Bagian 8.0

Remediation and Grievance Mechanisms

When something has gone wrong and people are negatively affected as a result of the company’s actions, things need to be put right. Grievance mechanisms78, and other processes to provide remedy in such situations, are not new to companies. However, the systems that exist are typically for people inside the company, primarily employees, while the responsibility to respect human rights applies to all stakeholders that are negatively affected by a company’s activities or business relationships.

Grievance mechanisms can help provide remedy where a company has caused or contributed to a negative impact; they can also be important early warning systems for companies and can provide critical information for broader human rights due diligence processes.

Main companies divisions to be involved in the process

Human resources: May sometimes act as an intermediary between management and workers, including in grievances and disputes

Trade union or works council: Can function as trusted channel to receive and handle complaints; may support company in improving performance

Community relations: May serve as intermediary between the company and different external stakeholders affected by the company, or their legitimate representatives

Business operations: May interact with local communities and, therefore, are needed to resolve many complaints; can also be a source of complaints

Legal and compliance: Often runs existing whistle-blower procedures; understands legal considerations related to the handling of grievances.

Senior management: May receive some complaints directly; role in instilling accountability throughout the organisation

Bagian 8.1

Understanding remediation

In the Guiding Principles, the term ‘remediation’ is used to refer to the process or act of providing remedy. At its core, the concept of remedy aims to restore individuals or groups that have been harmed by a business’s activities to the situation they would have been in had the impact not occurred. Where this is not possible, it can involve compensation or other forms of remedy that try to make amends for the harm caused. This should not be confused with ‘remediation’ in the context of social audits, where the concept includes – and typically focuses on – forward-looking actions to prevent a non-compliance from recurring.

As the Guiding Principles set out, judicial remedy includes: “apologies, restitution, rehabilitation, financial or non-financial compensation, and punitive sanctions (whether criminal or administrative, such as fines), as well the prevention of harm through, for example, injunctions or guarantees of non-repetition”. These forms of remedy are relevant – or have equivalents in the case of punitive actions – also in the context of non-judicial mechanisms, with the exception of criminal sanctions.

Bagian 8.2

Taking full advantage of grievance mechanisms

Grievance mechanisms can play a critical role in meeting the responsibility to respect in two ways:

  1. They can support the provision of remedy where a company causes or contributes to negative impacts;
  2. They can enable problems to be addressed early before they escalate as well as helping to identify patterns over time, thus feeding directly into broader human rights due diligence.

Companies, and their stakeholders, often focus on the first role without due consideration of the second. This risks missing the useful function that grievance mechanisms can play, even where the company itself is not responsible for providing remedy. For example, they can alert companies to the need to apply pressure on a supplier to ensure that the supplier provides the appropriate remedy for harm it has caused. Of course, suppliers have their own responsibility to respect human rights and should have their own grievance mechanisms in place.

The following table provides some examples of typical grievance mechanisms that may have a role to play in addressing business-related human rights harms.

Overview of typical grievance mechanisms

 

LevelAccessible toExamplesTypes of issuesDriver of installation/adoption
InternalCompany-wideAll employees; may be open to external partiesHotline or whistle-blower procedureTypically fraud and corruption, broader ethics issues·       Corporate governance regulations

·       Business principles

Country, business unit or factoryEmployeesComplaints procedure or ‘persons of trust’ networkRelated to staff interaction (for example, harassment, intimidation)·       National legislation

·       Common business practice

Third partyCustomersCustomer support and complaintsComplaints related to warranty or service·       National legislation

·       Customer loyalty

NeighboursPhone number or neighbourhood councilPollution, noise, smell·       Good relations/’social licence to operate’
Local communityOperational-level grievance mechanism, community liaison officersImpact on livelihoods, pollution, distribution of benefits·       Early dispute resolution

·       Investor pressure

·       Financing requirement

ExternalIndustry or initiative mechanismVaries, but typically includes member company’s own workers, workers in the supply chainFair Labor Association’s third-party complaints procedureWorking conditions, living wage, or any alleged breach of initiative’s own standards·       Industry/ collaborative action

