constitute infringements falling under its competence.
Apply the Technical Protocol for the Execution of Environmental Auditing Activities concerning Measures Associated with the Human Environment, in the auditing of measures contained in Environmental Qualification Measures Associated with the Human Environment (indigenous or non-indigenous.)
Action Point 2.5
Within the framework of the Local Development Policy of the Ministry of Energy, the following actions will be carried out:
Promotion, in coordination with other relevant public services, and through multisectoral dialogue, the development and implementation of a grievance mechanism so that business enterprises and communities may forward to the authority their concerns about non-compliance of an agreement existing between the parties.
Promotion of formal and permanent spaces for dialogue between business enterprises and communities, whereby potential impacts may become known and
the relevant measures may be taken. For smooth operation of these spaces for dialogue, the public sector will promote the availability of a record of advisors and facilitators to be used by communities, and a Symmetry Fund47 allowing to finance such advisors or facilitators
Action Point 2.6
Within the framework of the Energy Policy, the Local Development Policy and the Chapter on Indigenous Relevance of Energy 2050, the Ministry of Energy will promote the development of mechanisms for the resolution of disputes between communities and business enterprises within the context of the development of energy projects, will may consist in, inter alia, mediation, redress or other mechanisms that may be relevant.
Strand 3: Non-State-Based Mechanisms (page 62-63)
Non-state based redress mechanisms play an important role in the design of a holistic remedy system in the field of business and human rights, since this allow the owners of rights to look for redress actions outside or beyond the state-based system. In this regard, States must study the way to facilitate access for such non-state-based redress mechanisms to take care of violations against human rights related with business enterprises.
A category of non-state-based mechanisms are those managed by a business enterprise alone, or in conjunction with stakeholders, by an economic association, or by a multilateral group of stakeholders. This allows business enterprises and communities to develop spaces for dialogue, measurement, resolution and/or remedy, and to look for solutions within the relevant administrative structures that are culturally appropriate and compatible with human rights. When these mechanisms are developed within the framework of business and human rights, they may offer concrete advantages to resolve situation that may potentially vulnerate human rights, such as prompt access and remedy, reduced costs and/or cross-border reach.
Likewise, Principle 29 highlights the fact that business enterprises should set out or participate in effective grievance mechanisms available, at an operational level, to people and communities that may suffer from negative consequences, and so that the damage caused may be promptly and directly redressed
Action Point 3.1
The Under-Secretariat of Economy, supported by the Ministry of Foreign Affairs, will coordinate the preparation of a booklet containing guidelines about operational grievance mechanisms that may be adopted by business enterprises. It will consult, for drafting this document, with business enterprises participating in the business and human rights working group (a commitment set out in the table about the contribution of other actors, page 86.)
Strand 4: Criteria for the Effectiveness of Non-Judicial Grievance Mechanisms (page 63-64)
The Guiding Principles include criteria for non-judicial grievance mechanisms, both state-based and non-state-based aimed at ensuring their effectiveness. These mechanisms are:
Legitimacy
Accessibility
Predictability
Equity
Transparency
Compatibility with rights
Source of continuous learning
Based on dialogue and participation
Action Point 4.1
All actions contained in this Plan related with state-based non-judicial mechanisms and non-state-based mechanisms will refer to these Principles of Effectiveness for their implementation and continuous improvement
Action Point 4.2
All training and other actions included in this Plan addressing the subject of business and human rights will make special reference to non-judicial grievance mechanisms available in Chile and the principles of effectiveness.
Another major challenge in the implementation of the Plan has to do with strengthening the institutional offer of judicial and non-judicial, state and non-state reparation mechanisms, and the population’s access to them. It is essential to work hand in hand with the business sector to foster a culture of respect for the rule of law by participating in state reparation mechanisms and promoting, through its activities, the prompt resolution of any claims that may arise.
V. INTERNATIONAL NORMATIVE FRAMEWORK
(…)
On the other hand, the Pact for Legality: Effective Security and Transparent Justice seeks to guarantee access to justice for all people in the event of a rights violation. This objective is fundamental in the framework of the National Action Plan (NAP), as it strengthens the Remediation pillar, which will be developed later, but which seeks to strengthen access to justice in business and human rights cases. The national government seeks to strengthen both the judicial system and all non-judicial mechanisms that ensure conflict resolution and guarantee reparations for all victims of human rights violations.
VIII. FUNDAMENTAL PILLARS
(…)
iii. Fundamental Pillar 3: Access to remedy mechanisms
Strand 2 [Eje nº 2]: Access to non-judicial remedy mechanisms
The Presidential Advisory Office for Human Rights and International Affairs will disseminate a map/roadmap of non-state mechanisms to guide people affected by business activity.
The Ministry of Trade, Industry and Tourism [Mincit], as the entity where the Colombian NCP of the OECD Guidelines for Multinational Enterprises has its seat, will continue its work of disseminating the NCP’s non-judicial dispute resolution mechanism, in the events it organises in fulfilment of its functions of disseminating the Guidelines.
The Presidential Advisory Office for Human Rights and International Affairs, together with the Presidential Advisory Office for Public-Private Management, will design a guidance mechanism to ensure that human rights grievance mechanisms are effective and aligned with the criteria set out in the Guiding Principles.
The Ministry of Justice [Minjusticia] will manage the education and training of the operators of the Houses of Justice and Citizen Coexistence in Conflict on human rights and business.
The Ministry of Justice [Minjusticia] will facilitate access to alternative methods of conflict resolution in disputes arising from business activities that violate human rights in the territories.
Business associations will promote the importance of human rights grievance mechanisms and their effectiveness.
The SIC [Superintendencia de Industria y Comercio] will identify in telecommunications companies in Colombia which mechanisms are in place to guarantee due process in relation to the rights of petition presented by customers or citizens, within the operational framework.
The SIC [Superintendencia de Industria y Comercio] will identify the actions or strategies of telecommunications companies in Colombia to address or remedy the actual and potential negative consequences of their operation.
The SIC [Superintendencia de Industria y Comercio] will provide technical assistance to companies to design and strengthen their grievance mechanisms with a focus on human rights and business.
“It is incumbent on states to protect human rights. This duty includes the provision of efficient and effective means of remedy for those whose rights have been infringed. Article 36 of the Charter of Fundamental Rights and Freedoms provides that: “Anyone may claim, in the prescribed manner, their rights in an independent and impartial court and, where so provided, before another authority .“The third pillar of the National Action Plan is designed to ensure that, in the field of business and human rights, this right is genuinely available to everyone without unnecessary obstruction, and that it results in efficient remedies.
That is not to say that the third pillar is simply a framework for the improved functioning of the courts. Extrajudicial remedies are also attainable. The third pillar also includes quasi-judicial tribunals, dispute resolution authorities, informal ombudsman-type institutions and mediation institutions (such as the National Contact Point, a Government-devised neutral platform to hear complaints about infringements of the OECD Guidelines for Multinational Enterprises). Ultimately, the ideal dispute is one that never arises in the first place. The third pillar also includes the means to prevent disputes at the businesses themselves. …
Extrajudicial state resources: Other state bodies may also provide means of redress. These include both subsequent and preventive means.
Provisional protection permits various activities that may constitute a risk, in particular industrial operations with a major impact on the surrounding area. The public is entitled to participate in these proceedings. Arrangements must be in place so that public engagement is not complicated and so that the public is informed in plain language and in a readily accessible. On the other hand, this engagement must not be exploited for obstruction or to make proceedings longer and more expensive than they need to be.
In proceedings on offences, authorities tend to provide subsequent protection – if there is a breach of the law, an authority may, ex officio or on a proposal, order a remedy and, where appropriate, impose penalties. It is imperative for authorities to be steadfast in identifying and prosecuting breaches of the law and for the penalties to be effective and enforceable.
Ultimately, authorities may deal with several types of dispute. As a rule, such proceedings are faster and less formal than judicial proceedings. Dispute resolution by an authority should really be selected only in those areas where this makes sense in view of the nature of the dispute. The decision must subsequently be reviewable by a court.
Extrajudicial non-state resources: The Czech Republic acknowledges the benefits and advantages of alternative dispute resolution. Alternative dispute resolution is often faster, cheaper, less formal and more accessible to the parties. As the parties to a dispute are apt to accept an amicable solution better than an authoritative ruling, the Czech Republic welcomes and supports the development of alternative dispute resolution platforms among non-state entities, especially consumer organisations, trade unions and industrial associations. Nevertheless, no means of alternative dispute resolution must restrict access to an ordinary court. This means that arrangements must always be in place to ensure that both parties have decided on alternative resolution knowingly and voluntarily, except in situations where participation in an extrajudicial solution is required directly by the law. Under no circumstances, however, is the protection of the weaker party (e.g. the consumer) allowed to be violated.
Nonetheless, it should be remembered, first and foremost, that the ideal situation is one where no dispute occurs at all. When an action is brought before a court, this is not the start of the dispute, but the final step after previous attempts to reach a settlement have failed. The businesses themselves should offer a formalised mechanism for the amicable settlement of disputes. The dispute resolution instruments offered by the state should be geared towards prevention and actively assist in the search for an amicable solution.”
Companies owned or controlled by the state [page 13]
“The Danish Government believes that public authorities, including companies owned or controlled by the state, should live up to the same requirements that private companies are expected to fulfill. Therefore, the non-judicial remedy mechanism can also examine complaints involving public authorities (GP 4).”
4. Access to remedy
4.1 UNGPs on access to remedy [page 19]
As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy (GP 25).
This includes providing effective and appropriate judicial and non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse.
In order to ensure their effectiveness, non-judicial grievance mechanisms, both State based and non-State-based, should be:
a) Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes;
b) Accessible: being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access;
c) Predictable: providing a clear and known procedure with an indicative timeframe for each stage, and clarity on the types of process and outcome available and means of monitoring implementation;
d) Equitable: seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms;
e) Transparent: keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake;
f) Rights-compatible: ensuring that outcomes and remedies accord with internationally recognized human rights;
g) A source of continuous learning: drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms;
The effectiveness criteria in the UNGPs largely coincide with those recommended in the OECD guidelines for the national contact points, which also stress visibility and accountability.
4.2 Recommendations from the Council for CSR on access to judicial and nonjudicial remedy [page 20]
“In November 2010, the Council for CSR established a working group who would be able to work intensively on the recommendations for implementing remedy as described in the UN Protect, Respect, and Remedy-framework. The working group was composed by a representative from the Confederation of Danish Industry, the Danish Confederation of Trade Unions, the Danish 92 Group, the Danish Shipowners’ Association and the chair of the Council.
The working group followed closely the final work of the SRSG John Ruggie on the development of the Guiding Principles for the implementation of the Protect, Respect and Remedy framework as well as the work of the OECD Investment Committee on the revision of the OECD guidelines for multinational enterprises. …”
Recommendations on non-judicial remedy
“The Council recommended that a Danish non-judicial mediation and grievance mechanism for responsible business conduct should be based on the OECD Guidelines on Responsible Business Conduct, which incorporate the UN’s recommendations on business and human rights. The mechanism should also be established in accordance with the UN and OECD criteria for non-judicial mediation and grievance mechanisms, including legitimacy, accessibility, transparency and predictability. Furthermore, the Council’s recommendations included the following unique features:
The institution should be established by Danish law;
The institution should be able to take up cases on its own initiative;
The institution should be able to handle cases involving not only private companies but also public authorities and private organisation, like NGO’s;
The company which is subject to a complaint should be given a period of two months to solve the conflict with the complainant without the involvement of the national institution.
