Guiding Principle 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.
Administrative, legislative and other non-judicial mechanisms play an essential role in complementing and supplementing judicial mechanisms.
Even where judicial systems are effective and well-resourced, they cannot carry the burden of addressing all alleged abuses; judicial remedy is not always required; nor is it always the favoured approach for all claimants. Gaps in the provision of remedy for business-related human rights abuses could be filled, where appropriate, by expanding the mandates of existing non-judicial mechanisms and/or by adding new mechanisms. These may be mediation-based, adjudicative or follow other culturally appropriate and rights-compatible processes – or involve some combination of these – depending on the issues concerned, any public interest involved, and the potential needs of the parties. To ensure their effectiveness, they should meet the criteria set out in Principle 31.
National human rights institutions have a particularly important role to play in this regard.
As with judicial mechanisms, States should consider ways to address any imbalances between the parties to business-related human rights claims and any additional barriers to access faced by individuals from groups or populations at heightened risk of vulnerability or marginalization.
What National Action Plans say on Guiding Principle 27
Action point 2, Elaborer une brochure sur les mécanismes de réparation liés à l’autorité publique [Prepare a brochure on grievance mechanisms related to public authority] 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 results of this research will be integrated into a readable, comprehensible and practical brochure that will be made available to stakeholders, both online and in print (limited). This brochure will focus on companies, organizations and victims of human rights violations. Both procedural and substantive aspects of these grievance mechanisms will be addressed and will be available in Dutch, French, German and English.
On the engagement with NCPs, Action point 23, Renforcer le Point de Contact national (PCN) de l’OCDE [Strenghten the OECD National Contact Point] covers the issue in detail. The action aims at strengthening the capacity of the Belgian NCP in order for it to fulfil its missions and play a more active role in the third pillar of the UNGPs – regarding the access to remedy through non-judicial grievance mechanisms.
Moreover, the federal government explains that strengthening the NCP “can contribute to support the different judicial or non-judicial measures in matters of respect for human rights by Belgian companies.”
Lastly, the NAP states that “once a procedure is introduced to the NCP concerning the activities of a Belgian company abroad, at the explicit request of the NCP and the companies concerned and under the guidance of the NCP, the Belgian Embassy in the country concerned can play a role mediation.”
Action point 5, Assurer la diffusion de la boîte à outils et de la brochure sur les mécanismes de réparation parmi les représentants belges à l’étranger et sensibiliser ceux-ci à la question [Ensure the dissemination of the toolbox and brochure on grievance mechanisms among Belgian representatives abroad and raise awareness of the issue] links Action point 2 and 3 together. The action aims at raising awareness among the network of Belgian diplomacy on the issues of companies’ social responsibility, sustainable development and the problematic of human rights violations committed by companies operating abroad. They will be given practical toolbox (Action point 3) to better inform companies who contact them with a wish to expand their activities abroad. The toolbox will also include elements on grievance mechanisms (based on Action 2), enabling the Belgian diplomatic network to better inform businesses, victims of possible violations and all other interested parties about the access to remedy in Belgium.
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.
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:
o Renew and strengthen the Mirror Committee, a body composed by representatives from the business community, unions, NGOs, and academia -with the support of the INDH. 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.
o 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 United
Nations Guiding Principles on Business and Human Rights.
o Prepare, in conjunction with the National Human Rights Institute, 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.
o 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.
o Keep the Trade Offices periodically updated, both at a national and international level, as well as the Chilean Embassies abroad and future Chilean diplomats, about OECD Guidelines, through official messages, teleconferences, visits to Embassies/Regional Offices and coordination of the Chilean Diplomatic Academy.
o Be voluntarily evaluated in 2017 through peer review, which will allow the country to identify the NPC’s strengths, as well as its points of improvement, thus becoming the first State in Latin America and the Caribbean to go through this kind of process.
2.2. The Ministry of Labour will guarantee access to surveillance actions should labour rights be infringed, by modernising the Labour Directorate.
2.3. The National Institute of Human Rights will:
o Introduce business and human rights standards in observation missions and reports.
o Collaborate with the OECD National Point of Contact in business and human rightsrelated matters.
2.4 The Superintendence of the Environment (SMA) will:
o Permanently update the National Information System for Environmental Surveillance, in publicly accessible website.
o 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.
o Apply prioritising criteria for the processing and procedure of grievances submitted by citizens, such as “Level of seriousness of the facts reported” and “Public commotion”. The SMA has available a process for the community the raise grievances about facts that may represent infringements falling under its competence.
o Apply the Technical Protocol for the Execution of Environmental Surveillance Activities concerning Measures Associated with the Human Environment, in the surveillance of measures contained in Environmental Qualification Measures Associated with the Human Environment (indigenous or non-indigenous.)
2.5. Within the framework of the Local Development Policy of the Ministry of Energy, the following actions will be carried out:
o 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.
o 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.
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.
Access to Remedy
XI. Non-Judicial Mechanisms [page 24]
In view of the foregoing, this section aims at strengthening the talk mechanisms as a way to conflict resolution and access to remedy, in line with the efficacy criteria noted in the Guiding Principles and other international standards.
11.1 As regards the non-judicial remedy, the mechanism mapping referred to in 10.2 above will define the ways to access to each mechanism; the encountered obstacles; the relation between mechanisms; the affected institutions, individuals and communities; as well as the current research, mediation, facilitation, negotiation and arbitration options.
11.2 The Task Force will develop strategies to disseminate the most relevant and appropriate business and human rights extrajudicial mechanisms.
11.3 The Ministry of Commerce, Industry and Tourism, within the six months of the Plan launching, will submit to the Consultation Committee of the National Point of Contact, an analysis of its dissemination strategy regarding the National Point of Contact and will establish the improvement it may deem fit to guarantee access to such point as for conflicts over which it may have jurisdiction.
11.4 The Ministry of Labor and the Public Employment Services will continue to support the talks among workers, unions, enterprises and government for negotiation, as well as the employment mediation and agreement through the mechanisms defined for such purpose
11.5 The Task Force and the Council to the President for Human Rights, supported by the Ombudsman’ Office, will encourage and provide access to mediators and facilitators for the resolution of conflicts as may arise between communities and enterprises, notwithstanding that there may be other pending administrative or judicial processes.
Pillar III. Access to Remedy
Extrajudicial state resources [pages 42-43]
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.
