Non-judicial grievance mechanisms

Action point 1

Develop a toolkit for companies and organizations on human rights

Elaborer une boîte à outils destinée aux entreprises et organisations concernant les droits de l’Homme

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

Elaborer une brochure sur les mécanismes de réparation liés à l’autorité publique

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).

Action point 16

Promote social reporting, including human rights

Promouvoir les rapports sociétaux, droits de l’Homme inclus

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.

Read more about Belgium

Pillar 1: The State Duty to Protect Human Rights

Strand 2: Dialogue

Action point 2.4 (pages 34-35)

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.

Pillar 3: Access to Redress Mechanisms

Strand 2: State-Based Non-Judicial Mechanisms (pages 59-62)

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.

Read more about Chile

II. CHALLENGES

(…)

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.

Read more about Colombia

Pillar III [page 41-43]

“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.”

Read more about Czechia

2. The state duty to protect human rights

2.3 Actions taken

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 1^st, 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.

Read more about Denmark

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.”

Read more about Finland

III- Access to Remedy

2. Non-Judicial Mechanisms – At the International Level

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

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

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

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

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

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

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

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

Actions Underway [page 55]

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

Actions to be Implemented [page 56]

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

2.2 ILO Enforcement Mechanisms [page 56]

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

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

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

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

Actions to be Implemented

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

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

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

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

This communication mechanism is intended to:

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

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

2.4 The European Social Charter [page 57]

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

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

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

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

At the National Level

2.5 The Defender of Rights [page 58]

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

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

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

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

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

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

2.6 Grievance Mechanisms in Companies [pages 58-59]

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

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

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

In practice, grievance mechanisms in companies are generally:

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

Actions to be Implemented

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

Existing tools:

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

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There is no mention of non-judicial grievance mechanisms in the Business and Human Rights Chapter of the Georgian Human Rights NAP.

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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.”

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Section 3: Actions

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.”

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IV. Italian ongoing activities and future commitments

Internationalization of companies

“The creation of remedial mechanisms – in terms of operational frameworks and procedures – to ensure access to justice for victims of human rights violations, as a result of the implementation of productive activities by companies, is one of the core goals of the UN ‘Accountability and Remedy’ project.

Italy has participated in this project, reporting the introduction of legislative measures aimed at this purpose and at facilitating even corporate structures for the introduction of remedial mechanisms-models, referring to multiple legal disciplines (contracts, competition, arbitration, labour law, consumer law, environmental law, privacy, nondiscrimination and legislative measures for equality, protection of freedom of information and protection of whistle-blowers).

Within the Italian framework, several non-judicial mechanisms coexist, placed within the institutional framework or functionally connected to it, with a divergent mandate and impact from the decision-making point of view. These are placed side by side to the judicial system and are characterized by structural and operational features that are easier and more accessible as well as less expensive and faster, while granting independence and effectiveness.” (p. 56)

ANNEX 1 – Accountability Grid and Assessment Tools for the Implementation of the NAP

“21. Reaffirm as a priority the elimination of all forms of exploitation of child labour in Italy and with reference to the economic activities of Italian companies abroad, as provided for by the relevant ILO Conventions; to this end, encourage the dissemination among companies of initiatives aimed at increasing attention on impacts of business activities on children’s rights and on the need for the inclusion of adequate remedies and mitigation measures as per the risk of violation of such rights. The inclusion of children’s rights in business practices includes: the provision of “family friendly policies” designed to support workers in their role as parents/caregivers (smart working, paid parental leave, social protection and adequate wages for all); the introduction of measures to monitor the presence of minors in the workplace; the adoption of Child Safeguarding Policies/Codes of Conduct to foresee, report and take charge of potential risk situations for minors who come into contact with the company; the provision of security guarantees for digital environment (data protection, access to age-appropriate content, privacy protection).” (p. 64)

“In line with operational instruments already described in the first NAP, and which are still in force, provide for the following actions concerning non-judicial mechanisms for denouncing human rights violations by companies:

55. The introduction of the issue of human rights violations by companies in the mandate of the Independent National Commission on Human Rights;” (p. 68)

“57. The launch, also through the diplomatic and consular network and with the involvement of the Italian Chambers of Commerce abroad, of awareness campaigns on non-judicial complaint mechanisms, in collaboration with the Ministry of Foreign Affairs and International Cooperation;” (p. 69)

“59. With reference to the ADR (Alternative Dispute Resolution) model, raise awareness of it through training for citizens and professionals.” (p. 69)

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Chapter 2. Action Plan

1. Fundamental Principles of the NAP

(…)

• 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]

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CHAPTER ONE: INTRODUCTION Objectives of the NAP [page 11] The objectives of this NAP are: 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. KAM, KEPSA, Global Compact, KNCHR, OAG& DOJ,

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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.”

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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.

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Pillar III

Access to effective remedy

“The UNGPs stipulate that a state’s obligation to protect against human rights abuses by companies includes the duty to take appropriate judicial, administrative, legislative or other steps to ensure that when such abuses occur within their territory or jurisdiction those affected have access to effective remedy. Remedy can include offering apologies, rehabilitation, compensation or sanctions as well guarantees of non-repetition of the abuse.

Among states’ obligations is an obligation to publicise information about existing mechanisms, including information on how they work and the support available to access them. The UNGPs state that a mechanism is a routinised, state-based or non-state-based, judicial or non-judicial process through which a grievance or complaint concerning business-related human rights abuse can be raised and remedy can be sought. The UNGPs distinguish between state-based mechanisms (judicial or non-judicial) and non-state-based mechanisms.

The National Baseline Assessment (NBA) concluded that several improvements are possible in terms of access to remedy. Aside from commissioning a study into the calibre of Dutch law in the light of the UNGPs, the previous NAP did not specifically deal with the right to effective remedy. The action points below therefore largely reflect the analysis (the NBA) carried out by the Netherlands Institute for Human Rights. Earlier policy evaluations were also taken into account and information was gathered during consultations about the options available for improving access to remedy in the Netherlands.

 Improved and more effective access to remedy requires an ecosystem of remedy, meaning that affected parties must have access to a variety of channels for various forms of remedy. The instruments should run in tandem, as not all violations require the same remedy. For example, legal recourse is probably the best way to deal with serious human rights violations, whereas a complaints mechanism may provide quicker and better remedy for less severe violations of labour rights. The proposed due diligence legislation will strengthen this ecosystem, creating a stronger legal basis on which to call European businesses to account regarding any violations. The due diligence legislation will also require businesses to comply with step 6: setting up a complaints mechanism. These efforts to strengthen both state-based and non-state-based mechanisms will lead to the creation of an ecosystem for remedy for affected parties.” p. 62.

Improving the provision of information to affected parties

“Ideally, human rights abuses, including violations of labour rights, should be addressed where they take place and effective remedy is offered locally. Yet in some circumstances a mechanism in the Netherlands may be the best recourse, for example if there is no effective local mechanism or if a Dutch enterprise is involved in the violation. However, victims and their representatives may not always have a clear picture of the possibilities for remedy in the Netherlands. Consultations with civil society organisations on the revision of the NAP made it clear, for example, that affected parties were not always aware of the possibility of accessing regular legal aid in cases of international liability. The government will produce an accessible digital guide describing the judicial and non-judicial remedies available to parties abroad who have been affected by Dutch companies (through their international supply chains). This guide will clearly describe the possibilities for initiating a judicial or non-judicial process and what support, such as legal aid, is available. The guide can follow Germany’s example.58 In response to consultations, the guide will where possible take account of the additional hurdles faced by marginalised groups and unequal power relationships. This will include a gender perspective.” p. 63.