The recommendations on non-judicial remedy from the Council for CSR was for the most part implemented by the Danish Government (see section 4.4).
The recommendations from the council on a Danish mediation and grievance mechanism can be found here: http://www.csrcouncil.dk/documents”
4.3 Actions taken [page 20-21]
Access to non-judicial remedy
“In the second national action plan for CSR from March 2012, the Danish Government announced the establishment of a Mediation and Complaints-Handling Institution for Responsible Business Conduct. The institution was established by Danish law, which was passed through parliament and approved on June 12, 2012. The Danish Government wanted to ensure that a non-judicial remedy has a maximum of legitimacy and authority. The purpose of the institution is to investigate cases involving potential adverse impacts by Danish companies on international CSR guidelines as described in the OECD Guidelines for Multinational Enterprises. The mediation and complaints-handling institution is established in accordance with the international effectiveness criteria for non-judicial mediation and grievance mechanisms as described in the UNGPs and the OECD Guidelines for Multinational Enterprises (GP 31). The institution will base its assessments on the OECD Guidelines for Multinational Enterprises, which incorporate the UN Guiding Principles on Business and Human Rights, including in particular the due diligence concept as described in the UN Guiding Principles, when looking at a complaint.
The institution focuses on mediation to solve complaints – both on company level and if that is not possible, assisted by the Mediation and Complaints-Handling Institution. If mediation is not possible, the institution can initiate an investigation of the matter and based on the result, make a public statement. The institution can examine complaints involving not only Danish private companies but also public authorities and private organisation, like NGO’s. It can also take up cases on its own initiative, which will allow the institution to be proactive in cases of substantive importance. As a first step in the case handling procedure the institution gives the company two months to solve the conflict with the complainant without the involvement of the institution itself. If the company does not solve the matter on its own, the institution undertakes an initial assessment and based on the result the institution can offer mediation or investigation. The institution which has existed since November 1st, 2012 is composed of five members – one chairman, one expert and three members appointed on the recommendation of the following organisations; Confederations of Danish Industries, the Danish Confederation of Trade Unions and the Danish 92 Group which is an association of 23 different Danish NGO’s. For more information on the member of the institution see: www.businessconduct.dk.
The institution is also working to promote the respect for the OECD Guidelines and the knowledge of the institution. So far the promotional activities have included among other:
Homepage in Danish and English; www.businessconduct.dk;
Survey among Danish companies on the knowledge of the institution and of the OECD Guidelines in order to be able to measure the progress in the coming years;
Information leaflet in Danish, English, French and Spanish; the leaflet has been distributed through 112 Danish embassies for audiences abroad;
Translation of the OECD Guidelines for Multinational Enterprises into Danish;
Briefings, presentations and dialogue with interest groups, NGOs, etc. in order to raise awareness of the institution and the OECD guidelines for multinational enterprises and the UN Guiding Principles;
Development of guidance on due diligence in the supply chain and company-based conflict resolution;
Instruction for Danish Embassies encouraging them to raise awareness about the Danish National Contact Point to local stakeholders.
Other examples of non-judicial institutions which contribute to remedy for victims of business-related human rights abuses, include Employment Tribunals, national Ombudsman, and Consumer tribunal. Furthermore, Denmark has mechanisms for dealing with cases of race, gender, disability, age, religious discrimination in employment or services, etc.”
Appendix 2, GP 29
Access to remedy [page 35]
“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.”
Initiatives taken or planned as a dedicated measure to implement the UNGPs [page 35]
“The state-based grievance mechanism includes the operational-level as part of its complaintshandling process. When a complaint is approved for further consideration, the Mediation and
Grievance Mechanism for Responsible Business Conduct encourages the parties (petitioner and respondent) to resolve the matter themselves. This serves to create the basis for a dialogue between the parties. If the parties succeed in resolving the matter on their own, the Institution has no further involvement. The parties must simply notify the Mediation and Complaints-Handling Institution for Responsible Business Conduct within three months from submission of the complaint to indicate whether or not they have found a solution. Matters resolved between the parties are not subject to any form of publication by the Institution.”
Appendix 2, GP 31
Access to remedy [page 35]
Effectiveness criteria for non-judicial grievance mechanisms
In order to ensure their effectiveness, non-judicial grievance mechanisms, both State based and non-State-based, should be:
a) Legitimate:
b) Accessible:
c) Predictable:
d) Equitable:
e) Transparent:
f) Rights-compatible:
g) A source of continuous learning:
Operational-level mechanisms should also be:
h) Based on engagement and dialogue:
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 36]
The Danish Mediation and Complaint Handling Institution has been established in accordance with the international criteria for non-judicial mediation and grievance mechanisms (UNGPs) as well as the criteria for national contact points as stated in the OECD Guidelines for Multinational Enterprises (Visibility, Accessibility, Transparency, Accountability):
a) To ensure legitimacy the institution has been established in Danish law
b) Anyone can submit a complaint to the Mediation and Complaints-Handling Institution
c) A description of the complaint handling procedure has been made public along with an indicative timeframe for each step in the process
d) The chairman shall assist the weaker party that may require special support, but also assist companies, for example, so that the chairman can help to conclude a case quickly and in a way that also takes the company’s situation into account. The Mediation and Complaints Handling Institution for Responsible Business Conduct may allocate advisers to one or both
parties. The purpose is to ensure that the mediation outcome is in the interests of both parties.
e) The institution will inform the public of the cases the institution is handling. For every step in the case handling the institution will make a statement which will be made publicly available on the institution’s website. Information from a case is subject to the access to information act once the case has been concluded. Finally, the Institution will prepare an annual report that is published and also discussed with the Council forCorporate Social Responsibility and the OECD’s Investment Committee, in order to improve the work of the Institution.
f) The purpose of the institution is to help solve conflicts in accordance with the OECD Guidelines for Multinational Enterprises.
g) In addition to considering concrete incidences of infringement, the Mediation and ComplaintsHandling Institution also has the object of promoting the implementation of the OECD Guidelines for Multinational Enterprises, and compliance by Danish companies, authorities and organisations. The Mediation and Complaints-Handling Institution will also conduct activities that support the CSR efforts of Danish companies, authorities and organisations, for example as guidance in relation to the consideration of concrete cases, or in information and education activities. The institution will also work with other national contact points and the OECD Investment Committee in terms of concrete complaint handling as well as promotional activities.
h) Dialogue and mediation play a central role in the complaint handling.
4 Access of victims of human rights violations to legal remedies [page 30-31]
“Companies are encouraged to increasingly use non-binding complaint mechanisms related to human rights and to cooperate with non-governmental organisations.”
4.1 Development of the OECD National Contact Point
“The OECD Guidelines include a monitoring mechanism referred to as the National Contact Points (NCPs), which are established by governments adhering to the Guidelines. NCPs promote the Guidelines and implement them.
The primary objective of the OECD procedure is to promote the resolution of conflicts between the parties. The NCP´s task is to act as a mediator in this process. Where necessary, in addition to the mediation duty, the NCP will make a statement on whether the company in question followed the OECD Guidelines. The statement of the NCP is not a legal remedy in the sense of obliging a company to change its operations or in the sense of resulting in potential compensation or other types of reimbursement for activities in violation of the guidelines.
The NCP in Finland is the Ministry of Employment and the Economy together with the Committee on Corporate Social Responsibility. The Committee states, by request of the Ministry, whether it sees that a company has followed the Guidelines. Finnish NCP’s procedures are described in more detail in the background memo and online15.
As a follow-up measure, the working group proposes that
alternatives for the development of the NCP be mapped out. In the meantime, the procedures of the NCP shall be clarified and communications shall be made on them.
Principal responsible party: Ministry of Employment and the Economy, schedule before the end of 2015.”
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:
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
III. Federal Government expectations regarding corporate due diligence in respecting human rights
Grievance mechanism [page 11-12]
“For the early identification of (actual or potential) adverse impacts, enterprises should either establish their own grievance procedures or play an active part in external procedures. Such procedures may, for example, be established by sectoral associations. The mechanism should be structured to match the target group. Accordingly, the target group should be consulted when the procedure is being devised. When new mechanisms are established as well as when existing mechanisms are used, care should be taken to ensure that they provide a fair, balanced and predictable procedure which is accessible to all those who might be affected (for instance by eliminating linguistic or technical barriers). As an extra measure, consideration should be given to the creation of offices with which complaints can be lodged anonymously.
The procedure should provide for maximum transparency for all stakeholders and should comply with international human rights standards. Existing complaints offices within an enterprise or its environment should be screened for compliance with the criteria defined above.
The grievance mechanism of each enterprise and its whole process of corporate due diligence should be subjected to regular practice-based reviews to assess their effectiveness.”
IV. Key areas for action [page 13]
“In relation to the three pillars of the UN Guiding Principles, the following are the primary areas for action: …
access to grievance and remedy mechanisms.”
1.1 Basic rules of economic policy
Development policy
Measures [page 20]
“The requirements set out in the UN Guiding Principles and in the National Action Plan, in particular in its chapter III, on due diligence with regard to human rights, also apply to the organisations that implement development policy, including bodies that provide financing for development. They also serve as a basis for further assessment and monitoring and, where appropriate, further development of the grievance procedures that state implementing organisations, including financing bodies, have already established.”
1.3 State support
Export credits, investment guarantees and other instruments for the promotion of external trade
Measures [page 25]
“The National Contact Points for the OECD Guidelines (see subsection 4.2 below) will be upgraded to become the central grievance mechanism for external trade promotion projects.”
4.1 Access to justice and the courts for injured parties
Support for remedy mechanisms in third countries [page 37-38]
With regard to potential human rights violations within supply chains, great importance attaches to reinforcement of the rule of law and democracy in the relevant third countries, because that will create conditions for the introduction of effective redress mechanisms in those countries.
One contribution to the achievement of this objective is made by the German Foundation for International Legal Cooperation (IRZ), which was established by the Federal Government in 1992. … Alternative means of dispute settlement such as arbitration tribunals and mediation also feature in the work of the IRZ.”
Measures
“There are already enterprises that give their own employees and outsiders the opportunity to report potential or actual violations of human rights in the framework of in-house or industry-wide grievance procedures. The Federal Government will highlight best practices in future and promote the adoption of such mechanisms.”