Alternative and online dispute resolution [pages 49-52]
Judicial proceedings are inherently formalised and costly affairs. The calling of a judge is mainly to handle complex legal issues. Yet much of the agenda at the courts is filled with disputes that are legally and factually simple and could be dealt with by extrajudicial means. Ministry of Justice statistics indicate that half of the disputes that pass through the courts have a claim value of less than CZK 10,000. In other words, these are petty disputes. While it would be wrong to automatically dismiss petty disputes as simple in their facts, we can assume that this is the case in many instances. It may be more effective, in some cases, for these types of factually simpler disputes to be handled in certain special procedural regimes (e.g. by simplifying judicial hearings or restricting appeals), or a solution to them could be found out of court. If the courts no longer have to grapple with a surfeit of such disputes, they will have more capacity to address complex and fundamental legal issues.
However, it is difficult to estimate the actual number of such simplified disputes. Numerous low-value disputes do not even make it into court because the costs of proceedings would dwarf the claim value. Even plaintiffs who are sure of the legitimacy of their claim will not bring an action in a situation where the loss of the case and reimbursement of costs to the counterparty would make them destitute. Consequently, many such disputes are “latent”, though that is not to say that they are non-existent.
In this light, the state needs to offer a functioning, effective and efficient alternative running parallel to the judicial system. This alternative system could take over some of the agenda handled by the courts, thereby making it possible to speed up and streamline the judiciary. This system, in a way, can already be found, e.g. in the extrajudicial resolution of consumer disputes. However, it could also be developed in other areas (labour law and small claims).
Notwithstanding the above, any alternative dispute resolution system must be viewed genuinely as an alternative and must not hobble any party’s access to the courts. In this regard, when parties opt for alternative dispute resolution, this choice must primarily be based on their express, free and knowing consent, and also with consideration for the possible weaker position that either of them may be faced with (e.g. consumers). This should never hamstring judicial protection and the right to a fair trial.
The modernisation of the judiciary, the development of alternative dispute resolution methods and the adaptation of the existing system to the requirements of the modern age are topics being addressed by most countries around the world. The Czech Republic has a solid foundation on which to build, but the existing systems need to be carefully assessed and the best foreign examples need to serve as inspiration.
The Government of the Czech Republic recommends that businesses make use of vehicles for the alternative amicable resolution of disputes, support the formation and development of such vehicles, and offer them to their partners and customers as an option.
Current state of play:
- The Czech Trade Inspection Authority, the Energy Regulatory Office, the Czech Telecommunication Office, the Financial Arbitrator and certain other authorised entities form a state-guaranteed system of extrajudicial consumer dispute resolution.
- The Ministry of Industry and Trade may authorise further entities to engage in the extrajudicial resolution of consumer disputes should they so request and comply with statutory conditions.
- By law, vendors are required to inform consumers of the possibility of making use of alternative dispute resolution for consumer disputes.
- Legislation on alternative and extrajudicial consumer dispute resolution, as coordinated by the Ministry of Industry and Trade, is monitored and will be evaluated within two years after it has taken effect (i.e. in 2018).
- Czech law covers mediation, arbitration and the possibility of the judicial resolution of disputes in certain specific areas.
- Individual businesses may set up their own systems to settle disputes with customers.
- The Code of Civil Procedure already requires courts to attempt to find an amicable solution to disputes, and lets them recommend or order mediation. However, these concepts remain little used and have not been that successful. In 2016, a mere 2.4% of disputes ended with conciliation, and mediation was ordered in just 0.15% of disputes.
- The Ministry of Labour and Social Affairs is considering introducing vehicles for the extrajudicial and alternative resolution of disputes in labour-law cases.
- Raise awareness among consumers of the possibility of resolving consumer disputes extrajudicially.
Coordinator: Ministry of Trade and Industry
- Evaluate judicial and extrajudicial means of enforcing the law in the Czech Republic in cooperation with the representatives of businesses and other relevant stakeholders and, where appropriate, propose changes.
Coordinator: Ministry for Human Rights
Co-coordinators: Ministry of Justice, Ministry of Industry and Trade
Deadline: 31 December 2020
Administrative courts and their opportunities to review and annul follow-up decisions
It is often the case that complex authorisation proceedings do not take place as a whole, but comprise a many sub-proceedings and decisions that follow up on each other and are intertwined. If one decision is annulled by a special remedy (review proceedings or an administrative action), the downstream decisions formally remain in force even though they have been robbed of their basis. One example is building permit proceedings, where the issuance of a building permit hinges on the existence of a valid zoning decision. If a court annuls the zoning decision (or even part of the land-use plan forming the basis for the issuance of the zoning decision), the building permit remains in force. This falls foul of the principle of procedural economy (the annulment must take place in a separate process, even though this is a pure formality in the overwhelming majority of cases). It is also contrary to the requirement of legal certainty (the decision remains in force and enjoys the presumption of correctness, even though it obviously needs to be annulled), and is at odds with the principle of legality (because a decision that is clearly not legal remains in force).
- Analyse the finality and annulment of administrative decisions that are deprived of their legal basis in the form of the preceding decisions underlying their force. Evaluate how frequent such situations are and what the economic ramifications might be.
Coordinator: Ministry for Human Rights
Co-coordinators: Ministry of Regional Development, Ministry of Agriculture, Ministry of the Environment
Deadline: 31 December 2019
- Depending on the result of the analysis, add provisions to the Code of Procedure of Administrative Courts so that when a court annuls an administrative decision, it also automatically annuls, with no need for any motion, downstream decisions that cannot stand on their own (without the underlying decision), or propose another solution to the problem.
Coordinator: Ministry of Justice
Deadline: 31 December 2021
2. State duty to protect human rights
2.3. Actions taken – Protection of human rights through state regulation and policy [page 12]
To further support the protection of human rights, the Danish Government has ensured that individuals have access to a non-juridical remediation mechanism in cases where Danish companies have had adverse impact on human rights (GP 27). (See the specific section on the implementation of access to non-judicial remedy, section 4.4).
3. Corporate responsibility to respect human rights
3.3 Actions taken [page 18]
Expectations to companies and other stakeholders to respect human rights
The transparency framework for the major private and public companies is supported by the new non-judicial remediation mechanism where cases involving potential adverse impacts by Danish companies on international CSR principles, including adverse impacts on human rights, can be investigated (GP 4 and GP 27).
4. Access to remedy
Recommendations on non-judicial remedy [page 20]
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
Access to non-judicial remedy
In the second national action plan for CSR from March 2012, the Danish Government announced the establishment of a Mediation and Complaints-Handling Institution for Responsible Business Conduct.
The institution was established by Danish law, which was passed through parliament and approved on June 12, 2012. The Danish Government wanted to ensure that a non-judicial remedy has a maximum of legitimacy and authority. The purpose of the institution is to investigate cases involving potential adverse impacts by Danish companies on international CSR guidelines as described in the OECD Guidelines for Multinational Enterprises.