ACTION POINTS PILLAR 3	Aim	Responsible party	Timeline
Improving information provision to affected parties
Develop and actively disseminate an accessible digital guide for rightsholders in several languages	Improve information on the options for access to remedy in the Netherlands.	BZ	From 2022-2023

p.64

Improving the provision of information to businesses

“Over the past few years, the government has contributed in several ways to improving the provision of information to businesses about access to remedy. The launch of the www.startmetoesorichtlijnen.nl website is an example of how businesses are informed about their responsibility to provide remedy within their due diligence processes. Likewise, government has in recent years worked closely with businesses and civil society organisations on RBC agreements. With its responsibility to inform, the Dutch National Contact Point (NCP) for the OECD Guidelines has also contributed to these efforts. A number of RBC agreements have further elaborated on access to remedy.

The Dutch Banking Sector Agreement, for example, has investigated the role of financial institutions in offering remedy, and the Sustainable Clothing and Textile Agreement has set up an independent joint complaints mechanism. At the same time many companies are still struggling with the question of how exactly to offer remedy for possible human rights violations deeper in their value chains. It is not always clear how to deal with this, especially, for example, if the business in the Netherlands is just one of the buyers of a product or raw material.’’ p. 65.

ACTION POINTS PILLAR I	Aim	Responsible party	Timeline
Improving information provision to business on remedy
Include access to remedy in the information offered by the RBC support office (see Pillar 2)	Collect and make available information on access to remedy	BZ	From September 2022
Support the WBA	Provide details of the progress made by multinational enterprises in a number of high-risk sectors on access to remedy.	BZ	2022-2026

p. 66

Strengthening complaints and dispute mechanisms

‘’The NBA concluded that dispute settlement (including the results of dispute settlement) and remedy organized by businesses themselves still receive little attention….A complaints and dispute mechanism as described in the UNGPs should, however, also be accessible to all actually or potentially injured parties outside the company….To this end the government will continue in the years ahead to encourage the establishment of complaint and dispute mechanisms as an element of access to remedy.’’ p. 67.

Access to remedy in sector-wide cooperation

‘’Establishing a collective complaints mechanism may be one form of collaboration. See Pillar 2 for more details of sector-wide cooperation. As stipulated by the UNGPs and the OECD Guidelines, businesses have an individual responsibility to establish a functioning complaints and disputes mechanism and it is the responsibility of the supervisory authority to call individual businesses to account where necessary. Businesses may find it logical to work with other companies on this obligation, as sector-wide collaboration agreements can help participating businesses set up complaints mechanisms and make them accessible.’’ p. 67.

ACTION POINTS PILLAR III	Aim	Responsible party	Timeline
Strengthening Complaints and Dispute Mechanisms
Strive in EU negotiations for incorporation into legislation of all six steps in the OECD Guidelines.	Include access to remedy (step 6 of due diligence) as an integral part of EU due diligence legislation.	All ministries involved, with BZ taking the initiative.	From 2022

Strengthening non-judicial state mechanisms

National Contact Point for OECD Guidelines (NCP)

“National Contact Point for OECD Guidelines (NCP) All countries adhering to the OECD Guidelines for Multinational Enterprises are required to set up a National Contact Point (NCP). This is already an important non-judicial state-based mechanism for remedy in the Netherlands. The Dutch NCP’s main tasks are to:

• improve businesses’ awareness and implementation of the OECD Guidelines;

• handle issues raised by individuals, civil society organisations and businesses in disputes related to the implementation of the OECD Guidelines;

• carry out cross-company studies at the government’s request.

The Ministry of Foreign Affairs’ Policy and Operations Evaluation Department (IOB) commissioned an evaluation of the NCP’s performance in 2019. The evaluation made recommendations and led to an increase in the NCP’s capacity. Compared to other NCPs internationally, the Dutch NCP is often seen as performing well. Yet consultations for this NAP indicated that stakeholders feel that participation and follow-up of recommendations could be better.

After approximately one year, the NCP is now publishing an evaluation of the implementation of recommendations made in their final statements. The consultations concluded that implementation of NCP recommendations is sometimes too limited once a process has been concluded. There is also a clear tendency by businesses not to accept the NCP’s offer of mediation after a complaint has been received. Both of these are problems for effective remedy. The government values a well-functioning NCP as one of the state-based mechanisms for access to remedy. It is therefore important to continue to reinforce the NCP and its recommendations. One way of doing this is to give the NCP’s work more weight in trade instruments. A company’s attitude to a possible NCP notification is already taken into account when considering its participation in trade missions. A balanced expansion of this practice to other instruments will encourage cooperation of business in an NCP process.” p. 70.