·       Level playing field

National Contact Points under the OECD Guidelines for Multinational EnterprisesAny individual or organisation (affected or not affected)All adhering countries required to establish oneAll issues related to the OECD Guidelines (including human and labour rights, environment, anti-corruption)·       OECD governments

·       Trade relations

·       Civil society

State-based mediation and arbitration bodiesWorkersUK: Advisory, Conciliation and Arbitration Service  South Africa: Commission for Conciliation, Mediation and ArbitrationUsually workplace-related issues·       Government regulation

·       Reducing pressure on the court system

CourtsEveryone subject to jurisdictionNetherlands: judicial systemAny issue subject to jurisdiction·       State obligation to provide access to remedy

Bagian 8.3

Mapping existing grievance mechanisms

Source: freepik

 

Many companies already have various grievance mechanisms for people within the company, whether formal or informal. These can include trade unions, whistle-blower policies, reporting mechanisms for issues such as sexual harassment, employee conflict management programmes, health and safety incident-reporting systems, and complaints to management.

A company should map the grievance mechanisms it already has in place to determine where gaps may exist. It should consider whether all the main stakeholder groups that could potentially be impacted by the company have access to a grievance mechanism – whether organised by the state, the company, an entity in its supply or value chain or otherwise – and in particular those groups that may fall between existing mechanisms, such as contract workers on company premises who cannot access the company’s mechanism but lack representation by a trade union through their direct employer. A company may not know what mechanisms its business partners or others have in place, but such a mapping can help highlight where it lacks knowledge.

Three questions for a gap analysis of grievance mechanisms

  1. ]Do the main stakeholder groups that could be affected by the company’s activities, including through its business relationships, have access to an effective grievance mechanism?If not: Who is responsible for providing remedy? What additional channels might be needed?
  1. Do current and planned grievance mechanisms align with the effectiveness criteria for grievance mechanisms? 
    How do you know? If not: How do they need to be improved?
  1. Do current and planned grievance mechanisms facilitate cumulative learning and improvement over time?
    If not: What needs to be done in order to enable this?

Bagian 8.4

Using the effectiveness criteria

The Guiding Principles include a set of effectiveness criteria for non-judicial grievance mechanisms that were piloted with companies as part of Ruggie’s mandate. They are summarised in the figure below.

(a)
Legitimate
enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes
(b)
Accessible
being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access
(c)
Predictable
providing a clear and known procedure with an indicative time frame for each stage, and clarity on the types of process and outcome available and means of monitoring implementation
(d)
Equitable
seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms
(e)
Transparent
keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake
(f)
Rights-compatible
ensuring that outcomes and remedies accord with internationally recognized human rights
(g)
Dialogue and engagement
consulting the stakeholder groups for whose use they are intended on their design and performance, and focusing on dialogue as the means to address and resolve grievances

Bagian 8.5

Considering how to extend or create mechanisms for external stakeholders

Existing grievance mechanisms may be extended to external stakeholders, or new mechanisms may need to be created if the company identifies gaps in its current approach. Options include:

Opening up existing mechanisms to non-employees

While existing mechanisms may not exclude external complainants, they are usually not published as such and/or are hidden on company intranets. Some companies explicitly open up their grievance mechanisms to particular groups, such as workers of contractors. Whistle-blower hotlines are also often made available to outside parties. When a company decides to take this step, it is important that it is published among the relevant groups in their own language, and where possible through trusted channels.

Considering international framework agreements

Some companies have chosen to enter into an agreement with the relevant international trade union confederation for company-wide implementation of labour and other standards. Many of these agreements contain provisions for the joint investigation and resolution of complaints and disputes related to the agreement, and for regular dialogue.

Engaging in multi-stakeholder initiatives

Some companies participate in multi-stakeholder initiatives that have their own grievance mechanisms, although these are not always open to third parties outside the initiative. Examples include the third-party complaints mechanisms of the Fair Labor Association and the Roundtable on Sustainable Palm Oil, and the internal procedures of the Voluntary Principles on Security and Human Rights (available only to members).