The mediation and complaints-handling institution is established in accordance with the international effectiveness criteria for non-judicial mediation and grievance mechanisms as described in the UNGPs and the OECD Guidelines for Multinational Enterprises (GP 31).
The institution will base its assessments on the OECD Guidelines for Multinational Enterprises, which incorporate the UN Guiding Principles on Business and Human Rights, including in particular the due diligence concept as described in the UN Guiding Principles, when looking at a complaint.
The institution focuses on mediation to solve complaints – both on company level and if that is not possible, assisted by the Mediation and Complaints-Handling Institution. If mediation is not possible, the institution can initiate an investigation of the matter and based on the result, make a public statement.
The institution can examine complaints involving not only Danish private companies but also public authorities and private organisation, like NGO’s. It can also take up cases on its own initiative, which will allow the institution to be proactive in cases of substantive importance. As a first step in the case handling procedure the institution gives the company two months to solve the conflict with the complainant without the involvement of the institution itself. If the company does not solve the matter on its own, the institution undertakes an initial assessment and based on the result the institution can offer mediation or investigation. The institution which has existed since November 1st 2012 is composed of five members – one chairman, one expert and three members appointed on the recommendation of the following organisations; Confederations of Danish Industries, the Danish Confederation of Trade Unions and the Danish 92 Group which is an association of 23 different Danish NGO’s. For more information on the member of the institution see: www.businessconduct.dk.
The institution is also working to promote the respect for the OECD Guidelines and the knowledge of the institution. So far the promotional activities have included among other:
– Homepage in Danish and English; www.businessconduct.dk;
– Survey among Danish companies on the knowledge of the institution and of the OECD Guidelines in order to be able to measure the progress in the coming years;
– Information leaflet in Danish, English, French and Spanish; the leaflet has been distributed through 112 Danish embassies for audiences abroad;
– Translation of the OECD Guidelines for Multinational Enterprises into Danish;
– Briefings, presentations and dialogue with interest groups, NGOs, etc. in order to raise awareness of the institution and the OECD guidelines for multinational enterprises and the UN Guiding Principles;
– Development of guidance on due diligence in the supply chain and company-based conflict resolution;
– Instruction for Danish Embassies encouraging them to raise awareness about the Danish National contact Point to local stakeholders.
For more information see: http://www.businessconduct.dk
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 – Overview of the implementation of the access to remedy
Access to remedy [page 34]
State-based non-judicial grievance mechanisms
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.
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles)
Examples of non-judicial institutions which contribute to remediation 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.
Initiatives taken or planned as a dedicated measure to implement the UNGPs
- Mediation and grievance mechanism for responsible business conduct. In June 2012 the Government approved a bill creating the Mediation and Grievance Mechanism for Responsible Business Conduct. This state-based non-judicial grievance mechanism can deal with cases involving potential adverse impacts by Danish companies on international CSR guidelines, including human rights impacts. The mediation and grievance mechanism comply with the UN Guiding Principles on Business and Human Rights and the OECD’s Guidelines on Multinational Enterprises.
Government covering note on the UN Guiding Principles on Business and Human Rights National Action Plan
OECD Guidelines and the Committee on Corporate Social Responsibility [page 5]
Committee on Corporate Social Responsibility, together with the Ministry of Employment and the Economy, serves as the Finish National Contact Point for the implementation of OECD Guidelines. The function of the National Contact Point will be assessed and its operating practices developed. The dissemination of information on operating practices will be improved.”
4.1 Development of the OECD National Contact Point [page 31]
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 NGP’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 online.
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.
III. Access to Remedy
Non – judicial mechanisms
At the international level
2.1. The OECD National Contact Point (NCP) [pages 54-55]
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’ organisation 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 2012and 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, sectorspecific guides, roundtables, etc.). The NCP’s website35 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, NCPscannot force a business to comply with the OECD Guidelines, even when they rule that these guidelines have been breached.
Proposal for Action No.15
– 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
– Reinforce the NCP’s tools supporting dialogue with civil society by optimising provisions in its internal rules (annual information meetings, annual meetings to discuss issues with civil society, calling on experts as required).
4. Guaranteeing access to remedies and redress
4.2 National Contact Point for the OECD Guidelines [pages 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 Inter-ministerial Steering Group on the OECD Guidelines and with the “OECD Guidelines” Working Group. The Inter-ministerial 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 Inter-ministerial 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.
- 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.
Annex 1 – list of additional and ongoing actions to be carried out across government
Domestic Framework [page 20]
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.
IV. Government responses
Current Activities and Future Commitments [page 28]
B. Operational Principles
Guiding Principles 27
As far as Non-judicial remedies are concerned, an important role is played by the specific instances offered by the Italian National Contact Point. As requested by the OECD Guidelines, the OECD NCP manages the “specific instances”8 through a non-judicial mechanism where the NCP offers good offices when a stakeholder considers that a multinational enterprise has adopted behaviour not compliant with the principles and recommendations set out in the Guidelines.
Italy also supports respect for human rights within the UNEP rights-based approach to environmental protection and sustainable development. Italy has implemented Principle 10 of Rio 1992 ratifying the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.
An Italian non-judicial grievance mechanism is the Bank and Financial Arbitrator (ABF) created in 2009 and active since 2010 through its Panels in Milan, Rome and Naples (panels are likely to be established soon in other major towns). In the course of its mandate the ABF has extended the concept of ‘customers’ to cover individuals affected by the action of an intermediary even if the parties were not bound by contract. ABF expanded its functions to deal also with pre-contractual obligations in order to protect individuals claiming that intermediaries violated the obligations of good faith – which bind the parties to adopt fair behavior while negotiating.
- The inclusion of business-related human rights abuses in a special section among the competence of the National Human Rights Independent Institution to be established;
- Improve the visibility and the knowledge of interested parties about the existence of the NCP’s “specific instances” procedures;
- Assess, in line with the G7 “Action for Fair Production” commitments, the performance of the Italian NCP and lead by example, by carrying out an OECD Peer Review of the NCP and hosting peer learning activities;
- Continue ensuring effective implementation of the Aarhus Convention;
- The launch, also through the diplomatic and consular network and with the involvement of Italian Chambers of Commerce abroad, of an awareness raising campaign on non-judicial grievance mechanisms;
- Liaise and support the many Ombudsmen active at national and local level to raise their awareness to protect individuals against human rights abuses by business;
- The extension of the original mandate of the Financial Bank Arbitrator to include human rights-related claims of financial nature (such as mortgage and lending discrimination).
