Business and Human Rights: a Survey of NHRI Practices

Business and Human Rights: A Survey of NHRI Practices

Results from a survey distributed by the Office of the United Nations High Commissioner for Human Rights

Preface

This document summarizes the results of a survey distributed to National Human Rights Institutions (NHRI) by the Office of the United Nations High Commissioner for Human Rights in July 2007. The survey aimed to provide the United Nations Secretary General’s Special Representative on Business and Human Rights with background information on the mandates and capacities of NHRIs to manage corporate-related grievances and issues. To date, 43 institutions have responded to the survey. The survey will be redistributed and institutions will have another opportunity to submit responses. In addition, corrections and further inputs from current respondents are welcome. The deadline for receipt of additional surveys and inputs is 11 July 2008. Responses will be incorporated in a second version to be released later this year.

A. Survey Respondents

Antigua and Barbuda / Hungary / Philippines*
Argentina* / Jordan* / Puerto Rico
Australia* / Kenya* / Republic of Korea*
Azerbaijan* / Luxembourg* / Romania
Belgium / Mauritius* / Rwanda*
Bolivia* / Mongolia* / Slovakia
Canada* / Morocco* / Spain*
Croatia / The Netherlands / Sweden*
CzechRepublic / New Zealand* / Switzerland
Denmark* / Niger* / Togo*
Egypt* / Nigeria / Trinidad and Tobago
Finland / Northern Ireland (UK)* / Uzbekistan
France* / Norway* / Zambia*
Germany* / Paraguay*
Greece* / Peru*

* Indicates those institutions that are Paris Principle Accredited (see

B. Survey Questions

Note that many questions additionally asked for descriptions, examples, and written materials.

1. Has your institution developed any tools to raise awareness or to advise companies on human rights (training programmes, codes of conduct, etc.) or to advise local communities when dealing with companies?

1. Is your institution competent to handle complaints directly lodged against companies?

If so, please answer the following questions:

1. What are the admissibility requirements and who can bring the complaint?

1. As a NHRI, do you have the power to:

□ Investigate the complaint (e.g. on-site investigations or visits, subpoena of files, reports or other documents of evidence; calling for witnesses, etc.)?

□ Use specific processes to resolve a dispute? (e.g.: trials, hearings, legal assistance, dispute resolution such as mediation or conciliation, adoption of resolutions, etc.)?

□ Order redress in favour of persons whose rights have been negatively impacted by companies (monetary compensation, verbal or written apologies, recommendations to the company in order to prevent the recurrence of the same or similar case, publication of a report, release of public statements, etc.)?

□ Follow up to ensure compliance with any outcomes ordered or agreed upon during the dispute settlement process?

□ Enforce the outcomes (or pass them to a judicial authority for enforcement) ordered or agreed upon by the parties in case of non-compliance?

□ Refer the case to a public prosecutor if a complaint raises criminal matters?

□ Disseminate the findings of your work, including findings related to companies, through your annual report or any other medium?

□ Submit opinions, recommendations, proposals or reports to the relevant authorities concerning companies?

1. Could you provide concrete examples of typical cases you have dealt with?
2. Could you please specify which kind of companies you are competent to deal with (privately owned, publicly listed or State owned or controlled)?
3. Could you specify what types of rights feature most often in complaints against companies and if there are any patterns in terms of the sectors to which respondent companies belong?
4. Can parties to the dispute appeal the decision to a judicial or executive body?

g.Approximately how many complaints regarding allegations of abuses committed by companies did you receive in each of the past four years?

3. Is your institution competent to deal with acts of companies through means other than formal complaints mechanisms?

1. If your institution is not competent to deal with complaints lodged directly against companies, do you have examples of situations or complaints where companies are involved in alleged human rights violations but for which the complaint has been brought against the State?

1. Does your institution have any monitoring mechanisms in place to assess the impact of companies on human rights on an on-going basis?