4.2 National Contact Point for the OECD Guidelines [page 39-40]
“The National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises has been operating ever since 2001 as an extrajudicial grievance mechanism. It is based at the Federal Ministry for Economic Affairs and Energy and has a remit to disseminate information about the OECD Guidelines, to raise awareness and to promote compliance with them. The NCP also helps to resolve problems arising in connection with the implementation of the Guidelines. To this end it examines incoming complaints and, if a complaint falls within its responsibility, offers to mediate between the parties. Among other things, the NCP is responsible for complaints of insufficient respect for human rights and of insufficient consideration for human rights in the exercise of companies’ due diligence as defined in the OECD Guidelines. In their revised version of 2011, containing specific recommendations relating to the respect for human rights by companies, the OECD Guidelines are based explicitly on the UN Guiding Principles on Business and Human Rights. This means that the grievance mechanism for which the OECD Guidelines provide serves the implementation of the UN Guiding Principles on Business and Human Rights.
The NCP takes its decisions in consultation with the Interministerial Steering Group on the OECD Guidelines and with the “OECD Guidelines” Working Group. The Interministerial Steering Group comprises representatives of the Federal Foreign Office, the Federal Ministry of Labour and Social Affairs, the Federal Ministry of Food and Agriculture, the Federal Ministry of Finance, the Federal Ministry of Justice and Consumer Protection, the Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety and the Federal Ministry for Economic Cooperation and Development. The decisions of the NCP are taken in coordination with this Interministerial Steering Group. Besides the aforementioned government ministries, the members of the Working Group also include representatives of the German Global Compact Network, business associations, trade unions and non-governmental organisations. The Working Group provides a forum for discussion about current issues relating to the Guidelines. Its members are also kept informed of the receipt and outcome of complaints. Explanatory notes on the grievance procedure, (including information on complaints received and their processing), are accessible online on the website of the Federal Ministry for Economic Affairs and Energy and were revised jointly with the Working Group in 2014.
In the context of the German G7 presidency, the Federal Government in 2015 advocated for the strengthening of mechanisms providing access to remedies in the event of human rights violations. To this end, the G7 encouraged the OECD to promote peer reviews of National Contact Points. The German NCP will undergo a peer review in the second quarter of 2017.
Measures
“In future, the German NCP will raise awareness of the OECD Guidelines, promote compliance with them and raise the profile of the NCP and of its special role as an effective extrajudicial grievance mechanism in implementing the UN Guiding Principles on Business and Human Rights. It is being reorganised and further strengthened. To this end a new organisational entity will be created within the Federal Ministry for Economic Affairs and Energy. In addition, the number of staff in the NCP will be increased.”
II. Initial priorities for the Business and Human Rights Implementation Group [page 19]
“xiv. Introduce a standing agenda item to explore international best practice and principles governing the development of operational level grievance mechanisms for individuals and communities who may be adversely impacted to make it possible for grievances to be addressed early and remediated directly.
Annex 1 – List of additional and ongoing actions to be carried out across Government
Domestic Framework [page 20]
“3. Facilitate mediation where appropriate in the OECD National Contact Point grievance procedures for cases arising under the OECD Multinational Guidelines following the publication of national procedures to give effect to the Guidelines.”
Section 2: Current legislative and Regulatory Framework
Data Protection [page 14]
“Owing to the significant number of multinational tech companies based in Ireland, Ireland’s data Protection Commissioner has responsibility for oversight of a large amount of data and has been involved in some high profile cases.”
As far as Non-judicial remedies are concerned, an important role is played by the specific instances offered by the Italian National Contact Point. As requested by the OECD Guidelines, the OECD NCP manages the “specific instances” through a non-judicial mechanism where the NCP offers good offices when a stakeholder considers that a multinational enterprise has adopted behaviour not compliant with the principles and recommendation set out in the Guidelines.
Italy also supports respect for human rights within the UNEP rights-based approach to environmental protection and sustainable development. Italy has implemented Principle 10 of Rio 1992 ratifying the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.
An Italian non-judicial grievance mechanism is the Bank and Financial Arbitrator (ABF) created in 2009 and active since 2010 through its Panels in Milan, Rome and Naples (panels are likely to be established soon in other major towns). In the course of its mandate the ABF has extended the concept of ‘customers’ to cover individuals affected by the action of an intermediary even if the parties were not bound by contract. ABF expanded its functions to deal also with pre-contractual obligations in order to protect individuals claiming that intermediaries violated the obligations of good faith – which bind the parties to adopt fair behaviour while negotiating.
Planned Measures
[page 28]
The inclusion of business-related human rights abuses in a special section among the competence of the National Human Rights Independent Institution to be established;
Improve the visibility and the knowledge of interested parties about the existence of the NCP’s “specific instances” procedures;
Assess, in line with the G7 “Action for Fair Production” commitments, the performance of the Italian NCP and lead by example, by carrying out an OECD Peer Review of the NCP and hosting peer learning activities;
Continue ensuring effective implementation of the Aarhus Convention;
The launch, also through the diplomatic and consular network and with the involvement of Italian Chambers of Commerce abroad, of an awareness raising campaign on non-judicial grievance mechanisms;
Liaise and support the many Ombudsmen active at national and local level to raise their awareness to protect individuals against human rights abuses by business;
The extension of the original mandate of the Financial Bank Arbitrator to include human rights-related claims of financial nature (such as mortgage and lending discrimination).
Guiding Principle 31
[page 29]
… Italy yet acknowledges the need of developing appropriate non-state based grievance mechanisms and to this purpose the Government will encourage civil society organizations, trade unions and business associations to set up and activate grievance mechanisms (such as online network and tools, corporate mechanisms, or multi-stakeholders instruments) to enable the formulation, reception, and evaluation of claims for alleged human rights abuses and the proposals of adequate remedies.
Remedial procedures (judicial and non-judicial remedies) have been established to address human rights violations in business activities. The Government intends to continue to assure access to judicial remedies and make improvements where necessary. It also utilizes multiple efforts regarding non-judicial remedies, including consulting services based on specific laws and regulations (e.g., workers, persons with disabilities, and consumers) as well as remedial procedures. These include the Japan Bank for International Cooperation (JBIC) Guidelines for Confirmation of Environmental and Social Considerations, the Japan International Cooperation Agency (JICA) Guidelines for Environmental and Social Considerations, the Nippon Export and Investment Insurance (NEXI) Guidelines on Environmental and Social Considerations in Trade Insurance, and the Japanese National Contact Point (NCP) under the OECD Guidelines for Multinational Enterprises (the Japanese NCP). The Government intends to secure access to these nonjudicial remedies and make improvements where necessary.
2. Areas of the NAP
(4) Measures regarding Access to Remedy
Judicial and Non-Judicial Remedy
（ Existing framework/Measures taken）
Non-judicial remedies such as the following have been established: consulting services based on individual legislation (e.g., workers, persons with disabilities, consumers); remedial procedures such as Objection Procedures Based on JBIC (Japan Bank for International Cooperation) Guidelines for Confirmation of Environmental and Social Considerations, JICA (Japan International Cooperation Agency) Objection Procedures Based on Guidelines for Environmental and Social Considerations, and NEXI (Nippon Export and Investment Insurance) Objection Procedures on Guidelines on Environmental and Social Considerations in Trade Insurance; and the Japanese NCP under the OECD Guidelines for Multinational Enterprises based on the international framework. In addition, pursuant to the Act on Promotion of Use of Alternative Dispute Resolution (Act No.151 of 2004) private dispute resolution procedure services (mediation conducted by private enterprises) are certified. This Act prescribes special rules such as suspension of prescription and discontinuation of litigation proceedings that can be applied subject to certain requirements when using the aforementioned services, thereby improving their utility. Furthermore, human rights consulting services and relief procedures are being offered at Legal Affairs Bureaus and District Legal Affairs Bureaus.
As measures based on specific legislation, frameworks have been established in specific areas, including for workers and persons with disabilities.
Consultations involving consumer complaints and mediation for the settlement of consumer complaints are also being provided under the Consumer Safety Act (Act No. 50 of 2009).
(Future measures planned)
(…)
(c）Publicize activities and improve operation of the Japanese NCP under the OECD Guidelines for Multinational Enterprises
Enhance and facilitate cooperation among the three ministries in charge in accordance with the OECD Guidelines for Multinational Enterprises and perform appropriate functions as the Japanese NCP. In particular, make procedures more transparent, while securing fairness and impartiality, and continue public relations activities. In so doing, pay attention to the perspectives of gender and respect for human rights in supply chains. Cooperate with the Japanese NCP Committee comprising the Government, labour, and management, and seek advice from experts where necessary. [Ministry of Foreign Affairs, Ministry of Health, Labour and Welfare, Ministry of Economy, Trade and Industry]
(d) Continue human rights counseling (Human Rights Hotline and other relevant counseling sessions, including telephone counseling)
Provide human rights counseling in ten foreign languages by Human Rights Counseling Centers for Foreigners. Dedicated hotlines have also been established for protecting the human rights of women and children. [Ministry of Justice]
(…)
(g) Promote use of alternative dispute resolution procedures
As a contribution to the improvement of access to remedy related to issues and human rights abuse by business activities, provide support such as disseminating information to promote the use of certified dispute resolution procedures under the Act on Promotion of Use of Alternative Dispute Resolution [Ministry of Justice] and other initiatives provided by various stakeholders [All Ministries]
(h) Continue the provision of grievance redress services in development cooperation and development financing
To ensure compliance with the Guidelines for Environmental and Social Considerations, JICA (Japan International Cooperation Agency) has established and continues to provide a system where affected residents can file objections to non-compliance with the guidelines. In case an objection is filed, Examiners for the Guidelines, who are independent of departments responsible for specific projects, will investigate the facts concerning compliance/non-compliance, encourage dialogues between the parties concerned for resolution of disputes, report the results directly to the President of JICA, and disclose the result on JICA’s website. [Ministry of Foreign Affairs]
To ensure compliance with the Guidelines for Confirmation of Environmental and Social Considerations, JBIC (Japan Bank for International Cooperation) has established and continues to provide a procedure for raising objections to non-compliance with the guidelines. The request to raise objections can be submitted by the country’s residents to be affected by the project, and an Examiner for Environmental Guidelines as an organ independent of departments responsible for lending or investment operations will make a determination, with the result to be disclosed publicly. [Ministry of Finance]
JICA (Japan International Cooperation Agency) and JBIC (Japan Bank for International Cooperation) are to continue enhancing effectiveness through through operational improvement. [Ministry of Foreign Affairs, Ministry of Finance]
4) To offer a roadmap of strengthening access to State-based judicial and non-judicial remedies for victims of business-related harm.
CHAPTER TWO: THEMATIC AREAS OF FOCUS
2.6 Labour [Pages 13-14]
During the stakeholders’ consultations the following concerns were identified:
6) Lack of effective remedies for victims of labour-related grievances resulting in high prevalence of unresolved labour-related grievances. A weak enforcement mechanism, in particular inadequate number of state labour inspectors and the lack of effective operational level grievance mechanisms were also cited as contributing factors.
2.7 Access to Remedy [Page 15]
Despite […] legal protections, the community consultations conducted as part of the NAP process revealed structural and procedural barriers to access to remedy, including:
iv. There have been instances where human rights defenders who have lodged cases against businesses, especially land and environment grievances, have reportedly faced death threats and other forms of intimidation which they hardly report to authorities. Such hostility may instil fear in others who may wish to lodge complaints, robbing communities and individuals of the protection that the law could have offered against business-related abuses; and
v. The capacity of the administrative tribunals to offer non-judicial remedies is often limited by lack of personnel to conduct proper outreach outside of urban centres and the technical capacity to understand emerging and complex issues.