II. Objectives and Measures
Objective 3: ensuring access to effective remedy
A. lmplemented measures [page 9]
1. Promotion of mediation system development and effectiveness. The aim is to develop the mediation process and promote peaceful settlement of disputes. An order No l R-263 On Mediation System Development was adopted by the Minister of Justice on 12 November, 2013. Working groups were created to prepare the concept of the mediation system development and to improve the mediation system in civil, administrative and criminal procedure. B. Planned Measures [page 10]
2. Evaluation of legal regulation of the institute of pre-trial administrative dispute The aim is to establish a more explicit and definitive regulation of pre-trial complaint examination process carried out by the Chief Administrative Disputes Commission and public administrative disputes commissions in municipalities by transferring valid regulation from disputes commissions’ work regulations to the Law on Administrative Disputes Commissions.
3. Development of peaceful and extrajudicial consumer dispute 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 the consumer rights protection system.
3. Results of the consultations and government response
3.5 Scope for Remedy
The National Contact Point (NCP) supports companies in putting the OECD Guidelines into practice. Where there is a difference of opinion between companies and other stakeholders on the application of the Guidelines, any party may submit a complaint to the NCP. Should the complaint be deemed admissible, the NCP may attempt to act as an impartial mediator between the parties reporting the abuse and the company in question. The NCP may be regarded as an overarching external remedy mechanism, since it is accessible to all stakeholders and is based on impartial mediation. At the end of a procedure, the NCP issues a final statement in which it describes the process and the relationship between the solution and the OECD Guidelines. Parties may reach agreement that remedy (including compensation) should be offered by the company. The NCP also issues a final statement in cases where parties fail to reach a solution. In that event, the NCP not only describes the process but also issues recommendations on the alleged breach of the OECD Guidelines, on the basis of its understanding of the facts. The purpose of these recommendations is to prevent future disputes. The NCP procedure is non-judicial. Its final statement is not an administrative law decision and there is therefore no scope for appeal. At the request of the House of Representatives, a study was conducted into strengthening the functioning of the NCP. The Dutch NCP was compared with the NCPs in the UK, Norway and Denmark, and interviews were held with representatives of companies, trade unions and civil society organisations and government representatives involved in the work of the NCP.
Specifically, the study examined whether the NCP should be authorised to carry out investigations into possible breaches of the OECD Guidelines by Dutch companies on its own volition, thus not only in response to complaints.
The people interviewed were reasonably satisfied with the functioning of the NCP. The way in which the NCPs are organised reflects each country’s specific social and economic structure. For example, the Dutch decision not to opt for civil servants, but for independent members with a firm base in society differs from the British model in which a Steering Board oversees the work of the NCP, whose members are civil servants.
There is no essential difference between the nature of the statements the various NCPs may issue in response to complaints. The Danish NCP is the only NCP entitled to carry out investigations on its own volition into the involvement of companies in abuses in international supply chains. No criteria have been laid down for starting an investigation. When asked, the Danish NCP was unable to say on what grounds it would take the initiative to launch an investigation. To date, no such investigation has been launched.
The government is not in favour of the Dutch NCP having similar, unconditional powers to carry out investigations. The people interviewed also expressed little support for this idea. The Dutch NCP may carry out additional investigations in response to complaints. If the NCP were entitled to carry out its own investigations, the business community would ultimately lose confidence in its impartiality. Moreover, if an issue were to be investigated on the NCP’s own volition, thus not in response to a complaint by an interested party, there would be no official ‘other party’ for the mediation procedure with the company in question. It should be noted here that, in practice, the Dutch NCP already facilitates dialogue on CSR at the request of civil society organisations and/or companies, and thus not in response to a formal complaint submitted in accordance with the OECD Guidelines. The aim of those requesting facilitation is to bring about improvements, sometimes with a view to forestalling submission of an official complaint to the NCP.
Proactive investigation of possible risks in the Dutch business community’s supply chains now takes place by means of Sector Risk Analyses, as described above. Voluntary CSR agreements will be concluded with a number of sectors on the basis of these analyses. In their letter requesting advice on how effective CSR agreements can be concluded with business sectors, the Minister for Foreign Trade and Development Cooperation and the Minister of Economic Affairs asked the SER to devote explicit attention to the role the NCP could play as facilitator or dispute settlement mechanism. In very serious situations, where a recommendation by the NCP is needed to support the social dialogue, the government will acquire scope to ask the NCP to carry out a sector-wide investigation into CSR issues. To promote a level playing field, the results will be brought to the attention of all countries that adhere to the OECD Guidelines in the OECD working group on CSR. Given the NCP’s limited capacity and the fact that the Sector Risk Analyses already ensure systematic identification of risks in Dutch sectors, such an investigation would probably be needed no more than once a year.
The conditions under which the NCP may be requested to carry out these investigations will be specified in the amendments to the decree establishing the NCP, which will be submitted to the House of Representatives in the summer of 2014. The study referred to above into the functioning of the NCP will lead to a number of other amendments to this decree. The preferred option is for the decree to put the consultations that the NCP regularly holds with civil society organisations, employers’ organisations and trade unions onto a formal footing, and indicate the issues on which the NCP should, in any event, consult its stakeholders. The Minister for Foreign Trade and Development Cooperation will submit a proposal on this subject, with explanatory notes, to the House of Representatives before the summer of 2014.
In 2014, the Netherlands will organise a conference on judicial and non-judicial grievance mechanisms, together with the ACCESS Facility.
BOX- Project on improving the accessibility and effectiveness of non-judicial grievance mechanisms [page 37]
Through the Human Rights Fund, the Netherlands is supporting SOMO’s Grievance Mechanisms and Human Rights Programme.
The programme, which runs from 2012 to 2015, aims to improve the accessibility and effectiveness of non-judicial grievance mechanisms, such as the NCP and complaint procedures at company level. (..).
Norway’s OECD National Contact Point [page 20]
As a member of the OECD, Norway is committed to promoting the OECD Guidelines for Multinational Enterprises. The Guidelines were updated and adopted at the OECD Ministerial Council Meeting in May 2011. All OECD countries must appoint a National Contact Point that in addition to promoting the Guidelines provides on request assistance in specific instances of alleged non-observance of the Guidelines. The Contact Point is not a supervisory or control body, but provides advice and facilitates access to conciliation and mediation procedures. National Contact Points are also mandated to cooperate with each other on promoting the Guidelines. Norway’s Contact Point is appointed by the Ministry of Foreign Affairs in consultation with the Ministry of Trade, Industry and Fisheries and the Ministry of Finance, from candidates proposed by the social partners (the Confederation of Norwegian Enterprise (NHO) and the Norwegian Confederation of Trade Unions (LO) and civil society (the Norwegian Forum for Environment and Development).
4.1 State-based grievance mechanisms [page 40]
State-based non-judicial grievance mechanisms
The 27th principle concerns public non-judicial grievance mechanisms.
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.