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he Nigeria NAP provides a list of existing constitutional obligations, domestic legislation, internation obligations, and police and administrative steps. This breakdown only looks at the list of challenges and the implementation of the 3 pillars of the UNGPs.

8.6 CHALLENGES
…
“l. Lack of effective, transparent, sustainable grievance mechanisms for businesses to address conflicts with communities including documenting and reporting of activities of settlement.” (p.155)

PILLAR 1 – STATE DUTY TO PROTECT HUMAN RIGHTS
ACTIONABLE ITEMS
A. ESTABLISHMENT OF A NATIONAL WORKING GROUP ON BUSINESS AND HUMAN RIGHTS (NWGBHR)
“The Working Group will have the following responsibilities, among others;
…
vi. Periodically assess and support the establishment of grievance mechanisms in companies.”

M. CAPACITY BUILDING
“The following capacity building needs have been identified:
…
c. Regulatory agencies should be strengthened to enable them monitor and evaluate the implementation of NAPBHR and also provide remedies when violations occur” (p.160)

PILLAR 3 – ACCES TO REMEDY
“Access to remedy for communities or persons who are victims of adverse impact of business operations can be through the following framework;
i. State-Based Judicial Mechanism
ii. State-Based Non-Judicial Mechanis [sic]
iii. Non-State-Based Grievance

Access to remedy includes legal, administrative, judicial and non-judical [sic] remedy.

B. STATE-BASED NON-JUDICIAL MECHANISM
These consist of State Agencies which though non judicial, exercise statutory powers and regulatory functions pertaining to Business and Human Rights. They have the potential of addressing the greatest number of human rights violations by businesses because they exercise statutory powers and regulatory functions.
They include the following:
i. National Human Rights Commission (NHRC)
ii. Public Complaints Commission (PCC)
iii. National Oil Spill Detection and Response Agency (NOSDRA)
iv. Consumer Protection Council (CPC)
v. Nigerian Communications Commission (NCC)
vi. National Administration of Food and Drug Control (NAFDAC)
vii. National Bio-Safety Management Agency
viii. National Environmental Standard and Regulatory Enforcement Agency (NESREA)
ix. Standards Organisation of Nigeria (SON)
x. Central Bank of Nigeria (CBN)
xi. Corporate Affairs Commission (CAC)
xii. Nigerian National Petroleum Corporation (NNPC)
xiii. Department of Petroleum Resources (DPR)

In order to improve the effectiveness of State Based non-judicial mechanism, the following plan of action will be implemented:

1. Capacity-building for these agencies to enable them appreciate the human rights component of their mandate and enhance their ability to offer remedy pursuant to their statutory functions
2. Strengthening of the Institute for Peace and Conflict Resolution (IPCR) through capacity building and close partnership to enable the organization to work more effectively with communities, state and businesses to resolve conflicts efficiently.
3. Strengthening of the National Human Rights Commission to discharge its quasi-judicial responsibilities in addressing human rights violations by businesses; and rendering of effective remedy.
4. Convening of periodic meeting of regulatory bodies whose functions are relevant.
5. Mapping of these bodies to clearly identify them and properly delineate their mandates so that their operations may be streamlined for speed and efficiency in relation to business and human rights related remedy.
6. Scale up of Community Sensitization on the functions of various agencies.
7. Collation of reports and feedback on progress made by State Based non- judicial mechanism.” (p.164-165)
   C. NON-STATE BASED GRIEVANCE MECHANISM
   “The law cannot take care of all the complexities of the relationship between the community, the state and corporations. This therefore necessitates the adoption of some non-state-based grievance mechanism to fill the gap. These include all the centres and agencies established by companies, NGOs, Media, CSOs, Labour Unions, Faith-Based Orgsanisations, communities and other sundry agencies. Some of them are formal and some are informal in their operations. Some specialize in advisory services and the provision of information, while others are mainly concerned with referral and monitoring.” (p.165)

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4. Access to Remedy [pages 40-41]:

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.