Most businesses have a relatively low understanding of their human rights responsibilities resulting in lack of engagement with employees, local communities and other stakeholders on how to ensure that they respect human rights and provide a remedy for violations. Business associations stated that they lack proper guidance on establishing credible operational-level grievance handling mechanisms.
CHAPTER THREE: POLICY ACTIONS
[T]he third part relates to Pillar 3 of the UNGPs and contains policy actions to strengthen access to state-based judicial and non-judicial remedies on the one part and thenon-state-based [sic.] grievance handling mechanisms on the other.
3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 18-19]
Pillar 2 of the UNGPs states that businesses should respect human rights wherever they are operating. This is achieved by ensuring that they avoid abusing others’ rights and where harm has already occurred, taking steps to remedy the harm.
Policy Actions
e) Cooperation on access to remedies: Require businesses to cooperate with government agencies and other stakeholders in facilitating remedies for business[1]related human rights violations. This includes actively participating in policy discussions on access to remedy and adopting policies that enhance access to remedy.
3.3 Pillar 3: Access to Remedy [Pages 19-20]
Access to an effective remedy guarantees victims of business-related human rights abuse with predictable avenues for complaints, adjudication of their grievances, an opportunity for the other party to present its case and a fair remedy based on the merits of the case. Additionally, it ensures that remedies are relevant and proportionate to the abuses, including orders to cease ongoing abuses. According to the UNGPs, State-based judicial and non-judicial mechanisms should be the primary avenue for accessing remedies by victims of corporate abuses. However, victims should also have access to operational-level grievance handling mechanisms established by businesses, where workers, local communities and civil society advocates acting on behalf of individuals and communities negatively impacted by businesses may lodge their complaints and receive a just outcome such as compensation, guarantee of non-repetition by the offender, apology, restitution and rehabilitation.
A) State-based judicial and non-judicial remedies [Pages 20-21]
Policy Actions
The Government will:
ii. In line with Article 159 of the Constitution, promote the use of Alternative Dispute Resolution mechanisms in dealing with disputes between businesses and those allegedly harmed by their operations;
iv. Improving access to information on available judicial and non-judicial mechanisms involved in the resolution of business-related abuses as a measure of promoting access to justice. Such information should be made available in all counties and provided in a manner accessible to vulnerable groups;
vii. Increase the capacity of the labour inspection department to handle labour-related grievances, including through:
Increasing the number of labour inspectors to monitor and enforce compliance with labour standards by businesses, with particular attention to the implementation of mandatory policies to prevent and address sexual harassment [sic.] and violence, payment of minimum wages, equal pay for work of equal value, prohibition of child labour and non-discrimination against women, marginalised groups and minority groups; and,
Taking measures to guarantee the independence of labour inspectors and to ensure that their duties are undertaken with integrity and in a transparent and accountable manner.
B) Non-State-Based Grievance Mechanisms[Page 21]
Independent of the State’s obligation to ensure access to remedy, businesses should administer grievance handling mechanisms either alone as operational-level grievance mechanisms, or in conjunction with stakeholders or industry associations as part of any industry-wide grievance mechanisms. This is meant to ensure speedy, physically and financially accessible remediation of human rights complaints.
Policy Actions
The Government will:
1. Develop and disseminate guidance for businesses on the establishment of credible operational-level grievance mechanisms that are consistent with international standards. Such grievance mechanisms should be responsive to the needs and rights of vulnerable groups such as women, persons with disabilities, children and indigenous persons;
2. Sensitise businesses and those impacted by their activities on the benefits of establishing and utilising credible operational-level grievance mechanisms;
3. Assist community-based organisations working on human rights issues to build their technical capacity to effectively monitor human rights impacts of businesses and advocate for individuals and communities to enforce their right to a remedy for human rights violations..
CHAPTER FOUR: IMPLEMENTATION AND MONITORING
ANNEX 1: SUMMARY OF POLICY ACTIONS [Pages 25-26]
Strategic Objective
Policy Actions
Key Actors
Strategic Objective 3:
Enhance access to justice for victims of business-related human rights abuses
Promote the use of Alternative Dispute Resolution mechanisms in dealing with disputes between businesses and those harmed by their operations.
Judiciary, NCAJ, NCIA, Administrative Tribunals
Improving access to information on available judicial and non-judicial mechanisms involved in the resolution of business-related abuses as a measure to promote access to justice.
Judiciary, CAJ, KNCHR, KAM, KEPSA, Kenya Chamber of Commerce
Develop and disseminate guidelines for businesses on the establishment of credible operational-level grievance mechanisms that are consistent with international standards.
KAM, KEPSA, Global Compact, KNCHR, OAG& DOJ, KLRC
Sensitise businesses and those impacted by their activities on the benefits of establishing and utilising credible operational grievance mechanisms.
Objective 3: ensuring access to effective remedy [page 10]
A. Implemented measures
5. “Improvement of collective dispute regulation. The aims is to held discussions with social partners to determine the need for revision of provisions regulating collective bargaining and to encourage parties to establish a mechanism for settling disputes at company level.”
B. Planned measures
3. “Development of peaceful and extrajudicial/ consumer dispute resolution. The aim is to establish a more effective procedure for extrajudicial resolution of disputes, to increase the participation of social partners (consumer associations and business organisations) in the system of alternative dispute resolution and to encourage self-regulation institutions to become members of tile consumer rights protection system.”
4. “Promotion of business self-regulation. The aim is to encourage the creation of a code of conduct as well as cooperation with the subjects responsible for codes of conduct and other business entities that have taken on commitments according to the existing codes of conduct. At present there are 10 codes of business ethics.”
Part II: Specific objectives of the National Action Plan 2020-2022
(…)
3. The need to define remedies for victims of human rights abuses
3.1. Mapping of judicial and non-judicial, public and private remedies for human rights violations
Context
This includes, among other things and beyond judicial remedies, taking stock of non-judicial public and corporate remedies, strengthening OECD-NCP relations with civil society and providing appropriate training on available remedies to corporate human rights focal points.
Objectively verifiable indicators
× Benchmark: NAP 1, National Baseline Assessment (NBA) [Etude de base]
Verification sources
– Laws and regulations
– Recommended practices
– Exchanges with the NCP
– Identification of good practices and possible gaps
Expected results
× Increasing the number and adapting to the needs of the remedies
× Information on the remedies available
× Discussion on the usefulness of class actions for the implementation of the Guidelines, especially in view of the provisions of the Coalition Agreement in this context
Implementation timeline
Duration of NAP 2
Means of implementation
– MAEE (Ministry of Foreign and European Affairs)
– Ministry of Justice
– Public and private mediation bodies
– Business and Human Rights Working Group
The 2020-22 NAP states the second edition of the National Action Plan complements the first NAP. Additional information about the first NAP can be found here.
“The consultations showed that the government has a major role to play in creating scope for remedy to implement the 3rd pillar of the Ruggie Framework, and providing information on the matter. Suggestions varied from providing more information on existing access to remedy through the embassies, to promoting complaint mechanisms at company level and encouraging dialogue between companies and communities under the leadership of an impartial mediator or facilitator. The ACCESS Facility was mentioned as an initiative that could receive support as part of the action plan.
In his commentary on the 3rd Pillar of the Principles, Professor Ruggie points out that grievance mechanisms may take various forms, but their aim will always be to counteract or make good any abuses. Remedy may include apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions, as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition. The term grievance mechanism is used to indicate any routinised, State-based or non-State-based, judicial or non-judicial process through which grievances concerning business-related human rights abuse can be raised and remedy can be sought.
ACCESS Facility
The ACCESS Facility was set up in December 2012 with a view to knowledge building and improving access to effective dispute settlement between companies and communities either in or out of court. ACCESS supports and facilitates local dispute settlement mechanisms, since it is convinced that local solutions are the most effective and sustainable, and that companies and other interested parties will only use dialogue and mediation if they have confidence in both the design and function of the relevant mechanisms. Since the government believes that the ACCESS Facility clearly provides added value, it has awarded start-up funding under the Human Rights Fund.
Non-judicial mechanisms
“In the Guiding Principles, Professor Ruggie points out that non-judicial mechanisms can contribute to faster, potentially more effective and more direct remedy for victims. They are therefore an important addition to judicial proceedings, which are often time-consuming and costly.
The National Contact Point (NCP) supports companies in putting the OECD Guidelines into practice. Where there is a difference of opinion between companies and other stakeholders on the application of the Guidelines, any party may submit a complaint to the NCP. Should the complaint be deemed admissible, the NCP may attempt to act as an impartial mediator between the parties reporting the abuse and the company in question. The NCP may be regarded as an overarching external remedy mechanism, since it is accessible to all stakeholders and is based on impartial mediation. At the end of a procedure, the NCP issues a final statement in which it describes the process and the relationship between the solution and the OECD Guidelines. Parties may reach agreement that remedy (including compensation) should be offered by the company. The NCP also issues a final statement in cases where parties fail to reach a solution. In that event, the NCP not only describes the process but also issues recommendations on the alleged breach of the OECD Guidelines, on the basis of its understanding of the facts. The purpose of these recommendations is to prevent future disputes. The NCP procedure is non-judicial. Its final statement is not an administrative law decision and there is therefore no scope for appeal.
At the request of the House of Representatives, a study was conducted into strengthening the functioning of the NCP. The Dutch NCP was compared with the NCPs in the UK, Norway and Denmark, and interviews were held with representatives of companies, trade unions and civil society organisations and government representatives involved in the work of the NCP. Specifically, the study examined whether the NCP should be authorised to carry out investigations into possible breaches of the OECD Guidelines by Dutch companies on its own volition, thus not only in response to complaints.
The people interviewed were reasonably satisfied with the functioning of the NCP. The way in which the NCPs are organised reflects each country’s specific social and economic structure. For example, the Dutch decision not to opt for civil servants, but for independent members with a firm base in society differs from the British model in which a Steering Board oversees the work of the NCP, whose members are civil servants.
There is no essential difference between the nature of the statements the various NCPs may issue in response to complaints. The Danish NCP is the only NCP entitled to carry out investigations on its own volition into the involvement of companies in abuses in international supply chains. No criteria have been laid down for starting an investigation. When asked, the Danish NCP was unable to say on what grounds it would take the initiative to launch an investigation. To date, no such investigation has been launched.
The government is not in favour of the Dutch NCP having similar, unconditional powers to carry out investigations. The people interviewed also expressed little support for this idea. The Dutch NCP may carry out additional investigations in response to complaints. If the NCP were entitled to carry out its own investigations, the business community would ultimately lose confidence in its impartiality. Moreover, if an issue were to be investigated on the NCP’s own volition, thus not in response to a complaint by an interested party, there would be no official ‘other party’ for the mediation procedure with the company in question.