Pillar III, Access to remedy
Mediation in civil-, economic-, and individual labour- law proceedings [page 41]
National legislation makes it possible to use mediation. This instrument is widely employed, e.g., on the basis of civil, economic, and individual labour law. It may be used by anyone who has been a victim of human rights violations in the context of business activity. Mediation was given its current form by the Act of 10 September 2015 amending certain acts to support amicable methods of dispute resolution, while the provisions governing this matter are dispersed throughout various acts.
Mediation is a voluntary and confidential method of resolving disputes in which the parties themselves reach an agreement with the help of an unbiased and neutral mediator. It may be applied in all cases where the law permits a settlement. This mechanism provides an opportunity to reach a faster and cheaper resolution of a dispute by means of developing a common understanding.
In civil cases, mediation may take place before bringing a case to court (mediation agreement, out-of-court or pre-trial mediation) or after proceedings were initiated, by means of a court decision. In addition, each party to the dispute has the right to request mediation at any stage of court proceedings. In any case, the necessary condition for mediation is the consent of the parties to the dispute, which may also be withdrawn at any stage of mediation proceedings.
Having decided to start an arbitration procedure, the mediator contacts the parties by setting the date and place of the first meeting, during which they inform the participants about their rights and outline the course of mediation proceedings.
Mediation should be understood as a joint discussion between the parties in the presence of a mediator; however, the participants may individually meet with the mediator in the course of the proceedings, where the circumstances of the case would make this advisable. In exceptional situations, this process can also take place without direct contact between the participants. Mediation is, in principle, of a confidential nature, and the mediator, the parties, and other people involved in the proceedings are required to maintain the confidentiality of the facts they learn in the course of the proceedings.
Mediation proceedings may result in the conclusion of a jointly developed settlement, and in such a case, the parties have to apply to a court for approval. The settlement, after such acceptance, has the legal force of a settlement reached before a court of law. However, if the parties fail to reach an agreement, they still have the right to pursue their claims in court proceedings.
Pillar III, Access to remedy
2. Freedom of association and the right to collective bargaining [page 44]
Polish legislation regulates mechanisms for protecting the period of the employment relationship with trade union activists. In accordance with Article 32 of the Act on Trade Unions, the guarantees of the duration of the employment relationship protect:
– members of the board of the establishment trade union organisation referred to by name (para. 1);
– other members of the establishment trade union organisation, referred to by name, entitled to represent the organisation before the employer or the authority or a person who performs activities in the area of labour law on behalf of the employer (para. 1);
– employees listed by name in the resolution of the founding committee (para. 7);
– employees who perform a function by choice in a trade union outside the establishment, who benefit from unpaid leave or an exemption from performing work (para. 9).
This list is exhaustive. In the case of an establishment trade union with the status of a representative organisation, the limit of employees covered by protection is calculated with the application of one of the two statutory methods (parity or progressive), and the choice of method is exclusive to the trade union.
In light of Article 32(1) of the Act on Trade Unions, the employer may not, without the consent of the board of the establishment trade union organisation (respectively, the founding committee or the statutory body of a multi-establishment trade union organisation):
– terminate the employment relationship with a trade union activist (point 1);
– terminate the employment relationship with that person without notice (point 1);
–unilaterally change working or pay conditions to the detriment of a trade union activist (point 2), unless separate regulations provide for this (e.g., in the event of bankruptcy or liquidation of the employer).
The protection referred to above is available:
– for the period specified in the resolution of the board and after that period for an additional period corresponding to half of the period specified by the resolution; however, not longer than one year after that period (Article 32(2)); or
– a period of six months from the day the founding committee is established (Article 32(7)); or
– a period of leave or exemption and for one year after that period (Article 32(9)).
The lack of consent of the competent body of the trade union organisation is binding on the employer in the sense that they may not legally unilaterally terminate or change the employment relationship with a trade union activist. In certain situations, the protection of the period of the trade union activist’s employment relationship may, however, be excluded because of an abuse of the freedom of association. The Supreme Court has discussed the subject of abuse of protection of the period of the employment relationship of trade union activists, e.g., stating in judgement I PKN 23/00 of 12 September 2000 that the statutory guarantee of enhanced protection of the period of the employment relationship should be used only by a trade union activist who cannot be charged with a serious violation of basic labour obligations and using a trade union function as a kind of protective umbrella against justified labour-law sanctions. In the justification for the judgement, it was declared that, in the event of a breach of the formal provision for termination of an employment relationship under this procedure, resulting from the lack of consent of the establishment trade union organisation to terminate the employment relationship with a trade union official, the labour court is entitled, in accordance with established law, to order compensation in lieu of reinstatement. 45
Article 8 of the Act of 3 December 2010 on the Implementation of Certain European Union Provisions on Equal Treatment (Journal of Laws No 254, Item 1700, as amended) prohibits the unequal treatment of individuals on grounds of sex, race, ethnic descent, nationality, religion, religious denomination, world view, disability, age, or sexual orientation, including with respect to joining and working in trade unions, employers’ organisations, and enjoying the rights of members of such organisations. Everyone whose right to equal treatment has been violated has the right to compensation as laid down in the Act of 23 April 1964, the Civil Code (Journal of Laws of 2016, Item 380, as amended).
Out-of-court mechanisms for dealing with collective bargaining by employees include the possibility of initiating collective labour disputes between employees and their employer or employers concerning working conditions, remuneration, or social benefits, and the rights and freedoms of trade union workers or other groups entitled to form trade unions, under Article 1 of the Act of 23 May 1991 on Solving Collective Disputes (Journal of Laws of 2015, Item 295, as amended). Moreover, in light of the provisions of Articles 240 § 2 and 2411 Pt. 3 of the Labour Code, the parties to a collective agreement may, within the framework of the freedom of association, establish procedures for interpreting the contents of the agreement and for settling disputes between the parties in this regard. The parties to the agreement may determine procedures for settling disputes related to the subject of negotiations to conclude a collective labour agreement, or other controversial issues that may arise during the negotiations (Article 2413 § 2 of the Labour Code).
Pillar III. Access to remedy
3. National Labour Inspectorate (PIP): an institution that oversees business and human rights [page 45]
The National Labour Inspectorate is an authority established in order to oversee and verify the observance of labour law, in particular occupational health and safety rules and regulations.
During the implementation of its tasks, the National Labour Inspectorate cooperates with specialised authorities for supervision and inspection of working conditions, trade unions, employers’ organisations, workers’ self-government authorities, workers’ councils, social labour inspections, public employment services and state administration authorities, particularly authorities for overseeing and inspecting working conditions, the Police, the Border Guard, customs authorities, revenue offices, and the Social Insurance Institution, as well as local self-government authorities.