1. Does your institution have the power to propose changes and amendments to national legislation and/or policies?

1. Would your institution be interested in attending a dialogue with other similar institutions from other States on ways to address and adjudicate effectively the human rights impacts of transnational corporations and other business enterprises?

c. SUMMARY OVERVIEW OF RESULTS BY CATEGORY

Colour key / Scope for handling complaints with regard to companies / NHRIs / Page No.
NO COMPLAINTS MECHANISMS WITH REGARD TO COMPANIES / Azerbaijan* / 9
Belgium / 9
Croatia / 12
CzechRepublic / 12
Finland / 15
France* / 15
Germany* / 16
Greece* / 16
Luxembourg* / 19
Morocco* / 20
Northern Ireland (UK)* / 23
Norway* / 24
Switzerland / 33
Zambia* / 36
COMPLAINTS MECHANISMS AVAILABLE WITH REGARD TO ANY RIGHTS BUT ONLY CERTAIN KINDS OF COMPANIES / Antigua and Barbuda / 6
Argentina* / 7
Bolivia* / 10
Hungary / 16
Peru* / 25
Puerto Rico / 27
Romania / 29
Spain* / 31
Togo* / 33
Trinidad and Tobago / 34
COMPLAINTS MECHANISMS AVAILABLE WITH REGARD TOANY KIND OF COMPANY BUT ONLY CERTAIN RIGHTS ISSUES / Australia* / 8
Canada* / 11-12
Denmark* / 13-14
Mauritius* / 20
The Netherlands / 21
New Zealand* / 21
Republic of Korea* / 28
Slovakia / 30
Sweden* / 32
COMPLAINTS MECHANISMS AVAILABLE WITH REGARD TO ANY KIND OF COMPANY AND ALL RIGHTS / Egypt* / 14-15
Jordan* / 17
Kenya* / 18-19
Mongolia* / 20
Philippines* / 26
Niger* / 22
Nigeria / 23
Paraguay* / 24
Rwanda* / 29
Uzbekistan / 35