Participating in a mechanism for a specific sector

Because some grievances go beyond the activities or capacity of a single company, a joint effort can be a useful addition and a helpful pooling of resources. Examples include the hotline of the International Council of Toy Industries, and the grievance mechanism set up by the electronics industry in Mexico involving a local NGO and the relevant industry body, as well as global brands sourcing from local suppliers there.

Creating a grievance mechanism for community complaints

Project funders may require a company to develop a specific grievance mechanism for a high-impact project that can have potentially significant consequences for local communities around the project. There is growing experience from the extractive sector, in particular, about how to develop and implement such mechanisms more effectively.

Bagian 8.6

Improving performance of grievance mechanisms

There should be regular reporting on the functioning of the grievance mechanism, including up to senior management. A company can assess its mechanisms against the kind of key performance indicators set out in the table below.

Examples of key performance indicators (KPIs) on grievance mechanisms:

 

 

KPIInterpretation
A significant number of complaints or grievances are brought to the mechanism in the period after its establishment.Indicating both awareness of the mechanism’s existence and confidence that it provides a credible first avenue of recourse.
A reduction, over time, in the number of grievances pursued through other non-judicial mechanisms, NGOs or the media.Indicating both awareness of the mechanism’s existence and confidence that it can provide a credible and effective first avenue of recourse.
Over time, the number of grievances of the same or similar nature decreases.Indicating that staff are learning from past mistakes and adapting practices and/or operating procedures where appropriate.
Audits show a reduction in incidents of non-compliance with applicable standards.Indicating that grievance processes are contributing to the identification and remediation of non-compliance incidents.
A reduction in absenteeism and staff turnover and/or an increase in productivity among suppliers’/contractors’ workers.A partial indicator of reduced worker grievances and improved worker satisfaction, most relevant in relation to supply chains and contractors.
Standard operating procedures (SOPs) have been reviewed and amended where investigations reveal significant and repeat grievances despite staff following existing SOPs.Indicating that lessons for management systems are being learnt and integrated to reduce the likelihood of the same kind of grievances recurring.

Bagian 8.7

Common pitfalls to avoid

Taking the perspective of the company rather than the complainant

Company mechanisms are often designed solely from the perspective of the company and tend to focus more on stopping a violation of the business’s rules rather than remedying a situation. Grievance mechanisms need to be designed with a focus on the potential users of the mechanism if they are to be truly effective – and, ideally, they should involve those users in the design phase.

Ignoring the relationship with legal remedies

Operational-level grievance mechanisms are not a substitute for legal remedies; rather, they are meant to accelerate resolution of disputes and to avoid escalation by complementing legal remedies. Where judicial mechanisms are weak or corrupt, companies will need to think carefully about the implications of this for their grievance mechanism design.

Grievance mechanisms based on adjudication

It is crucial for the effectiveness of operational-level mechanisms that they are based on dialogue and mediation, not adjudication by the company. This because of the inherent problem with a company being not only the subject of a grievance, but also the final judge of the outcome. This can undermine perceptions of the legitimacy of the process and the company’s seriousness about handling stakeholder complaints.

company mechanisms are often designed solely from a company perspective and tend to focus more on stopping violations of business rules than improving the situation. The complaints mechanism needs to be designed with a focus on potential users of the mechanism if they are truly effective – and, ideally, they must involve these users in the design phase.

Bagian 8.8

Some suggestions for SMEs

Be open and talk to people

For smaller companies, simply talking to people who are or may be affected by your operations can be the simplest way to resolve problems. For individuals outside the company, a public email address or phone number to handle feedback and complaints can help ensure that you are creating a channel for any concerns.

Third-party service instead of own

Instead of their own hotlines, companies can use one provided by a third-party service that supports multiple companies. Clear Voice Hotline Service is one example of such a system.

Build on sector grievance procedures

Sector organisations often have their own grievance procedures that smaller companies can use. The Fair Wear Foundation has a complaints procedure for its members, which functions as a fall-back if they lack their own mechanisms.

References