…

Section 4.3 Criteria for ensuring effective non-judicial grievance mechanisms [page 42]:

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.

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CHAPTER 2: Protect, Respect, Remedy Framework

Pillar III: Access to Remedy (page 14)

‘[…] quasi-judicial bodies exist to regulate competition in business, unfair labour practices and industrial disputes. These bodies include the Ombudsperson Offices in all four Provinces relating to sexual harassment at the workplace, taxation, insurance and any complaints faced by the public from Federal Government Departments including State Owned Entities. Additionally, the National Industrial Relations Commission (NIRC) has been established with the jurisdiction to resolve industrial disputes and unfair labour practices. Moreover, the NCHR has been established as an independent State body with an extensive mandate to protect and promote human rights. The NCHR has also been granted a quasi-judicial competence to investigate violations of human rights abuses either through individual complaints or through a suo motu capacity.’

This information is also covered under Annex II: Actions Already Undertaken by Pakistan, B) Actions Relevant to NAP Priority Areas, viii. Access to Remedy (page 86).

 

Chapter 3: National Action Plan Priority Areas and Proposed Actions

3.2. NAP Priority Areas

3.2.8. Access to Remedy (page 36)

The State of Pakistan commits to improving the effectiveness of its judicial and non-judicial grievance redressal mechanisms, and also expects businesses to ensure a reduction in barriers to accessing internal remedies within organisations. With respect to non-judicial grievance mechanisms (State-based and non-State-based), the principles of transparency, impartiality and predictability must be adhered to.

Proposed Actions

• Federal and Provincial (page 37)

‘68. Ensure the effective functioning of public grievance redressal mechanisms such as the Ombudsperson Offices and enhance their capacity to resolve complaints.

Performance indicator(s): (i) Development of Capacity-building Initiatives; and (ii) Number of Capacity-building Trainings

UN Guiding Principle(s): 1, 3, 27

Relevant SDG(s): Goal 5 – Gender Equality; Goal 8 – Decent Work and Economic Growth; Goal 10 – Reduced Inequalities’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 68 designating the Federal and Provincial Ombudsperson against Harassment of Women at the Workplace; Ministry of Human Rights as Leading Entities, and designating the Provincial Human Rights Departments; National Commission of Human Rights; Services and General Administration Department; Legal experts as Additional Entities (page 71).

• Provincial (page 37)

‘69. Conduct compliance review to verify that effective and gender responsive organizational remedial mechanisms, including Inquiry Committees, are established in all public and private enterprises.

Performance indicator(s): (i) Compliance review report

UN Guiding Principle(s): 1, 2, 3, 12, 15, 22, 23, 25, 28, 29

Relevant SDG(s): Goal 5 – Gender Equality; Goal 8 – Decent Work and Economic Growth; Goal 10 – Reduced Inequalities’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 69 designating the Industries and Commerce Departments and Fact-Finding Committees as Leading Entities, and designating the Relevant Industries and Businesses as Additional Entities (page 71).

 

CHAPTER 4: State Expectations of Business Enterprises (pages 39-40)

‘[…] 10. Develop, embed, and implement a corporate remedy strategy, which outlines the standard established by the business to provide for redressal of human rights complaints. Business enterprises are encouraged to provide publicly available information in relation to the redressal mechanisms (to relevant stakeholders) and how the same are used (through specific trainings to employees) to ensure that complainants understand avenues of redressal if their rights have been violated.

11. Make available remediation for human rights abuses in the supply and value chains of a business even when a business is not directly involved in a human rights violation but has the potential to adversely affect human rights.

12. Provide remedies to individuals who reside in the communities in which they operate. For this purpose, businesses should ensure that they have an open-door policy and are encouraged to enforce the right of access to information by providing publicly available information on how their human rights standards are maintained.’