d. Results Grid

No complaints mechanisms with regard to companies
Complaints mechanisms available with regard to any rights but only certain kinds of companies, e.g., state owned enterprises and/or public service providers
Complaints mechanisms available with regard to any kind of company but only certain rights issues (mainly discrimination)
Complaints mechanisms available with regard to any kind of company and all rights
Country and name / Competency to handle business related complaints / Rights at issue / Tools for Addressing Complaints / Possibility to appeal decision / Nr. of complaints / Policy/Legislation—Advising power / Additional tools
Antigua and Barbuda
Office of the Ombudsman / Yes. The Ombudsman can handle complaints against a state owned or controlled company.
Any individual can lodge a complaint if other avenues for redress are exhausted. / Investigation: seeking information from various entities with similar practices, comparative analyses, holding hearings, making on-site visits
Specific processes to resolve disputes: hearings, expert consultations, mediation
Redress: The Ombudsman can make recommendations but does not have the power to enforce them
Follow-up on compliance: power to request compliance reports, on-site visits, referral to the Prime Minister in accordance with the Ombudsman Act
Submission of opinions, recommendations, etc: to the Government and the Parliament / No / Yes / No
Argentina
Defensoría del Pueblo / Yes. The Ombudsman has the power to pursue investigations into complaints from individuals against private companiesdelivering public services. / Economic, social or cultural rights. / Investigation:If needed, investigations can be undertaken, for example, concerning environmental pollution.
Specific processes to resolve disputes: The core function is mediation, and the requirement of public officials to remedy a problem.
Refer to Public Prosecutor: In the case of criminal acts, the ombudsman has to refer the case immediately to the public prosecutor.
Dissemination of findings: The Ombudsman produces an annual report on all his activities.
Submission of opinions, recommendations, etc: to Parliament. / No / Approx. 2000 per year from an average of 8000 received. / No / No
Australia
Human Rights & Equal Opportunity Commission (HREOC) / Yes. HREOC may take complaints from any person who claims to have been discriminated against on the basis of sex, race, age or disability by any private company under federal discrimination laws. The alleged discrimination must be in an area covered by one of those laws, e.g., employment, provision of goods and services, access to premises, education, accommodation, sport, etc.
In addition, under the HREOC Act, a person can also make a complaint to the HREOC against a private actor for discrimination on the basis of a criminal record, religion, sexual preference, social origin, trade union activity and other protected grounds. Complaints may also be lodged against a private company alleging a breach of human rights where it has acted on behalf of the Commonwealth of Australia, e.g., where a private company operates a prison that holds Commonwealth prisoners.
In addition to dealing with private companies, HREOC may deal with incorporated and unincorporated associations and state-owned companies. / HREOC can only handle complaints related to acts of discrimination. Complaints mainly relate to disability discrimination in employment, sex discrimination in employment and race discrimination in the provision of goods and services. / Investigation: HREOC can compel the production of information and documents from private companies; can arrange site visits; and, in employment discrimination cases where the President of HREOC has the power to determine a matter, witnesses can be called.
Specific processes to resolve disputes: Disputes are generally resolved through alternative dispute resolution; HEROC has a statutory conciliation function. In employment discrimination cases where the President of HREOC has the power to determine a matter,this may be done through an oral hearing.
Redress: In employment discrimination cases, HREOC can recommend that the respondent company pay compensation, issue an apology, change its policy or practice, etc.
Follow-up on compliance: In cases regarding complaints made under the HREOC Act, HREOC can submit a report to the federal Attorney-General recommending actions to be taken by one or more parties. However, HREOC cannot compel compliance with recommendations made in such reports.
Dissemination of findings: HREOC disseminates information about complaint findings and resolved matters through it annual report, its website, conferences attended by private companies, direct mailings to employer representative groups, and the incorporation of information into resources developed for private companies.
Submission of opinions, recommendations, etc: See Follow-up on compliance. HREOC can make recommendations regarding companies to Government, Parliament, and the Attorney-General as part of its education, public awareness and general inquiry functions. / Yes. To a Judicial Body. / 2004: 1100
2005:
1200
2006:
1300
2007:
1600 / Yes. HREOC is able to examine existing legislation and, when requested to do so by the relevant Minister, is able to examine proposed legislation to determine whether the legislation is inconsistent with or contrary to any human right. HREOC reports the results of such examinations to the Minister.
HREOC also has the power to report to the federal Attorney-General on laws that should be passed or actions that should be taken by the federal government on matters relating to human rights. The Attorney-General is obliged to table any reports in Parliament within 15 parliamentary sitting days. / HREOC may consider applications made by companies for specific exemptions under federal anti-discrimination laws; and occasionally intervene in court proceedings involving human rights complaints lodged against companies.
Promotional Tools: HREOC has developed human rights materials for employers, including guides on anti-discrimination and harassment in the workplace and accessibility for persons with a disability. These include fact sheets, codes of practice, best practice guidelines and other resources. HREOC has also undertaken policy work in areas of maternity leave, employment of people with disabilities, land negotiations, and the role of detention service providers.
HREOC has also undertaken work to raise awareness of rights-related issues regarding resource development on Indigenous land in local communities and in the Australian corporate sector. This work has included facilitating the development of a set of principles by a forum of indigenous people from Australia’s major mineral resource regions.
Azerbaijan