The statutory tasks of the National Labour Inspectorate include, in particular:
– oversight and verification of labour law compliance by enterprises, in particular occupational health and safety rules and regulations;
– inspection of goods placed on the market or commissioned for use as regards their compliance with essential or other requirements of occupational health and safety;
– taking actions aimed at preventing and reducing hazards in the working environment;
– lodging complaints and participation in legal proceedings for the establishment of an employment relationship before labour courts, if the legal relationship between the parties fulfils the criteria of an employment relationship;
– providing technical guidance and legal advice.
– cooperation with other European Union Member States’ authorities competent for the supervision of employment and working conditions.
The National Labour Inspectorate inspects the legality of employment and other paid work (also by foreigners), payment of contributions to the Labour Fund, and running employment agencies in accordance with the terms and conditions laid down in the laws governing the promotion of employment and labour market institutions.
Some of the PIP’s competencies derive from specific provisions. These tasks include:
– recommending that the competent Social Insurance Institution’s organisational unit increases the accident insurance premium rates (set for the next premium year) if a labour inspector finds serious violations of the health and safety regulations during two consecutive inspections;
– registration of an establishment’s collective labour agreements;
– ordering the establishment of occupational health and safety services or an increase in the number of service staff, if justified by occupational hazards discovered during an inspection. The authorities from the National Labour Inspectorate take part in the decision-making (granting permission) process on the organisation of permanent work sites below ground level and on the use of electrical lighting only in permanent work areas.
In addition to the above-mentioned tasks, the National Labour Inspectorate has an important impact on the working conditions of individuals performing work on a basis other than an employment relationship and on enforcement of the payment of the minimum hourly rate for mandate contracts (Article 734 of the Civil Code) or service contracts to which the provisions on mandate apply (Article 750 of the Civil Code), which are applicable to natural persons who do not conduct an economic activity and to natural persons engaged in an economic activity acting individually and personally while performing contractual tasks.
Powers of PIP authorities
The National Labour Inspectorate’s bodies include: labour inspectors, district labour inspectors, and the Chief Labour Inspector.
Labour inspectors have the right to conduct an inspection with respect to the observance of the provisions of labour law, and in particular occupational health and safety, without prior notice at any time of day or night.
In the event that a violation of the regulations concerning labour law is found, the competent labour inspector is entitled to issue legal remedies (improvement notices, oral instructions, oral and written decisions) aimed at removing any irregularities (including the possibility of ordering the cessation of operations or operations of a particular nature).
In addition, the powers and competencies of a labour inspector include:
– imposing fines in punishment proceedings and lodging motions with a court of law to punish the parties responsible for violation of employee rights as specified in the Labour Code and Petty Offences Code referred to in Articles 119-123 of the Act of 20 April 2004 on the Promotion of Employment and Labour Market Institutions, as well as for other offences, when provided for by law, and to participate in these cases as public prosecutors;
– imposing fines on entities performing carriage by road or other activities related to this kind of carriage in violation of the obligations or conditions of carriage by road. The PIP authorities enforce the decisions issued by administrative execution.
Supervisory and inspection activities
The oversight and inspection activities of the National Labour Inspectorate in the observance of labour law, in particular the provisions and regulations of occupational health and safety, focus on eliminating or at least significantly reducing occupational hazards in the work environment. Oversight and inspection activities are carried out in accordance with an annual and long-term (three-year) action plan, based on an analysis of the results of previous inspections, as well as the Parliament’s comments and observations and recommendations by trade unions, employer organisations, ministries and central offices, authorities supervising and inspecting working conditions, and research institutes.
Priority is given to inspections of industries and establishments with a particularly high occupational risk associated with the presence of factors which are dangerous, harmful, and damaging for health. Moreover, inspection activities are undertaken as a result of requests for inspection by social partners and other public administration authorities, as well as complaints and petitions addressed to the Inspectorate’s organisational units.
One of the tasks of the National Labour Inspectorate is to investigate the circumstances and causes of accidents at work. Fatal, serious, and collective accidents are investigated, as reported by employers (pursuant to Article 234 § 2 of the Labour Code), as well as by other authorities.
The National Labour Inspectorate actively supports employers’ involvement in issues concerning safety and working conditions, as well as employee participation, both in its oversight and inspection capacity and in its preventive and promotional activities. These include seminars, conferences, and training meetings with employers involved in permanent workplace safety improvement programmes (enhanced oversight in industrial establishments, regular inspections in construction, rail infrastructure, forestry, and mining sectors).
Tasks of the National Labour Inspectorate in the field of combating human trafficking, and, in particular, forced labour
National Labour Inspectorate services play an extremely important role in combating trafficking in human beings, including forced labour. The National Labour Inspectorate is included in a group of institutions and organisations carrying out tasks to counteract this phenomenon, as part of their competencies. At the central level, a representative of the Chief Labour Inspectorate participates in meetings of the inter-ministerial Team for Combating and Preventing Trafficking in Human Beings and in proceedings of the Unit’s Working Group. The National Labour Inspectorate carries out tasks under the National Plan and reports annually on their implementation to the Ministry of the Interior and Administration. In addition, selected labour inspectors from district labour inspectorates participate in the work of Voivodship Units for Preventing Trafficking in Human Beings.
Within the framework of the supervisory and inspection tasks, in particular when inspecting the legality of employment and the assignation and performance of work by foreign nationals, labour inspectors check whether there are indications of forced labour at an inspected establishment, a phenomenon which is characterised by taking control over an employee and results in a violation of human rights. In order to evaluate and identify potential victims of trafficking, a number of indicators are used (developed by both ILO and the Ministry of the Interior and Administration), i.e., the circumstances of taking up and performing work, which may indicate that the employee is a victim of this type of crime. The signing of an agreement between the
Border Guard Chief Commander and the Chief Labour Inspector in 2008 and then in 2015 served as an instrument to strengthen the capacity of labour inspectors to respond to the illegal employment of foreign nationals and to the phenomenon of trafficking in human beings. The agreement offers a basis for cooperation in undertaking joint inspections by Border Guard officers and labour inspectors, and for exchanging information on violations of the law concerning foreign nationals, including cases of their illegal employment. Effective combating of crimes of trafficking in human beings for forced labour is also possible thanks to mechanisms of cooperation and exchange of information between National Labour Inspectorate units and prosecutors’ offices, at both the central and local levels, also on the basis of an agreement concluded in 2014. Training courses are conducted at the National Labour Inspectorate Training Centre in Wroclaw to help improve the qualifications of the inspectorial staff involved in the activities related to the issues in question. The procedure for handling complaints by PIP authorities is an important tool in the prevention of trafficking in human beings for forced labour and violations of labour rights of foreign nationals. Complaints that suggest the need for immediate action are examined first.