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CHAPTER I : PROCESS OF ELABORATING THE FIRST NATIONAL ACTION PLAN ON BUSINESS AND HUMAN RIGHTS Under the OECD Guidelines, the Peruvian NCP is tasked with promoting the Guidelines and related Due Diligence Guidance and handling cases related to potential non-compliance with the Guidelines by a multinational enterprise, through a non-judicial process of mediation and conciliation between the company and the affected parties referred to as “specific instances” (OECD, 2020b, p. 22). – page 12 CHAPTER III DIAGNOSIS AND BASELINE: ACTION AREAS 3.2. Conclusions of the specific issues Judicial and extrajudicial reparation mechanisms There is a need to strengthen and develop the capacities of the bodies responsible for the procurement and administration of justice, as well as the oversight bodies and extrajudicial mechanisms, with a gender and differential approach. The importance of this lies in the fact that the reparation of human rights violations can have a dissuasive effect on the repetition of similar situations. – page 51 Table 8: NAP strategic guidelines and objectives, and alignment with the axes of the Peru Vision 2050 Strategic guideline No. 5: Design and strengthening of mechanisms to ensure that those affected by human rights violations have access to judicial, administrative, legislative, or other means of redress. Objective 1: Strengthen mechanisms at the state level to redress human rights violations in the corporate sphere. 88. Action: Promote regulatory modifications that guarantee suitable reparation mechanisms, in accordance with international standards. Background: Establish mechanisms or commissions for the review of legislative frameworks and judicial and extrajudicial mechanisms, in line with the recommendations issued in the OHCHR Project on Access to Redress (A/HRC/32/19/Add.1, A/HRC/38/20/Add.1 and A/HRC/38/20/Add.1). Indicator: Creation and Implementation of space for intersectoral sectoral coordination for the reviewing of legislative frameworks and judicial and extrajudicial mechanisms. – page 120 90. Action: Promote and encourage expeditious and accessible procedures for the redress of persons directly affected by serious acts of corruption or when their commission involves legal persons, incorporating the GP-RBC approach and, therefore, evaluating the inclusion of guarantees of non- repetition, apologies, and non-judicial mechanisms based on mediation. Background: Peru has made significant progress focused on sanctions, through the incorporation of administrative liability of companies for corruption offenses, as well as the establishment of a legal framework to ensure that companies involved in corruption cases comply with the payment of civil reparations. Under the GP-RBC approach, it is important that these advances be complemented with activities that promote expeditious and accessible procedures for the reparation of those directly affected, as well as measures of non-repetition, apologies and mediation. In the latter case, it is important to take advantage of the framework of the National Contact Point. Indicator: Number of activities to promote and encourage the aforementioned procedures.  – page 121 Objective 2: Strengthen the judicial and extrajudicial systems to redress human rights violations in the corporate sphere. 95. Action: To disseminate judicial and extrajudicial mechanisms for the protection of human rights in business activities. Background: To make visible and disseminate the existing tools in the national legal framework and the experiences in terms of reparation in cases involving corporate responsibility for adverse impacts on human rights, including aspects such as the burden of proof. Indicator: Report on activities for the dissemination of judicial and extrajudicial mechanisms implemented. – page 124

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2. Ministry of Development Funds and Regional Policy

Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services

[page 10]

“In 2019, Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services (European Accessibility Act, EAA) entered into force.”

(…)

“The mechanisms ensuring conformity with the accessibility requirements comprise:

(…)

• Alternative dispute resolution mechanisms

• Administrative and judicial channels

• Any consumer will be able to lodge a complaint (take an action to a court or public administration body) with additional powers of NGOs in this respect.”

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Principle 27 – OECD National Contact Point

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)

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D. Tasks for the Third NAP

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.

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Guiding Principle 2

Measure 7

“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.”

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3 Access to remedy [page 15-17]

Legal remedies provided by the State

“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.”

