TRADE UNION ADVISORY COMMITTEE TO THE OECD TUAC

TRADE UNION ADVISORY COMMITTEE TO THE OECD (TUAC) The OECD Guidelines for Multinational Enterprises and Supply Chains AN ACTIVE ROLE FOR TRADE UNIONS CGIL, CISL, ETUI and UIL 22 March 2016 1 Trade Union Advisory Committee to the OECD (TUAC)

Structure • Overview • Trade Union Cases • Resources

Opening § Who had heard of the OECD Guidelines for Multinational Enterprises (before being invited to this seminar)? § Who has used the OECD Guidelines for Multinational Enterprises?

Overview - Provide (non-binding) recommendations on Responsible Business Conduct for MNEs based on international standards - Signed by governments (46) – not by MNEs - Apply to MNEs registered or listed in countries that have signed the Guidelines, wherever those MNEs operate, as well as MNEs operating in the territory of those countries - Cover subsidiaries as well as suppliers, investors and other business partners of these MNEs - Apply to all categories of workers: employees, agency, temporary and seasonal workers (breakthrough in 2011 Update) - Include the responsibility for MNEs to undertake due diligence - Have a complaints mechanism – the National Contact Points

Overview OECD Guidelines for Multinational Companies 1. «The Guidelines are recommendations jointly addressed by governments to multinational enterprises. They provide principles and standards of good practice consistent with applicable laws and internationally recognised standards. » (Chapter I, paragraph 1)

Overview Chapters of the Guidelines I. III. IV. V. VIII. IX. X. XI. Concept and Principles General Policies Disclosure of Information Human Rights Employment and Industrial Relations Environment Combating Bribery, Bribe Solicitation and Extortion Consumer Interests Science and Technology Competition Taxation

Overview – Adhering Countries OECD Australia Hungary Poland Austria Iceland Portugal Belgium Ireland Slovak Republic Canada Israel Slovenia Chile Italy Spain Czech Republic Japan Sweden Denmark Republic of Korea Switzerland Estonia Luxembourg Turkey Finland Mexico United Kingdom France Netherlands United States Germany New Zealand Greece Norway

Overview – Adhering Countries Argentina Latvia Brazil Lithuania Colombia Morocco Costa Rica Peru Egypt Romania Jordan Tunisia Non-OECD

Overview – Adhering Countries – Adherence under discussion • Ukraine (about to sign), Kazakhstan – OECD membership negotiations • Russia (suspended) – “Enhanced engagement” (i. e. , cooperating with) • China, India, Indonesia and South Africa – Not likely to sign in the near future

Overview – NCPs National Contact Points - Governments that sign the Guidelines are required to establish National Contact Points (NCPs) to resolve issues arising under the Guidelines, including handling cases/complaints of breaches of the Guidelines - Complaints mechanism: unique characteristic - Trade unions and NGOs are able to file complaints against MNEs for their involvement in violations of the Guidelines around the world - NCPs provide a forum for dialogue and problemsolving through mediation

Overview – NCPs National Contact Points - Located in the adhering countries: » Not located at the OECD – All government-backed (TU Guide, P. 6, FIGURE 1. 2), • Majority based within government: – Italy: Monopartite, Ministry of Economic Development (MEDI); NCP Committee composed of governments, trade unions and business; – UK: Bipartite: Dept. Business/Department for International Development and Multi-stakeholder Board – France: Tripartite structure: government, trade unions and employers. • Minority are outside government (independent expert group) – Denmark, Netherlands, Norway

Overview – NCPs Filing Cases (TU Guide p. 8 (1. 11), p. 50 5. 4) – No complaints mechanism at the OECD – Complaints filed with the National Contact Points • If the violation takes place in a country that has signed the Guidelines – then the case should be filed with the host country NCP – E. g. , violation involving an Italian MNE in France » French NCP – E. g. , violation involving a French MNE in Italy » Italian NCP • If the violation takes place in a country that has not signed the Guidelines then the case should be filed with the home country NCP – E. g. , violation involving an Italian MNE in Bulgaria » Italian NCP

Trade union cases 179 trade union cases (1 per month)

Trade union cases – Trade union use of the Guidelines • 179 trade union cases (1 per month) - Refusal of union recognition and collective bargaining Victimisation of union leaders/union members Threat to relocate production during organising/bargaining Failure to consult during re-structuring on employment effects - Abusive use of precarious employment contracts (temporary and/or agency) to restrict trade union rights and recognition - Failure to provide adequate information for collective bargaining

Trade union cases

Trade union cases – Trade union use of the Guidelines • 179 trade union cases (1 per month) – By NCP