It should be noted here that, in practice, the Dutch NCP already facilitates dialogue on CSR at the request of civil society organisations and/or companies, and thus not in response to a formal complaint submitted in accordance with the OECD Guidelines. The aim of those requesting facilitation is to bring about improvements, sometimes with a view to forestalling submission of an official complaint to the NCP.
Proactive investigation of possible risks in the Dutch business community’s supply chains now takes place by means of Sector Risk Analyses, as described above. Voluntary CSR agreements will be concluded with a number of sectors on the basis of these analyses. In their letter requesting advice on how effective CSR agreements can be concluded with business sectors, the Minister for Foreign Trade and Development Cooperation and the Minister of Economic Affairs asked the SER to devote explicit attention to the role the NCP could play as facilitator or dispute settlement mechanism.
In very serious situations, where a recommendation by the NCP is needed to support the social dialogue, the government will acquire scope to ask the NCP to carry out a sector-wide investigation into CSR issues. To promote a level playing field, the results will be brought to the attention of all countries that adhere to the OECD Guidelines in the OECD working group on CSR. Given the NCP’s limited capacity and the fact that the Sector Risk Analyses already ensure systematic identification of risks in Dutch sectors, such an investigation would probably be needed no more than once a year. The conditions under which the NCP may be requested to carry out these investigations will be specified in the amendments to the decree establishing the NCP, which will be submitted to the House of Representatives in the summer of 2014.
The study referred to above into the functioning of the NCP will lead to a number of other amendments to this decree. The preferred option is for the decree to put the consultations that the NCP regularly holds with civil society organisations, employers’ organisations and trade unions onto a formal footing, and indicate the issues on which the NCP should, in any event, consult its stakeholders. The Minister for Foreign Trade and Development Cooperation will submit a proposal on this subject, with explanatory notes, to the House of Representatives before the summer of 2014.
In 2014, the Netherlands will organise a conference on judicial and non-judicial grievance mechanisms, together with the ACCESS Facility.
Project on improving the accessibility and effectiveness of non-judicial grievance mechanisms
“Through the Human Rights Fund, the Netherlands is supporting SOMO’s Grievance Mechanisms and Human Rights Programme. The programme, which runs from 2012 to 2015, aims to improve the accessibility and effectiveness of non-judicial grievance mechanisms, such as the NCP and complaint procedures at company level. In September a training session was held in Jakarta for civil society organisations and trade union representatives, with the aim of equipping them more adequately with the knowledge and skills needed for these mechanisms. SOMO is also lobbying in a number of sector initiatives for stronger internal complaint mechanisms.”
Companies’ complaint mechanisms
“When a company establishes that it is the cause of or contributes to a human rights abuse, it is expected to rectify the situation and/or provide compensation. Complaint procedures at company level could prove to be an effective means to this end. The procedure should be in line with the OECD Guidelines, and based on dialogue and commitment to seeking an acceptable solution. Complainants should still have access to other judicial or non-judicial complaint procedures, including the NCP’s and the standard court system.”
The 27th principle concerns public non-judicial grievance mechanisms:
27. States should provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse.
Norway has a number of well-functioning institutions such as the Labour Inspection Authority, the Ombudsman for Children, the Consumer Ombudsman, the Equality and Anti-discrimination Ombudsman, the Norwegian Environment Agency and the Parliamentary Ombudsman for the Public Administration. There are also complaints mechanisms in connection with the rights of employees, children, women and men. For example, on the basis of the Environmental Information Act, the Appeals Board for Environmental Information handles appeals concerning rejected requests from private and public agencies for access to environmental information. The National Contact Point provides information on the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles. The Contact Point also deals with individual cases independently of the government. In line with the Guidelines, the parties to cases that come before the Contact Point are expected to participate in good faith during the procedure.
The criteria are designed to ensure that those for whom the mechanism is intended are aware of it, have confidence in it and are in a position to use it. Companies that establish grievance mechanisms should familiarise themselves with the criteria and seek to satisfy them. The OECD National Contact Point Norway follows these criteria.
Mediation in civil-, economic-, and individual labour-law [page 41]:
The National Labour Inspectorate is an authority established in order to oversee and verify the observance of labour law, in particular occupational health and safety rules and regulations. During the implementation of its tasks, the National Labour Inspectorate cooperates with trade unions, employers’ organisations, workers’ self-government authorities, workers’ councils, social labour inspections, and public employment services in the meaning of the provisions on the promotion of employment and labour market institutions and state administration authorities, particularly authorities for overseeing and inspecting working conditions, the Police, the Border Guard, customs authorities, revenue offices, and the Social Insurance Institution, as well as local self-government authorities.
…
4. OECD National Contact Point [page 49-50, 53]
This includes details on the complaints procedure where an individual feels that there has been non-observance of the OECD Guidelines.
The National Contact Point can, through mediation and the conciliation procedure, help businesses and stakeholders to resolve issues concerning violations of the OECD Guidelines for Multinational Enterprises. (pg. 40)
Principal 27 – Alternative settlement of legal disputes
All Slovenian courts (local, district, labour, higher, and higher labour and social courts) enable alternative settlements of legal disputes, or more precisely, mediation. The alternative settlement of disputes does not involve a trial, but one or several neutral third parties facilitate the settlement of a dispute. (pg. 40)
Principle 31 – Nonjudicial Mechanisms
The State grants access to judicial mechanisms and is developing new non-judicial mechanisms to facilitate access to effective appeal mechanisms related to violations of human rights in business. (pg. 42)
Enhance the Effectiveness of Grievance Settlement-Relief Process
1. Relieve damage of humidifier disinfectants and prevent recurrence [page 6]
Actively push ahead the relief efforts according to ｢Special Act on Remedy for Damage Caused by Humidifier Disinfectants｣(’17. 8. 9.)
– Expand the approval of damaged disease by government through setting ‘Remedy for Damage Committee’ and ‘Remedy Account Management Committee’.
– Support making an extra remedy account to aid victims who were excluded from government aid (125 billion won), actively find more victims, make the best use of emergency medical support system, and expand monitoring on victim’s health.
– Conduct psychological counseling for victims and the bereaved (conduct online and face-to-face counseling to mentally ill patients with anger, sense of guilt, etc.).
…
3. Enhance the effectiveness of government-based remedy
Benchmark advanced countries who have operated NCPs for a long time through the OECD peer review process.
Improve the operation of NCP.
– Diversify the composition of organization to make possible for neutral and professional personnel to participate
– Share best practices of foreign objection to enhance the effectiveness of guidelines
– Expand the participation of the persons concerned including NGOs, employer’s federation, etc.
Strengthen consistent promotion on the NCP system including its functions.
Educate Korean companies overseas on human rights.
“The Government will establish networks among Spanish companies or that the ones that operate in Spain for the promotion of: measures, procedures or internal systems that can effectively contribute to the prevention and/or mitigation of the negative consequences of business activities on human rights; as well as for the dissemination of good practices aimed to avoid these consequences, or to influence their avoidance, reduction or remedy. The establishment of procedures for internal assessment and determination of action will be promoted in a manner that avoids other negative consequences on human rights.”
Measure 8
“The Monitoring Commission will design and submit to the Government the adoption of an incentive system that includes both large companies and Small and Medium Enterprises (SMEs) that carry out policies in the field of human rights. These incentives may be economic, commercial, visibility and image, or other nature, to encourage companies to have policies and reliably certify that they have implemented adequate procedures at a global level according to their size and circumstances, namely:
A public commitment to assume its responsibility to respect human rights in accordance with the provisions of the Principle no. 16;
A process of due diligence aligned with the sectorial guides regarding the OECD (due diligence guidance), and based on the dialogue with stakeholders that allows identification, prevention, mitigation, and accountability of how they address the impact of their own activities and those that are directly related to their business relationships in accordance with the provisions of Principles no. 17 to no. 21;
Some processes that allow to remedy all the negative consequences on human rights that have caused or contributed to provoke according to what is established in Principles no. 22, no.29, no. 30, no. 31.”
Guiding Principle 7
Measure 5
“The Government will participate in multilateral efforts aimed at improving the prevention, mitigation and remedy of situations in which companies are involved in serious human rights abuse.”
Guiding Principle 25
Measure 2
“The Government will collaborate with civil society organizations in the distribution of existing redress mechanisms available to victims of human rights abuses caused by the activity of companies.”
Guiding Principle 26
Measure 3
The Government will develop and provide the necessary instruments so that every citizen can have access to comprehensible information about all of the grievance mechanisms that they can use. Therefore, a map of the existing resources in terms of legal assistance will be made and publicized.
Guiding Principle 27
Among the existing extrajudicial grievance mechanisms, it is worth mentioning the Spanish National Contact Point of the OECD Guidelines for multinational companies.
Furthermore, the Labor and Social Security Inspectorate of the Ministry of Employment and Social Security can provide arbitration, conciliation and mediation services for parties affected by labor disputes, when the parties agree to this process.
In relation to human rights abuses caused by companies, if there is, or might be, a presumed irregular action by the Public Administration, any citizen can go to the Ombudsman and demand their intervention.
Measure 1
“The Monitoring Commission will carry out a study on the current regulatory body, the mechanisms of extrajudicial claim for the receipt of complaints and mediation along the existing parties and the possible needs expressed by them. Within one year from the approval of this Plan, and based on the recommendations derived from the aforementioned study, recommendations may be made on the extension of existing extrajudicial mechanisms or on the creation of new ones in accordance with the criteria established in Principle No. 31.”
Guiding Principle 28
Measure 1
“The Government will promote the development of practical guides and compile good practices on the establishment of grievance mechanisms managed by companies themselves that respect the criteria identified in Guiding Principle 31.”
Guiding Principle 30
Measure 1
“The Government will support the development of effective mechanisms for access to remedy in the collaborative mechanisms it participates in in accordance with the criteria identified in Guiding Principle 31.”
Measure 2
“The Government will publish the recommendations that are appropriate for the companies to establish or participate in the effective operational level grievance mechanisms available to the individuals affected by their negative consequences.”
“According to the UN Guiding Principles, States have an obligation to provide effective remedies when a company has committed human rights abuses. These include both judicial and non-judicial mechanisms. …
The different ombudsmen monitor compliance with human rights. Any person who feels that they or anyone else has been treated incorrectly or unfairly by a public authority or official at a central or local government authority can lodge a complaint with the Parliamentary Ombudsmen, also known as the Ombudsmen for Justice. …
The Office of the Equality Ombudsman is a government agency responsible for monitoring compliance with the Discrimination Act. The Ombudsman is to try in the first instance to induce those to whom the Act applies to comply with it voluntarily. However, the Ombudsman may also bring a court action on behalf of an individual who consents to this. Those who violate the Discrimination Act may be found liable to pay compensation for discrimination to the person discriminated against …
Furthermore, the OECD Guidelines for Multinational Enterprises provide access to remedy through the National Contact Points (NCP). … The NCP’s main task is to promote corporate compliance with the Guidelines and to help resolve problems in individual cases through dialogue and discussion.”