Tasks of the National Labour Inspectorate in the field of combating discrimination in access to employment and in relation to the provision of services by employment agencies
Respecting the dignity and other personal interests of employees is a fundamental duty of employers. This also includes the prohibition of unequal treatment and discrimination at work. The activities of the National Labour Inspectorate to prevent and combat unequal treatment and discrimination in labour relations include the implementation of oversight and inspection measures, as well as prevention and information. Oversight and inspection activities are carried out as a result of, among other things, complaints, notices, and indications of irregularities sent to the National Labour Inspectorate, but also within the framework of inspections carried out in accordance with the Inspectorate’s action programme (thematic inspections), where issues of equal treatment and discrimination are addressed.
Inspections of employment agencies include audits of the implementation of the prohibition of discrimination on grounds of sex, age, disability, race, religion, ethnic origin, nationality, sexual orientation, political beliefs, and religious denomination or trade union affiliation of individuals for whom the agency sought employment or other paid work.
By verifying compliance with the law in relation to temporary workers, labour inspectors make sure that there has been no violation of the prohibition on unequal treatment of temporary workers—with respect to working conditions and other conditions of employment—as compared to workers employed by the employer in the same or a similar position. As part of inspections concerning the legality of employment, labour inspectors examine issues related to respecting the principle of equal treatment and non-discrimination in access to employment. These activities are aimed at disclosing offences with regard to a refusal to employ a candidate for a vacant position or place of vocational training on the basis of their gender, age, disability, race, religion, nationality, political beliefs, ethnic origin, religious denomination, or sexual orientation. Most often, they involve the examination of job advertisements in which employers post illegal criteria for people who apply for employment, where the nature of the work does not justify their use (e.g., relating to gender or age).
Labour inspectors also check compliance with the principle of equal treatment of foreign nationals in terms of working conditions and other conditions of employment,
compared to Polish citizens employed in corresponding or similar positions. Promotion of the idea of equal treatment and non-discrimination in the labour market, especially with respect to foreign nationals, is supported by projects co-financed from European funds, as well as PIP publications (leaflets, brochures, guides) addressed to a wide audience.
Receiving, processing, and handling complaints and requests before the PIP
Apart from negligence or inadequate performance of tasks by the authorities or employees of the National Labour Inspectorate, complaints may deal, in particular, with breaches of the rule of law or interests of complainants, lengthy or bureaucratic handling of cases, violations of labour law, including occupational health and safety regulations and the legality of employment.
Complaints and applications are accepted by all district labour inspectors and the Chief Labour Inspectorate. They may be submitted in writing by mail, fax, and electronic means (sample complaint and application forms are posted on PIP websites), and also orally for the record.
Planned changes aimed at enhancing the inspection powers of the PIP
Taking into account that the National Labour Inspectorate applies a different inspection procedure to entrepreneurs than to other entities, and that the rights of the former group of inspected entities may significantly affect the findings and effectiveness of actions undertaken, it is necessary for the Ministry of Economic Development to analyse, in cooperation with the National Labour Inspectorate, the rules governing inspections of entrepreneurs under the Act on Freedom of Economic Activity in terms of their impact on the operations and effectiveness of the PIP and to shape them in such a way as to ensure maximum effectiveness of inspections and compliance with international agreements in force in Poland.
One of the elements that ensure respect for the rules is the application of sanctions for violations identified during inspections. In the current legal situation, these penalties are inadequate in comparison with the benefits of illegal employment, which is particularly important as regards undeclared work. Accordingly, the Ministry of Justice, in cooperation with the Ministry of Family, Labour and Social Policy and the National Labour Inspectorate, will review violations of the rights of individuals engaged in gainful employment and the amount of penalties for individual offences and examine the possibility of tightening sanctions (including as part of proceedings on fines), or introducing administrative sanctions, in lieu of liability for offences.
Pillar III. Access to remedy
4. OECD National Contact Point [page 49]
One of the remedies available to victims of human rights abuses by multinational enterprises is the possibility of notifying the OECD National Contact Point (OECD NCP) about the situation.
The OECD NCP’s main task is to promote and disseminate the OECD Guidelines for Multinational Enterprises and, in particular situations, conduct proceedings to resolve conflicts that may arise in the course of the implementation of these Guidelines, also with respect to human rights.
The OECD Guidelines are recommendations for the standards of responsible business conduct addressed by governments to enterprises whose business extends in any way
beyond the boundaries of one country. The Guidelines should be respected by enterprises that are based in one of the countries that implement the Guidelines and wherever they conduct their economic activity. For this reason, it is worth ensuring that the Guidelines are available to all entrepreneurs.
The OECD National Contact Points operate in all 35 OECD countries and 13 non-OECD countries that implement the OECD Guidelines for Multinational Enterprises (Argentina, Brazil, Egypt, Jordan, Lithuania, Colombia, Costa Rica, Morocco, Peru, Romania, Tunisia).15
In Poland, the OECD NCP was established in 1998 within central administration structures (the Ministry of Treasury and afterwards the Ministry of Economy). Since 2001, the OECD NCP had been operating within the Polish Information and Foreign Investment Agency (PAIiIZ). In June 2016, in order to unify public administration operations in the field of CSR and responsible business conduct (RBC), the OECD NCP was transferred from the PAIiIZ to the Ministry of Economic Development. The website of the Ministry of Economic Development provides detailed information about the OECD Guidelines for Multinational Enterprises and OECD NCP activities (http://www.mr.gov.pl/strony/zadania/wsparcie-przedsiebiorczosci/spoleczna-odpowiedzialnosc-przedsiebiorstw-csr/krajowy-punkt-kontaktowy-oecd/). To file a notification of an alleged non-observance of the OECD Guidelines for Multinational Enterprises, one should complete the appropriate form, available on the website of the Ministry of Economic Development, in particular referring to the specific provisions of the OECD Guidelines to which the notification applies, and provide a detailed description of the activities of the enterprise that caused the non-observance of the OECD Guidelines in the above areas. Upon receipt of the notification, the case is subject to a detailed examination by the OECD NCP, which may refer the case to mediation if it is accepted by the NCP.
C. Pillar III. Access to Remedy [page 23]
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.
- 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 he 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.
3. Access to remedy
Legal remedies provided by the State [page 27]
(…) The different ombudsmen monitor compliance with human rights. Any person who feels that they or anyone else has been treated incorr-ectly 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 Parliamentary Ombudsmen supervise the application of laws and other statutes in public activities. According to their instructions, supervision also covers “other individuals whose employment or assignment involves the exercise of public authority, insofar as this aspect of their activities is concerned” and “officials and those employed by public enterprises, while carrying out, on behalf of such an enterprise, activities in which through the agency of the enterprise the Government exercises decisive influence”.