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3. New measures contained in the NAP 2024–27

(3.3) Pillar III: Access to remedy

Measure 8: Map and analyse obstacles preventing access to grievance mechanisms

Judicial and non-judicial grievance mechanisms will be exhaustively mapped out in order to inventory and demonstrate their complementary nature, as part of the effort to improve access to information and show what forms of remedy are available for victims of human rights abuses. In parallel, obstacles preventing access to these mechanisms will be identified and analysed with respect to the effectiveness 11 criteria contained in the UN Guiding Principles, while also taking gender considerations into account. The aim of this holistic approach is to improve the effectiveness and inclusivity of remedy mechanisms while increasing trust in the human rights protection system.

Objective	Indicator	Responsibility
Raise the visibility of judicial and non-judicial grievance mechanisms for victims of human rights abuses and analyse obstacles	Judicial and non-judicial mechanisms are mapped out and the end result is published. The mapping process includes an analysis of the extent to which the mechanisms are complementary and an analysis of obstacles preventing access to grievance mechanisms	FDFA/STS EAER/SECO

Measure 9: Encourage the private sector to set up grievance mechanisms

One of the expectations set out in the UN Guiding Principles is that companies should provide access to remedy for victims of business-related human rights abuses. When it comes to implementing the UN Guiding Principles, the federal government can play a role by helping companies, business associations and multi-stakeholder initiatives to create and put in place grievance mechanisms. Switzerland will support the Centre for Sport and Human Rights in designing and promoting a guide on access to remedy in order to help sports bodies create regulations that ensure access to effective remedy and to grievance mechanisms for victims of abuse in sport.

Objective	Indicator	Responsibility
Non-state grievance mechanisms can be used to help address human rights issues.	Advice is available on the NAP website and is shared by the Federal Administration with companies.   Existing grievance mechanisms are put in place by Swiss-based companies, multi-stakeholder initiatives and sports federations.	FDFA/STS EAER/SECO

Measure 10: Handling of complaints from human rights defenders

Switzerland supports human rights defenders, including in cases of business-related abuses. A standard operating procedure for analysing and monitoring communications will be developed to ensure that reports submitted by human rights defenders and civil society organisations, and those submitted in connection with special procedures involving Swiss companies, are systematically addressed.

Objective	Indicator	Responsibility
Reports received from human rights defenders and civil society organisations, and in connection with special procedures involving Swiss companies, are systematically addressed.	A standard operating procedure for analysing and monitoring communications is in place.	FDFA/STS

The 2024-27 National Action Plan is supplemental to the 2020-23 NAP. The 2020-2023 NAP explicitly addresses this issue.

Additional Information about the 2020-23 NAP can be found here.

‘

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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).

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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.

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CHAPTER THREE: SITUATIONAL ANALYSIS

3.7 Access to Remedy

(…)

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 INTERVENTIONS STRATEGIES

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

1. Awareness raising on workers’ rights and available remedy mechanisms for business-related human rights abuses and violations.
2. 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.
3. Strengthening the capacity of judicial and quasi-judicial institutions to provide remedy to business-related human rights abuses and violations.
4. Strengthening laws and policies providing for effective, inclusive and gender-responsive remedies on business-related matters.
5. Increasing human and financial resources to support the monitoring and inspection of business operations.
6. Strengthening avenues available for remedy to business-related human rights violations and abuses.
7. Enhancing inter-sector and inter-agency coordination in handling complaints of victims of business-related human rights abuses and violations.
8. 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

1. 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.
2. Provide free legal aid services to communities affected by business-related human rights abuses and violations.
3. Strengthen linkages and referrals for human rights violations and abuses.
4. Promote alternative dispute resolution mechanisms.
5. 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)

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The UK 2016 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 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 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.”