Companies’ own redress mechanisms
“According to the UN Guiding Principles, companies are responsible for ensuring that their operations do not infringe on human rights and, if a company has caused or contributed to adverse impacts, that it seeks to provide redress to the victim. Such redress may include apologies, financial or nonfinancial compensation or other redress agreed by the victim and the company. The situation is more complex if the company has not contributed to adverse impacts but the impacts are directly linked to its operations. In such cases, and if the company has leverage to prevent or mitigate the adverse impacts, it should exercise it.
No ready-made model exists for how a company should best organise its own grievance redress mechanism. It is for each company to assess what is appropriate on the basis of its specific circumstances. Some criteria include:
Transparency – enables a dialogue with those affected by the company’s actions
Negotiations and discussions with employee representatives – often provide a good foundation for effective measures in cases concerning employees
Processes for internal whistleblowers, for follow-up on whistleblowing concerns and protection of whistleblowers
Secure and anonymous systems for handling complaints involving people outside the company who feel that they, or others, have been or will be adversely affected by the company
To provide redress means to correct a mistake, in this context, regarding adverse impacts on someone’s human rights. It is often easier to redress adverse impacts if there are effective grievance mechanisms in the company that the victim can use so that a dialogue can be established.”
2 National Action Plan on Business and Human Rights 2020-23
2.1 Pillar 1: state duty to protect
2.1.2 Operational principles: legislative and information policy measures
Guiding Principles 1 to 3
Measure 2: Security and human rights
Switzerland also helped to establish the International Code of Conduct Association, which requires private security providers to uphold human rights standards. The ICoC Association has a grievance procedure to address claims brought by employees or third parties regarding human rights abuses by companies. It has also produced guidance for private security providers on setting up complaints-handling schemes within their organisation, as well as guidelines on preventing sexual exploitation and abuse.
2.1.5 Policy coherence
Guiding Principle 8
Measure 17: National human rights institution
With the Swiss Competence Centre for Human Rights (SCMR), a successful pilot project for a national human rights institution (NHRI) has been running since 2011. A core topic of the SCMR is human rights and business.
This pilot project will be replaced by a permanent, legally established institution. The Federal Council approved the corresponding bill on 13 December 2019, parliamentary consultation will begin in 2020. The NHRI will strengthen the protection and promotion of human rights in Switzerland. Its independence enables it to cooperate with authorities at all levels of government, but also with non-governmental organisations, the private sector, research and international organisations and to support their human rights activities. Its tasks include information and documentation, research, consultancy, human rights education and awareness-raising, promotion of dialogue and cooperation, and international exchange. In addition to domestic human rights issues, its mandate also includes questions relating to the implementation of international human rights obligations in Switzerland.
Objective
Indicator
Responsibility
Support the establishment of an NHRI that deals with, among other things, business and human rights.
Mandates and activities of the NHRI in the business and human rights field.
FDFA [Federal Department of Foreign Affairs]
Guiding Principle 10
Measure 21: Support for UN bodies in charge of promoting the UN Guiding Principles
The federal government will continue to lend political and financial support to the UN Working Group, the Office of the UN High Commissioner for Human Rights and the annual UN Forum on Business and Human Rights in Geneva. It will work with these bodies on several projects that:
– improve access to remediation mechanisms for those affected by business-related human rights abuses.
Measure 22: Commitments by Switzerland to the UN Guiding Principles at multilateral level
Switzerland actively contributed to the drafting of the Recommendation 42 on business and human rights adopted by the Committee of Ministers of the Council of Europe on 2 March 2016. In implementing the NAP, Switzerland is implementing the Committee of Ministers Recommendation. It also supports Council of Europe efforts to improve access to remedy for those affected by human rights abuses, as well as to its online business and human rights platform.
2.3 Pillar 3: access to remedy
Many business enterprises have introduced mechanisms that enable their employees and/or business partners to share their concerns about possible human rights abuses and bring claims. Dealing with such claims internally, for example through mediation, often produces satisfactory outcomes for all affected parties. When a constructive solution cannot be found, the State must provide non-judicial and judicial mechanisms which give those affected by human rights abuses access to effective remedy.
2.3.1 Foundational principle
Guiding Principle 25
The Federal Council recognises the need to provide access to remedy for those affected by human rights abuses committed on Swiss territory and/or under Swiss jurisdiction. It believes the principal means of doing this is via the well-functioning Swiss judicial system, along with alternative, non-judicial dispute resolution mechanisms.
The Federal Council also acknowledges its responsibility to facilitate access to Swiss grievance mechanisms where business enterprises based in Switzerland are involved in human rights abuses abroad, and those affected in the host state have no appropriate access to effective remedy. In such instances, due consideration must be given to a smart mix of judicial and non-judicial mechanisms.
Measure 31: Promoting the option of collective redress
The Federal Council intends to make selective amendments to the Civil Procedure Code (CPC) to improve its applicability. These will focus on removing obstacles to legal redress such as fees and the risks associated with legal costs, strengthening collective redress mechanisms and simplifying the coordination of procedures.
In the process of revising the CPC, the federal government drafted amendments to the provisions governing costs with a view to extending the scope of the conciliation procedure. New rules on group actions and establishing a group settlement mechanism will close a gap in the available legal protection by facilitating class actions in respect of mass and dispersed damage claims. These amendments and new articles bring the draft bill in line with Business and Human Rights Recommendations 39 and 42 of the Committee of Ministers of the Council of Europe of 2 March 2016. They also meet the expectations of the UN, as expressed in Guiding Principle 26.
Objective
Indicator
Responsibility
Facilitated class actions.
Selected amendments to the CPC.
FDJP [Federal Department of Justice and Police]
2.3.3 Operational principles: state non-judicial grievance mechanisms
Guiding Principle 27
State non-judicial grievance frameworks can be an important factor in ensuring access to remedy for business-related human rights abuses. They often enable the parties to resolve differences through dialogue, therefore avoiding lengthy and costly court proceedings.
Measure 33: Visibility of non-judicial grievance mechanisms
Switzerland already has several state and non-state non-judicial grievance mechanisms in place, such as the National Contact Point for the OECD Guidelines for Multinational Enterprises and ombudsman services. However, the role they play and the work they carry out are not well known. The Federal Council wishes to increase the visibility of non-judicial individual and collective redress mechanisms. Measures will include the provision of information resources and other tools developed as part of the NAP (website: www.nap-bhr.admin.ch; brochures etc.), as well as activities to promote these mechanisms.
Objective
Indicator
Responsibility
Raise the visibility of non-judicial grievance mechanisms.
Provision of information on non-judicial grievance mechanisms in Switzerland.
EAER [Federal Department of Economic Affairs, Education and Research]
Measure 34: National Contact Point for the OECD Guidelines for Multinational Enterprises
The OECD Guidelines for Multinational Enterprises include a chapter on human rights. The 48 signatories to the OECD guidelines are required to set up a non-judicial grievance mechanism in the form of a National Contact Point (NCP) to receive and handle complaints regarding the application of the OECD Guidelines. They also serve as an important non-judicial grievance mechanism for business-related human rights abuses.
Measure 5 of the 2020–23 CSR Action Plan deals with the NCP in detail. As well as providing a mediation platform, the NCP should clearly position itself as a point of contact for the prevention of problems in connection with responsible business conduct (e.g. by having a social media presence and participating in stakeholder events).
Objective
Indicator
Responsibility
Strengthen the position of the NCP as a point of contact for the prevention of problems in connection with responsible business conduct.
Evaluation of NCP activities (source: NCP annual report to the OECD and annual report of the NCP Advisory Board).
EAER [Federal Department of Economic Affairs, Education and Research]
Swiss business enterprises, especially those with considerable exposure to human rights risks, should have in place appropriate grievance mechanisms to facilitate access to remedy for those affected by abuses. To ensure their effectiveness, these mechanisms must be legitimate, accessible, predictable, fair, transparent and in compliance with Swiss law and constitute a source of learning for all stakeholders. The Federal Council considers the promotion of grievance mechanisms through multi-stakeholder initiatives as an important means of guaranteeing access to remedy.
Measure 35 Grievance mechanisms as part of multi-stakeholder initiatives
The UN Guiding Principles underline the importance of multi-stakeholder initiatives and processes led by business associations which are designed to facilitate access to remedy. The judicial authorities and professional legal practitioner associations are not currently represented in such initiatives. In order to improve access to remedy as stipulated in the UN Guiding Principles, the federal government will explore the option of involving these groups in multi-stakeholder initiatives in the field of business and human rights. This could take the form of dialogue within existing multi-stakeholder initiatives. Participants would include representatives from industry, public law enforcement bodies and NGOs, and other key actors such as lawyers and mediators.
Objective
Indicator
Responsibility
Involve legal actors in multi-stakeholder initiatives on business and human rights with a view to improving access to remedy in keeping with the UN Guiding Principles.
Participation of representatives from the legal community in a multi-stakeholder initiative meeting on ways to improve access to remedy.
FDFA [Federal Department of Foreign Affairs],
EAER [Federal Department of Economic Affairs, Education and Research],
IV. The corporate responsibility to respect human rights
B. Actions taken
Greater information transparency (page 13)
‘At the same time, the Taiwan government has also provided businesses with the tools and guidance needed to implement their CSR policies, and has continually conducted outreach activities to encourage businesses to: […] establish internal grievance channels.’
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, The state duty to protect, UNGP3, Actions taken (page 42).
C. Actions planned
Continue encouraging businesses to adopt and implement human rights policies
The Taiwanese government ‘will encourage companies to establish internal remedy systems so that disputes can be resolved through in-house complaint mechanisms. This would reduce the volume of litigation filed with the courts.’
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, Access to remedy, UNGP28, Actions planned (page 58).
V. Access to remedy
B. Actions taken
Non-judicial remedy (pages 18-19)
‘The Taiwan government encourages members of the public to make use of alternative dispute resolution (ADR) schemes (e.g. grievance, conciliation, mediation, and arbitration procedures that are provided to the public by courts, government agencies, and private groups) to achieve the earliest possible resolution of disputes involving many different matters, including medical treatment, labor-management issues, gender equality, and consumer protection.
Pre-mediation proceedings
In the field of labor-related disputes, for example, in order to provide alternative dispute resolution schemes, the “Act for Settlement of Labor-Management Disputes” establishes mediation, arbitration, and administrative decision mechanisms. Also, the “Code of Civil Procedure” and the “Labor Incident Act” both provide for a compulsory conciliation system so that cases will, in principle, have to first go through conciliation proceedings, and then proceed to judicial proceedings only after conciliation fails to yield a resolution.
Bringing alternative dispute resolution (ADR) resources into play
The Taiwan government has also launched a Search Platform for Alternative Dispute Resolution Mechanisms to provide stronger links between public and private ADR mechanisms. The Search Platform to sets out information on various ADR mechanisms, categorizing its listings on the basis of type of institution, type of dispute, name of organization, location of organization, etc. Anyone can use the ADR Search Platform to quickly find an ADR body to handle a dispute resolution process.