Certain supervisory functions are also exercised by the Chancellor of Justice, who is appointed by the Government. The duties of the Chancellor of Justice include examining complaints and settling claims for damages directed at the State.
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.
The Ombudsman for Children in Sweden is a government agency whose main task is to represent the rights and interests of children and young people, based on the UN Convention on the Rights of the Child. It monitors society’s compliance with the Convention and drives implementation in municipalities, county councils, regions and government agencies. It is responsible for drawing attention to deficiencies in the application of the Convention and proposing amendments to laws and ordinances. The Children’s Ombudsman submits an annual report to the Government, containing analyses and recommendations to improve the situation of children and young people. The Ombudsman does not monitor other government agencies and, by law, is not able to intervene in individual cases.
Furthermore, the OECD Guidelines for Multinational Enterprises provide access to remedy through the National Contact Points (NCP). All countries adhering to the OECD Guidelines are obliged to set up their own NCP to support and promote the Guidelines. Sweden’s NCP is a tripartite collaboration between the State, the business sector and employee organisations. The State is repre-sented by several ministries at the Government Offices and the Ministry for Foreign Affairs is the convener. The business sector is repre-sented by the Confederation of Swedish Enterprise and the Swedish Trade Federation, and employee organisations by the Swedish Trade Union Confederation, the Swedish Confederation of Professional Associations, the Confederation of Professional Employees, Unionen and IF Metall. As the Guidelines are voluntary, the NCP has no competence to issue any sanctions. 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.
Annex: Measures taken [page 21]
In 2013, the Swedish Government adopted a platform for Swedish action on corporate social responsibility (CSR). The issue of business and human rights has received considerable attention in recent years. The following examples describe some measures already taken in accordance with this policy.
The State as actor
- Sweden has published Swedish translations of the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises on the government website.
- Sweden spreads information and knowledge about CSR via the National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises and via public diplomacy. The NCP has handled four notifications since 2012. The NCP’s main roles are to handle notifications and promote and provide information about the OECD Guidelines for Multinational Enterprises.
Annex: Measures planned
How can the State support the business sector? [page 28]
The Ministry for Foreign Affairs is to examine the possibility of strengthening the Swedish National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises. The NCP’s main role is to handle notifications but it is also meant to promote and improve awareness of the OECD Guidelines for Multinational Enterprises. The NCP is also intended to increase contacts and collaboration with NCPs in non-OECD countries.
5.8 Pillar 3: access to remedy
5.8.3 Operational principles: state non-judicial grievance mechanisms [page 38]
Guiding Principle 27
State non-judicial grievance frameworks can be an important factor in gaining remedy for human rights abuses. They enable the parties to identify solutions through dialogue, without what are often lengthy and costly court proceedings.
The federal government will employ the following policy instruments (PI) to implement Guiding Principle 27:
PI48 National Contact Point for the OECD Guidelines for Multinational Enterprises (NCP)
The states signatory to the OECD Guidelines for Multinational Enterprises are obliged to set up a non-judicial grievance mechanism in the form of an NCP. Submissions may be made to the NCP where multinational enterprises based in one of the signatory states are accused of failing to comply with the OECD Guidelines, which since their 2011 update also include a chapter on human rights.
The Swiss NCP forms part of SECO, but involves the relevant federal agencies in handling submissions, and receives advice on its strategic orientation and the application of the OECD Guidelines from the multi-stakeholder NCP Advisory Board.
The Federal Council regards the current practice of the Swiss NCP as appropriate and will continue to operate it in its current form.
PI49 Dispute resolution support from representations abroad
In recent years, certain representations abroad have helped companies and persons affected by human rights abuses to resolve their conflicts at the negotiating table. They have done so on an ad-hoc basis, but the federal government plans during the current reporting period to examine the possibility of Swiss representations abroad providing greater and more systematic support in resolving disputes.
The Uk 2013 NAP
UK Government and access to remedy for human rights abuses resulting from business activity
Finally, the UK National Contact Point (NCP) considers allegations of non compliance by UK companies with the OECD Guidelines for Multinational Enterprises. The NCP will seek to mediate an agreement between the parties. But where this is not possible, a determination of whether the enterprise has acted inconsistently with the Guidelines is published and available for public dissemination. http://www.bis.gov.uk/nationalcontactpoint
The UK 2016 updated NAP
4. Access to remedy for human right 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.
Box: Case study from NCP – World Wildlife Fund (WWF) & SOCO International Plc, June 2014 [page 23]
WWF’s complaint alleged that SOCO’s oil exploration activities in Virunga National Park (Democratic Republic of Congo – DRC) did not contribute to sustainable development and that this conduct was prohibited under existing International agreements and DRC law. The activities specifically risked adverse impacts on the local communities, the environment and wildlife. This case had aroused considerable International media attention. The UK NCP accepted the complaint and asked both parties to take part in professional external mediation in London which resulted in an agreed joint statement. As part of the statement, SOCO agreed that they will not undertake or commission any exploratory or other drilling within Virunga National Park unless UNESCO and the DRC government agree that such activities are not incompatible with its World Heritage status. They also stated that “when we undertake human rights due diligence, the processes we adopt will be in full compliance with international norms and standards and industry best practice, including appropriate levels of community consultation and engagement on the basis of publicly available documents.” The full joint statement and NCP Final assessment published in June 2014 can be seen at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/330392/bis-14-967-uk-ncp-final-statement-following-agreement-reached-in-complaint-from-wwf-international-against-soco-international-plc.pdf More details on each complaint case which UK NCP have received can be found via the link to the Initial & Final assessments page which lists cases in chronological order https://www.gov.uk/government/collections/uk-national-contact-point-statements
Providing Access to Remedy
Outcome 5.1: Exploring and Enhancing Platforms for Remedy [page 23]
Improving the Performance of the USNCP for the OECD Guidelines: Delivering on the June 2015 G-7 Leaders’ Summit Declaration, the USNCP commits to undergo a peer review in the fall of 2017 contingent on OECD Secretariat availability. The USNCP will publish a 2017 outreach plan in early 2017, which will include outreach to stakeholders outside of the United States. By 2017, the USNCP will implement procedures to reduce barriers for stakeholders who would like to engage in the USNCP process but do not speak and/or read English. The USNCP facilitated its first-ever successful mediation in 2015 and two successful mediations as of June 2016. By 2016 the USNCP also implemented 97 percent of the recommendations of its Stakeholder Advisory Board’s 2014 report. The mandate of the Stakeholder Advisory Board to the USNCP will be updated to further address priorities espoused in this NAP. Implementing Agency or Department: State