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Section II: Priority Areas of the National Action Plan on Responsible Business Conduct
…

3. Priority Area (3) Strengthening Access to Remedy: “[…] The USG commits to strengthen access to remedy and to enable communities affected by USG investments or who utilize USG dispute mechanisms to access remedy safely and without reprisal. To do so, agencies and offices will strengthen USG-based due diligence processes and grievance mechanisms in consultation with external stakeholders through the following measures…

• U.S. International Development Finance Corporation (DFC): DFC will strengthen protections against reprisals for groups and individuals through an updated policy commitment, developing internal guidance for responding to allegations of retaliation, and enabling anonymous complaints in DFC grievance mechanisms.
• U.S. Department of the Treasury (“Treasury”): Treasury will advocate for effective remedy systems at multilateral development banks, including the International Finance Corporation (IFC) and Multilateral Investment Guarantee Agency (MIGA), for project-affected communities, which includes robust responsible exit principles.
• Export-Import Bank of the United States (EXIM): EXIM will engage with Export Credit Agency (ECA) counterparts on strengthening remedy procedures and will engage in public outreach to solicit input on how to improve access to remedy and the efficacy of project-based grievance mechanisms.” (p.11-13)

Section III: Additional National Action Plan Commitments
…

Table 3: Access to Remedy Commitments

(See NCP elements in the OECD National Contact Points (NCPs) breakdown)

The Department of the Treasury will “advocate for an effective remedy system at multilateral banks, including IFC and MIGA, which includes robust principles on “responsible exit.” This advocacy will inform IFC and MIGA’s development of the “IFC/MIGA Approach to Remedial Action.” This approach seeks to minimize the occurrence of environmental and social harm in IFC and MIGA projects through improving the implementation of environmental and social safeguards, while also supporting remedial action to communities to address harm when needed.”

The Export-Import Bank of the United States will “solicit public input on how to strengthen the effectiveness of project-based grievance mechanisms. This will include outreach to interested stakeholders and an opportunity for the public to provide feedback on this subject. This feedback will inform the agency’s efforts to work with other export credit agencies in establishing improved standards for project-based grievance mechanisms as well as its own evaluation of the adequacy of such mechanisms in the project context.”

(p.23)

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II. TASKS AND ACTIONS

3. Improving the efficiency of law and policy implementation

b) In labor

Completing and integrating the mechanism of monitoring, receiving and processing complaints from people and businesses into state management agencies (such as hotlines, reception mailboxes, dialogues, etc.) for RBP in the field of labor; stepping up the collection of data and establishment of databases on RBP in the field of labor.

– Lead agency: Ministry of Labor, Invalids and Social Affairs

– Coordinating agencies: Ministries, ministerial-level agencies, other relevant agencies

– Outputs: Hotlines, reception mailboxes, dialogues, databases on RBP in labor

– Deadline: 2027

c) In the protection of vulnerable groups

Completing and integrating mechanisms for receiving and processing complaints from people and businesses into state management agencies (such as hotlines, reception mailboxes, dialogues, etc.) for RBP concerning vulnerable groups; stepping up the collection of data and establishment of databases on RBP for vulnerable groups

– Lead agency: Ministry of Labor, War Invalids and Social Affairs

– Coordinating agencies: Ministries, ministerial-level agencies, relevant agencies

– Outputs: Hotlines, reception mailboxes, dialogues; databases on RBP for vulnerable groups

– Deadline: 2027

d) In environmental protection

Completing and integrating mechanisms for receiving and processing complaints from people and businesses at state management agencies (such as hotlines, reception mailboxes, dialogues, etc.) for RBP in the field of environment; stepping up the collection of data and establishment of databases on RBP in the field of environment associated with the circular economy

– Lead agency: Ministry of Natural Resources and Environment

– Coordinating agencies: Ministries, ministerial-level agencies, relevant agencies.

– Outputs: Hotlines, reception mailboxes, dialogues; a database on RBP in the field of environment associated with the circular economy

– Deadline: 2027

dd) In consumer protection

Completing and integrating mechanisms for receiving and processing complaints from people and businesses at state management agencies (such as hotlines, reception mailboxes, dialogues, etc.) for RBP in the field of consumer protection; stepping up the collection of data and establishment of databases on RBP in the field of consumer protection.

– Lead agency: Ministry of Industry and Trade

– Coordinating agencies: Ministries, ministerial-level agencies, relevant agencies.

– Outputs: Hotlines, receiving mailboxes, dialogue activities; databases on RBP in the field of consumer protection

– Deadline: 2027

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