Grievance system for employment discrimination
The labor competent authorities in local governments throughout Taiwan have already established employment discrimination grievance channels to deal with instances of employment discrimination involving gender, age, and disability. Accordingly, employees or job seekers who discover law-breaking behavior on the part of an employer can file a grievance via any of the aforementioned channels.’
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, Access to remedy, UNGP27, Actions taken (pages 57-58) and UNGP28, Actions taken (page 58).
3. The core content of the National Action Plan on Business and Human Rights
3.1 Action plan on labour
3.1.3 Action Plan (2019–2022)
Pillar 2: Responsibilities of the business sector in respecting of human rights
2.4 Complaint and remedy mechanisms
State enterprises and the business sector should provide internal channels for complaint/petition mechanisms and keeping it as confidential information. Many channels should be opened and must have a convenient and fast access for tracking, such as on the website and via application on mobile phones, etc.
State enterprises and the business sector should hold discussions to mediate disputes to achieve resolutions between workers before bringing the case to justice by giving the opportunity for workers to participate in negotiations.
State enterprises and the business sector should agree on measures to remedy damage to workers in the event that workers’ human rights are violated. The remedies should cover physical and mental damage.
State enterprises and the business sector should specify measures and mechanisms to support and solve issues around firing workers, including compensation for termination of employment in accordance with the relevant laws.
Pillar 3: Duties of the state and the business sector to provide remedy (Remedy)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
1.
Complaints and petitions
Establish a complaint system (both public and private) and develop staff competency in order to receive complaints effectively and keep the information confidentially. Open multiple channels that are convenient, fast and traceable for the result of the complaint by using technology, such as hotline services, website channels and mobile phone applications, etc.
– Office of the Attorney General
– Ministry of Interior
– Ministry of Justice
– Ministry of Public Health
– Ministry of Labour
– Ministry of Foreign Affairs (Department of Consular Affairs)
2019–2022
An easy, accessible complaint system for the complainant.
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 11
– UNGPs Articles 27, 28, 29 and 31
Increase the efficiency of the mechanism to receive complaints under the Gender Equality Act 2015
– Ministry of Social Development and Human Security
2019–2022
Assigned officials according to the Act in every province
– National Strategy for Social Cohesion and Just Society
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 11
– UNGPs Articles 27, 28, 29 and 31
Review and improve the complaint mechanism in order to access existing protection and remedies, such as a claim filing mechanism so that every worker can access protection and remedy without discrimination and regardless of nationality
– Ministry of Labour
2019–2022
Number of channels of complaint improved
– National Strategy for Social Cohesion and Just Society
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 10
– UNGPs Articles 27, 28, 29 and 31
The complaint mechanism of government agencies should be evaluated for efficiency and the adjusted working method periodically for enabling migrant workers to access conveniently and efficiently
– Ministry of the Interior
– Ministry of Justice
– Ministry of Labour
2019–2022
Number of evaluations
– National Strategy for Social Cohesion and Just Society
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 10
– UNGPs Articles 27, 28, 29 and 31
The complaint mechanism of government agencies should be evaluated for efficiency and the adjusted working method periodically for enabling migrant workers to access conveniently and efficiently
– Ministry of the Interior
– Ministry of Justice
– Ministry of Labour
2019–2022
Number of evaluations
– National Strategy for Social Cohesion and Just Society
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 10
– UNGPs Articles 27, 28, 29 and 31
2.
Access to the Employee Welfare Fund
Employees have the right to access the Employee Welfare Fund as regulated in the Labour Protection Act 1998 and the set criteria
– Ministry of Labour
2019–2022
Number of employees using the service from the Fund
– National Strategy for Human Capital Development and Strengthening
– SDG 8
– UNGPs Articles 25, 26, 27, 28, 29 and 31
Study the possibility of establishing a fund to remedy victims of discrimination or sexual harassment in the workplace
– Ministry of Social Development and Human Security
2019–2022
– Study results
– Number of victims that the Commission of the Act identified and wish to receive remedies
– National Strategy for Social Cohesion and Just Society
– SDG 5 and 8
– UNGPs Articles 25, 26, 27, 28, 29 and 31
4.
Dispute settlement and resolution
Enhance the capacity of staff in resolving labour disputes efficiently
– Ministry of Labour (The Bureau of Labour Relations)
2019–2022
Number of personnel resolving disputes trained to strengthen knowledge and develop technical skills in conciliation
– National Strategy for Public Sector Rebalancing and Development
– SDG 8
– UNGPs Articles 25, 26, 27, 28, 29 and 31
5.
Remedies
Review and revise the Compensation Act 1994 and modernize the Compensation Fund system to be transparent, fair and in line with international principles
– Ministry of Labour
2019–2022
Amount of benefits or criteria that have been reviewed or improved
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 10
– UNGPs Articles 27, 28, 29 and 31
Set up remedy mechanisms from both the government and private sectors at the regional level. Remedies should be in consistent with the needs of affected people and communities.
– Ministry of the Interior (Department of Local Administration)
– Ministry of Justice
2019–2022
Mechanisms and remedy measures for adversely affected victims and victims of human rights violations as a result of business operations
– Strategy for Public Sector Rebalancing and Development
– SDG 8 and 16
– UNGPs Articles 25, 26, 27, 28, 29 and
31
Review criteria of compensation under the Act on Compensation for Injured Persons and the Damages and Expenses for the Accused in Criminal Cases B.E. 2544 (2001) and the Amendment (No. 2) B.E. 2559 (2016) to cover migrant workers that have been victims of crime.
– Ministry of Justice
2019–2022
Meetings to review payment criteria for state compensation under the Act on Compensation
for Injured Persons and the Damages and
Expenses for the Accused in Criminal Cases B.E.
2544 (2001) and the Amendment (No. 2) B.E. 2559 (2016) to cover migrant workers that have been victims of crime
– National Strategy for Public Sector Rebalancing and Development
– SDG 16
– UNGPs Articles 25, 26, 27, 28, 29 and 31
6.
Protecting the rights of Thai workers working abroad
Provide information and assistance in accessibility to mechanisms protecting the rights of Thai workers working abroad
– Ministry of Foreign Affairs
– Ministry of Labour
2019–2022
– Percentage of job seekers trained before traveling abroad with more knowledge about domestic rights in their destinations
– The Department of Consular Affairs, Embassies and Consulates-General of Thailand provide information about their rights continuously through documents, websites, phone lines, applications, etc.
– Thai workers abroad get access to rights protection mechanisms including help in negotiating with employers or government agencies of that country in case of unfair treatment or rights violations
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 17
– UNGPs Articles 1, 8,
25, 26, 27, 28, 29 and 31
3.2 Action plan for community, land, natural resources and the environment
3.2.3 Action Plan (2019–2022)
Pillar 2: Responsibilities of the business sector in respecting of human rights
2.4 Complaint and remedy mechanisms
State enterprises and the business sector should provide a variety of complaint channels that can be forwarded to the other departments, including measures to protect complainants.
State enterprises and the business sector should resolve disputes with the community by negotiating and discussing with the communities affected before bringing the case to justice, including coordinating with related agencies in the area to help mediate the dispute resolution.
State enterprises and the business sector should identify measures to remedy people and communities affected by human rights abuses resulting from business operations.
Pillar 3: Duties of the state and the business sector to provide remedy (Remedy)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
1.
Complaints
Set channels for complaints and petition in the case of witnessing or being affected from the business operation and inform the public, for example, establishing local complaints receipt mechanism
– Ministry of the Interior
– Ministry of Justice
– Office of the Attorney General (Office of Prosecutors Protection Rights)
2019–2022
Government, state enterprises and businesses set
up a channel to receive complaints and petitions from persons impacted by business operations; and inform the public
– National Strategy for Public Sector Rebalancing and Development
– SDG 11 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
2.
Mediation
Determining policies or making laws to authorize local agencies to initially solve problems, or have a local committee being recognized from all parties, with local mediation power
– Ministry of the Interior
– Ministry of Justice
2019–2022
A mediation committee is established at the local and/or community level
– National Strategy for Public Sector Rebalancing and Development
– SDG 11 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
Consider the establishment of rights protection centres in areas of conflict
– Ministry of Justice
2019–2022
Set up a working group or centre to manage the violation of rights
in areas of conflict
– National Strategy for Public Sector Rebalancing and Development
– SDG 11 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
4.
Financial aid
Consider the establishment of a Land Bank managed by the community to help affected people
– The Land Bank Administration (Public Organization)
2019–2022
A study of guidelines for establishing Land Banks to provide help to those affected
– National Strategy for Eco-Friendly Development and Growth
– SDG 11 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
Study the guidelines for establishing a Hedge Fund for people who suffer from business operations
– Ministry of Natural Resources and Environment
– Ministry of Industry
2019–2022
Studied guidelines for establishing
a Hedge Fund for people who suffered from business operations
– National Strategy for Eco-Friendly Development and Growth
– SDG 11 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
5.
Remedies
Develop systematic measures to effectively remedy the affected persons from managing natural resources or conducting business that violates land rights, natural resources and the environment, covering physical and mental damage and in line with the needs of affected people and communities from business/government projects
– Ministry of Natural Resources and the Environment
– Ministry of the Interior
– Ministry of Justice
– Ministry of Industry
2019–2022
Government sectors, state enterprises, and businesses have measures to remedy the
affected persons from managing natural resources or conducting business that violates land rights, natural resources and the environment
– National Strategy for Eco-Friendly Development and Growth
– SDG 11 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
Establish a systematically plan for land restoration, natural resources and the environment in places affected by business operations
– Ministry of Natural Resources and Environment
– Ministry of Interior
2019–2022
Government, state enterprises and businesses with systematically plans for land restoration, natural resources and the environment in places affected by business
– National Strategy for Eco-Friendly Development and Growth
– SDG 11, 13, 14, 15 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
3.3 Action plan for human rights defenders
3.3.3 Action Plan (2019–2023)
Pillar 2: Responsibilities of the business sector in respecting human rights (Respect)
The expectations will be the starting point and state enterprises as well as businesses of all sizes are encouraged to use them as a guideline, which is an important factor to reduce the adverse human rights impact of business operations.
2.4 Complaint and remedy mechanism
State enterprises and the business sector should have a mechanism to consult with human rights defenders in order to deal with the violation of human rights.
State enterprises and the business sector should provide clear channels and designated coordinators for complaints.
State enterprises and the business sector should settle disputes with human rights defenders by fully negotiating and mediating disputes before bringing the case to justice which may involve coordination with relevant agencies in the area to help mediation to settle the disputes.
State enterprises and the business sector should avoid litigation to prosecute human rights defenders simply because they are performing their duty to claim and protect the rights of others.
Pillar 3 Duties of state enterprises and the business sector (Remedy)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
1.
Complaints/ petition for assistance
Establish a mechanism for petition and effective, appropriate and sufficient assistance to resolve violations of human rights that may arise from conducting business
– Ministry of Justice
– Ministry of the Interior
– Ministry of Commerce
– Ministry of Industry
2019–2022
A mechanism for petition and effective appropriate and sufficient assistance to resolve violations of human rights that may arise from conducting business
– National Strategy for Public Sector Rebalancing and Development
– SDG 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
2.