Trade union cases – Trade union use of the Guidelines • 179 trade union cases (1 per month) – By Host Country

Trade union cases – Trade union use of the Guidelines • 3 Italian cases – (Only TU case in China)

Trade union cases UNI v G 4 s – Trade union: UNI Global Union – MNE: G 4 S: security – Home country: UK – Host countries: DRC, Malawi, Mozambique, Nepal ØHome country NCP: UK – Issues: trade union rights/pay/working conditions – Provisions: right to trade union representation (IV 1. a), sustainable development (II. 1) – NCP Role: • Provided professional external mediation – 11 th December 2008: agreement: DRC, commitment to conduct union elections; Mozambique, to clarify issues regarding statutory workers' rights; Malawi, overtime pay to increase to at least 100% of normal wages and agreement made on communicating rights; Nepal, provident fund payments to be made on a monthly basis. – 16 th December, 2008: UNI and G 4 s signed a Global Framework Agreement.

Trade union cases IUF v Unilever – Trade union: IUF – MNE: Unilever (food - Brooke Bond and Lipton’s tea factory) – Home country: UK – Host country: Pakistan (Khanewal) » Home country NCP: UK – Issue: precarious work/abusive use of temporary contracts/agency work (22 v 723): – Provisions of the Guidelines: right to organise (V. 1 a) – NCP Role: • Provided professional external mediation • Led to an agreement between IUF and Unilever “ 1. The IUF and Unilever have agreed there will be a significant change in the model of employment at Khanewal based on a combination of directly employed permanent labour in non-seasonal manufacturing and contract agency workers (labour engaged through third party service providers) for ancillary, nonmanufacturing and seasonal positions. 2. Under the terms of this agreement, Unilever will establish 200 permanent positions at Khanewal. This is in addition to the existing 22 positions at this facility…” http: //www. bis. gov. uk/files/file 49308. doc

Trade union cases UNI Global Union and ITF v Deutsche Post DHL – Trade unions: UNI Global Union and ITF – MNE: Deutsche Post DHL – Home country: Germany – Host countries: Colombia, Indonesia, Turkey, Vietnam » Home country NCP: Germany – Issue: Anti-union campaigns; retaliation against trade unions; infringements of the rights to join a trade union and to engage in collective bargaining; failure to do due diligence – Provisions of the Guidelines: IV. 1. , IV. 2. , IV. 6. , V. 1 a, V. 1 b – NCP Role: • NCP itself provided mediation • Led to an agreement between UNI Global Union and ITF and Deutsche Post DHL, which included provision for follow-up: “The NCP considers that the number of direct contacts of the complainants with the respondent could be increased to three monthly meetings, so that the complainants could raise issues of concern regarding labour relations in a more direct way… The NCP will receive reports on these meetings in the next two years. ”

Trade union cases UAW v Nissan – Trade union: UAW – MNE: Nissan – Home countries: Japan, France (Renault) and the Netherlands – Host country: US (Canton, Mississippi) » Host country NCP: US – Issue: Anti-union campaigns; reprisals against trade unions; violations of the right to join a trade union and to engage in collective bargaining – Provisions of the Guidelines: IV. 1. , IV. 2. , IV. 6. , V. 1 a, V. 1 b – NCP Role: • Offered professional external mediation – Nissan refused to come to mediation • The NCP published a Final Statement with the following recommendations: "The U. S. NCP recommends that Nissan North America, Inc. , in cooperation and with guidance from Nissan corporate headquarters in Japan, conduct corporatewide labor rights review processes, consistent with the recommendation of the Guidelines, in particular the

Supply chain case NGO v Nissan – German Member of Parliament – MNEs: Kik Textilien, C&A and Karl Rieker – Home country: Germany – Host country: Bangladesh (Tazreen Fashion Ltd) » Host country NCP: Germany – Issue: 112 workers killed and hundred more injured in a factory fire; failure to address identified health and safety issues (omission); failure to conduct due diligence; inadequate training; purchasing practices – Provisions of the Guidelines: II. A. 11, II. A. 12. 1 V. I, IV. 2. IV. 5. , V. 4 c – NCP Role: • Accepted part of the complaint • Offered mediation to Kik and Karl Rieker • Transferred the case to Brazil for C&A – Agreement with Karl Rieker – No agreement with Kik

Supply chain case Applying the concepts: Bangladesh - German NCP (case filed - 13/05/2013) - German Member of Parliament/NGO - Tazreen Factory Fire (24 November 2013) - Case against: - C&A - Karl Rieker - KIK