The Office of the Commissioner for Human Rights (Ombudsman) / No. / Yes. The Ombudsman may submit motions with regard to the adoption or review of laws. / The Ombudsman is able to appeal to the Inspectorate in the Ministry of Labour and Social Protection to investigate a labour related case.
Monitoring of Company Activities: TheOmbudsman monitors the climate around labour issues. The Office’s annual reports reflect business and human rights concerns.
Promotional Tools: The Office offers legal education to the public on human rights, including to company representatives.
Belgium
Center for Equal Opportunities
and Opposition to Racism / No.
Bolivia
Defensor del Pueblo / Yes. The Ombudsman can handle complaints against private entities supplying public services. In practice, the majority of complaints have related to companies providing the basic services of: telecommunications, drinking water and sewage, electricity, and public transport.
Complaints have also been received against the national rail, television, and mail companies. The ombudsman also has oversight of the two state pension funds responsible for long term social security.
Complaints are not admissible where they: 1) are made in bad faith or there is lack of evidence, 2) relate to a matter pending in the courts, 3) would harm the legitimate rights of third persons, 4) are made against individuals that fall outside of the competence of the ombudsman, 5) are made more than one year after the complainant became aware of the abuse, and 6) are from an anonymous complainant. / In the mining or petrol/gas sector, typical complaints involve rights to a healthy environment, private property and prior consultation.
With regard to private companies providing public services, typical complaints relate to rates, connection to or interruption of services. / Investigation: The Ombudsman or his staff can approach any administrative body to obtain the information necessary to carry out their functions and cannot be refused access to any records or documentation related to the activity or service under investigations.
Specific processes to resolve a dispute: dialogue, facilitation, and mediation.
Redress: In the case of investigations, the Ombudsman issues recommendations, suggestions, and/or a reminder to public authorities of their legal duties.
Follow-up on compliance: The authorities are required to inform the Ombudsman of what measures they have taken to remedy the problem. In most cases there is follow-up, though not exhaustive, on the implementation of agreements reached through mediation.
Dissemination of findings: Annual report to Congress.
Refer to Public Prosecutor: The Ombudsman can refer the case to the Public Prosecutor in two situations: a) when the case relates to the administration of justice or constitutes a crime; b) when the acts or omissions of a public authority or service provider prevent or obstruct the Ombudsman in the legitimate exercise of his functions.
Submission of opinions, recommendations, etc: Following an investigation that reveals violations of rights, the Ombudsman provides recommendations to the legally competent authorities, in most instances, the oversight bodies for sectoral regulation. / Yes, to a judicial organ and to the Supervisor of the Sectoral Regulation System. ( / 2004: 115 out of 11,691
2005: 115 out of 13,093
2006: 148 out of 15,949 / Yes. The Ombudsman has the power to propose modifications of laws, decrees and non-legal resolutions related to human rights. / Promotional tools: The Ombudsman’s office has organised a campaign to raise public service users’ awareness of their rights and how to make claims for alleged breaches of those rights.
The Ombudsman initiated the creation of consumer protection offices both within public service companies and in their sectoral oversight bodies.
Canada*
Canadian Human Rights Commission / Yes. The Commission can receive complaints alleging discrimination by any company that provide services across provincial borders and therefore come under federal jurisdiction, e.g., airlines, trucking firms, rail, bus, banking institutions.
Any individual that is a Canadian citizen or who is legally present in Canada can file a complaint. In certain cases, a third party other than the person who suffered from discrimination may file the complaint. If a complaint falls under provincial jurisdiction, then a complainant is referred to the appropriate provincial human rights commission. All potential complaints are assessed for their admissibility on either one or more of the 11 prohibited grounds of discrimination in employment or provision of service as outlined in the Canadian Human Rights Act (CHRA) or the Employment Equity Act. / There are 11 prohibited grounds of discrimination.In 2006, 41% of cases were on the ground of disability; sex: 16%; national or ethnic origin: 10%; race: 10%, age: 7%; family status: 5%; colour: 4%; religion: 3%; sex. Orientation: 3%; marital status: 1%. / Investigation: on-site investigations or visits, subpoena of files, reports or other documents of evidence, calling for witnesses
Specific processes to resolve a dispute: Alternative Dispute Resolution, including mediation, conciliation.
Redress: The Commission can obtain redress through its alternative dispute resolution processes(mediation and conciliation). Through Minutes of Settlement agreed upon and signed by both parties the complainant may receive monetary compensation, verbal or written apologies, recommendations to the organization in order to prevent the recurrence of the same or a similar case, training of staff, lost wages, reinstatement in a position, policy changes or putting new procedures in place.
The Commission cannot itself order redress. Only the Canadian Human Rights Tribunal can do so after conducting hearings and making a finding of discrimination. The Commission refers complaints to the Canadian Human Rights Tribunal when it believes, based on its own investigation, that an inquiry into the complaint by the Tribunal is warranted. If the Tribunal makes a finding of discrimination, it can order redress from a list of remedies identified in the Canadian Human Rights Act.
Follow-up on compliance: The CHRC monitors the implementation of settlements reached.
Enforcement of the outcomes: If conditions in the Minutes of Settlement have not been met, the CHRC can file an application with the courts to enforce the agreement.The parties can also apply to the courts for enforcement on their own. The Tribunal enforces tribunal orders. / Yes, to a judicial body. / 2004: 308
2005: 301
2006: 316 / Yes, The Commission has the power to issue recommendations for legislative changes to the Canadian Human Rights Act / The Commission can encourage parties to settle disputes before a formal complaint is filed.