Promotion of mediation systems
Promoting a mediation system at every level of the justice process, including the development of alternative dispute resolution mechanisms
– Office of the Attorney General
– Ministry of Justice
– Office of Court of Justice
2019–2022
Activities/projects/ measures organized to promote mediation at every level of the justice process, including developed alternative dispute resolution mechanisms
– National Strategy for Public Sector Rebalancing and Development
– SDG 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
3.4 Action Plan on Cross Border Investment and Multinational Enterprises
3.4.1 Overview of the situation
The National Human Rights Commission of Thailand has received complaints regarding the impact of cross-border business operations of Thai entrepreneurs, such as a Thai private company that was granted a land concession for sugarcane cultivation and established a sugar factory in Cambodia and violated the human rights of the Cambodian people. The National Human Rights Commission of Thailand has investigated and has ruled that though the company is not the action maker, the impact is considered a part of their direct responsibility in the case of affecting human rights. In the case that a private company has entered into a Memorandum of Agreement with the Port Authority of the Union of Myanmar to operate a deep-sea port project in the Dawei Special Economic Zone Project in Myanmar, the National Human Rights Commission has investigated and found that the construction of infrastructure of the project caused human rights violation to the Myanmar people. The National Human Rights Commission of Thailand has recommendations for relevant government agencies to consider establishing mechanisms or defining the Investment Supervision to respect the basic principles of human rights by using The UNGPs as a framework.
3.4 Action Plan on Cross Border Investment and Multinational Enterprises
3.4.3 Action Plan (2019–2022)
Pillar 1: State duties in protecting (Protect)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
1.
Complaint mechanism
Collaborating with other countries to establish an international mechanism to receive complaints and to inspect and conduct business investigations that affect communities
– Ministry of Foreign Affairs
2019–2022
Discussions with countries to establish an international mechanism to receive complaints and to inspect and conduct business investigations that affect communities
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
2.
Negotiation and mediation
Consider establishing the process of discussion and negotiation to solve international problems which are a result of business operations
– Ministry of Foreign Affairs
2019–2022
The process discussion and negotiation to solve international problems which are a result of business operations
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
3.
Financial assistance and remedies
Consider the possibility of establishing a fund to help in a timely manner for the healing and rehabilitation of victims in relation to impacts on careers, way of life, society, culture, health, environment and natural resources
– Ministry of Natural Resources and Environment
2019–2022
Meeting convened to consider the establishment of a fund for the healing and rehabilitation of victims in relation to impacts on careers, way of life, society, culture, health, environment and natural resources
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
Pillar 2: Responsibilities of the business sector in respecting of human rights
2.3 Complaint and remedy mechanism
State enterprises and the business sector should have a channel or mechanism to receive complaints about human rights violations resulting from business operations and coordinate to forward the relevant information to the related department.
State enterprises and the business sector operating in Thailand and Thai entrepreneurs investing in foreign countries should resolve disputes with the community by negotiation and discussion with the affected communities to give full compensation for damages before bringing the case into the judicial system. They should coordinate with relevant local agencies in the area to help in mediating disputes.
State enterprises and the business sector operating in Thailand and Thai entrepreneurs investing in foreign countries should have a measure to give remedy to the people and communities where human rights have been abused or negatively impacted resulting from business operations.
In addition to the judicial mechanisms, victims can also seek quasi-judicial mechanisms for remedy. There are other tribunals such as Uganda Human Rights Commission (UHRC) Tribunal and the Equal Opportunities Commission (EOC) Tribunal.
The aforementioned legal protection notwithstanding, stakeholder consultations revealed that the complex nature of court procedures, along with social, economic and political factors, present barriers in accessing remedy. Some of the challenges in accessing effective remedies include: access to court, inadequate number of judicial officers, high cost of litigation, long distance to court, delayed payment of awards, limited enforcement of judicial decisions and inadequate internal grievance redress mechanisms. For instance, a case filed in 2013 regarding persons who were internally displaced due to the establishment of a sugar factory was not concluded by June 2019. The delay in dispensing justice puts the affected persons at a risk of loss of livelihoods, food insecurity, and lack of access to basic services like health care, safe and clean water and education for the children among others.
It is therefore important to improve the process of acquiring land and other assets for business operations, improve the method of relocating communities and provide access to remedy for the victims of violations and abuses of human rights.
CHAPTER FOUR: STRATEGIES AND INTERVENTIONSSTRATEGIES
OBJECTIVE 1: To strengthen institutional capacity, operations and coordination efforts of state and non-state actors for the protection and promotion of human rights in businesses.
4.1.2 Capacity building for state and non-state actors on business and human rights
i. Strengthen the technical capacity of judicial and non-judicial agencies on business and human-rights related issues.
OBJECTIVE 4: To promote social inclusion and rights of the vulnerable and marginalized individuals and groups in business operations.
(…)
4.4.2 Engagement of business operators on human rights
(…)
iii. Ensure the establishment and strengthening of gender and equity-responsive internal grievance redress mechanisms in business operations.
OBJECTIVE 5: To enhance access to remedy to victims of business-related human rights abuses and violations in business operations.
4.5.1 Strengthen access to remedy mechanisms against business-related human rights abuses and violations
Awareness raising on workers’ rights and available remedy mechanisms for business-related human rights abuses and violations.
Provision of government-supported legal aid services to workers, especially vulnerable groups including women, persons with disabilities, persons living with HIV and AIDS and minorities.
Strengthening the capacity of judicial and quasi-judicial institutions to provide remedy to business-related human rights abuses and violations.
Strengthening laws and policies providing for effective, inclusive and gender-responsive remedies on business-related matters.
Increasing human and financial resources to support the monitoring and inspection of business operations.
Strengthening avenues available for remedy to business-related human rights violations and abuses.
Enhancing inter-sector and inter-agency coordination in handling complaints of victims of business-related human rights abuses and violations.
Strengthening linkages and referrals for human rights violations and abuses in business operations.
4.5.2 Improve access to legal services to communities affected by business-related human rights violations and abuses
Build capacity of lawyers, human rights defenders, judicial officers, communities and other stakeholders on access to remedy for human rights abuses and violations related to business operations.
Provide free legal aid services to communities affected by business-related human rights abuses and violations.
Strengthen linkages and referrals for human rights violations and abuses.
Promote alternative dispute resolution mechanisms.
Promote the use of regional and international remedy mechanisms for violations and abuses related to business.
CHAPTER FIVE: INSTITUTIONAL FRAMEWORK
(…)
5.3 Uganda Human Rights Commission
(…)
x. Receive, investigate and adjudicate cases of human rights violations in business operations.
5.6 Ministry of Justice and Constitutional Affairs
(…)
iv. Coordinate the formulation and review of legislation pertaining to business and human rights.
v. Promote access to justice for victims of human rights violations in business operations.
vi. Innovate solutions to quicken conclusion of court cases.
5.16 The communities and households
The community and households will;
ii. Strengthen social support networks and mechanisms to protect and promote the welfare of vulnerable groups.
The strategic implementation framework in the 1.0 Appendices includes:
Strategic Action, Objective 4.0: Empower communities to demand for protection and fulfilment of their rights and access to justice.
Objective 5.0 – To enhance access to remedy to victims of business-related human rights abuses and violations in business operations.
Budgeted outputs in Annex I include:
Strengthen the technical capacity of judicial and non-judicial agencies on business and human-rights related issues. (Objective 1.0)
Review and strengthen the capacity and function the probation and labour department to handle labour-related grievances (Objective 1.0)
Establishing and/ or strengthening laws, policies and grievance redress mechanisms to ensure accountability by businesses (Objective 2.0)
Awareness raising on available remedy mechanisms for business-related human rights abuses and violations. (Objective 5.0)
Strengthen laws and policies providing for effective remedies on business-related matters (Objective 5.0)
Build capacity of lawyers, human rights defenders and judicial officers on access to remedy for business and human rights. (Objective 5.0)
Provide free legal services to communities affected by business-related human rights abuses and violations. (Objetive 5.0)
The UK 2013 NAP notes in the chapter on UK Government and access to remedy for human right abuses resulting from business activity that [page 17]:
“The UK sees its own provision of judicial remedy options as an important element in the remedy mix. Non-judicial grievance mechanisms based on engagement between the parties involved are also an important option. This can be done through an internal company grievance procedure or through arbitration, adjudication, mediation, conciliation and negotiation. Such services can be advised on or offered by independent dispute resolution companies, the Ombudsman, the Citizens’ Advice Bureau, the Government regulator in certain sectors, or the Advisory, Conciliation and Arbitration Service (ACAS).
Finally, the UK National Contact Point (NCP) considers allegations of non compliance by UK companies with the OECD Guidelines for Multinational Enterprises. The NCP will seek to mediate an agreement between the parties. But where this is not possible, a determination of whether the enterprise has acted inconsistently with the Guidelines is published and available for public dissemination. http://www.bis.gov.uk/nationalcontactpoint”
The UK 2016 Updated NAP discusses non-judicial mechanism in the section titled Access to remedy for human rights abuses resulting from business activity[page 20]:
“We also provide a number of state-based non-judicial mechanisms, including:
The UK National Contact Point (NCP) which considers allegations of non-compliance by UK companies with the OECD Guidelines for Multinational Enterprises. The NCP seeks to mediate an agreement between the parties. But where this is not possible, a determination of whether the enterprise has acted inconsistently with the Guidelines is published and available for public dissemination.
Equality and Human Rights Commission which monitors and promotes human rights compliance and can conduct inquiries, for example it has conducted inquiries into the meat and poultry processing and home care sectors.
A considerable number of Ombudsman, Regulators and other Government Complaints Offices in industry sectors that have various mechanisms to hear complaints, impose sanctions and award compensation. For example the Health and Safety Executive, Financial Conduct Authority, Financial Ombudsman Service and Advertising Standards Authority.
The Groceries Code Adjudicator is an independent adjudicator that oversees the relationship between supermarkets and their suppliers. It ensures that large supermarkets treat their direct suppliers lawfully and fairly, investigates complaints and arbitrates in disputes.
In addition, there are independent organizations that support non-judicial grievance mechanisms in the UK. This includes internal company grievance procedures and arbitration, adjudication, mediation, conciliation and negotiation. Such services can be advised on or offered by independent dispute resolution companies, the Citizens’ Advice Bureau and the Advisory, Conciliation and Arbitration Service (ACAS).”
The UK 2016 Updated NAP on actions taken to promote access to remedy states that the Government [page 21] has:
“commissioned an independent survey of the UK provision of remedy to help our understanding of judicial and non-judicial remedies available to victims of human rights harms involving business enterprises”.
The UK 2016 Updated NAP states under Government commitments [page 22] that the government will:
“continue to ensure that the UK provides access to judicial and non-judicial remedies to victims of human rights harms linked to business activity. We will keep the UK provision of remedy under review.”
“As to remedies in the United States, the U.S. government will continue to help provide access to a grievance mechanism and the potential for remedy through its active USNCP for the OECD’s Specific Instance process and through the World Bank’s Stolen Asset Recovery Initiative.”
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