Investor case Coalition of NGOs v Dutch Pension Fund (ABP) and its Pension Manager APG – NGOs: Lok Shakti Abhiyan, KTNC Watch, Fair Green Global Alliance – MNE: Pohang Iron and Steel Company (POSCO) – Home country: South Korea – Host country: Odisha, India – Investors/minority share-holders: Pension fund ABP and its asset manager All Pension Group (APG) (0. 8%) – Home country: The Netherlands » NCP: Netherlands – Issue: Displacement of 22, 000 protected peoples, forced land acquisitions, human rights violations – Provisions of the Guidelines: II. A 12 (linked to adverse impacts) – Request: investors to use their leverage with POSCO to address human rights impacts

Case against investors Coalition of NGOs v Dutch Pension Fund (ABP) and its Pension Manager APG » Home country NCP: Netherlands – NCP Role: • Provided a forum for dialogue • Led to a joint agreement between the parties on issues and next steps including continued dialogue. NCP Findings - “…the Guidelines are applicable to financial institutions and to investors, including minority shareholders. The NCP finds that the term “business relationship”, as referred to by the Guidelines, is applicable to financial relationships…. The fact that the term “business relationship” is not specifically defined for various types of financial relations does not mean that the Guidelines do not apply to them. . . “

Trade union cases Trade union experience - Mixed experience: - High rate of success with well functioning NCPs - NCPs have common rules - visible, transparent, accountable, impartial, predictable and equitable - No common performance - seek advice from GUFs/TUAC - Key obstacles to success - Other legal proceedings (parallel proceedings) - Companies refusing to participate in mediation - Lack of ‘consequences’ - (Need to grow teeth – e. g. Canada)

Resources -Trade Union Guide -Languages: - Arabic - Burmese - Chinese - French - German(DGB) - Italian (CGIL, CISL, UIL) - Japanese (RENGO) - Korean - Polish - Portuguese - Russian - Spanish - Swedish (LO-Sweden)

Submitting a Complaint The NCP Complaints Process (Trade Union Guide, Part 4. 1, Page 40) – Stage 1: Initial Assessment – Stage 2 A: Conciliation/Mediation – Stage 2 B: Examination if mediation is refused or fails • Most but not all NCPs » Not US, Australia, Switzerland – Stage 3: Final Statement/Report

Submitting a Complaint Trade Union Guide: Page 40

Submitting a Complaint The NCP Complaints Process (Trade Union Guide, Part 4. 1, Page 41)

Submitting a Complaint (Trade Union Guide, Part 4. 1, Page 41) Stage 1: Initial Assessment

Submitting a Complaint (Trade Union Guide, Part 4. 1, Page 42) Stage 2 A: Conciliation/Mediation At the 2011 update it was agreed that providing mediation was the core function of NCPs

Submitting a Complaint (Trade Union Guide, Part 4. 1, Page 42) Stage 2 A: Conciliation/Mediation

Submitting a Complaint Stage 2 A: Conciliation/Mediation (TU Guide, Part 4. 1, P. 42)

Submitting a Complaint Stage 2 B: Examination (TU Guide, Part 4. 1, P. 44)

Submitting a Complaint Stage 3: Final Report/Statement (TU Guide, Part 4. 1, P. 46)

GROUP EXERCISE 2 (p, 47 -49) – Who are the complainants? • What is their interest/standing? – Which enterprises (MNE and local) are involved? • What is their relationship (subsidiary, supplier, franchise)? – Which National Contact Point(s) are you submitting the case to? – What are the violations of the Guidelines and where did the violations take place? – Which paragraphs of the Guidelines have been breached? – What evidence are you providing? – What are you asking the NCP to do?

Key Resources -Trade Union Guide -Languages: - Arabic - Burmese - Chinese - French - German(DGB) - Italian (CGIL, CISL, UIL) - Japanese (RENGO) - Korean - Polish - Portuguese - Russian Spanish - Swedish (LO-Sweden)

Key Resources (See Part 5 of the Trade Union Guide) - TUAC web site on trade union cases and NCP performance: http: //www. tuacoecdmneguidelines. org/home. asp – OECD Watch web site on NGO cases: http: //oecdwatch. org/ - OECD web site: http: //mneguidelines. oecd. org

Closing Vote VOTE Closing Vote on the OECD MNE Guidelines Do you think the OECD MNE Guidelines are: – Useful for your work? Yes or No • More useful than you thought at the start? Yes or No • Less useful than you thought at the start? Yes or No

Key Resources (See Part 5 of the Trade Union Guide) - TUAC web site on trade union cases and NCP performance: http: //www. tuacoecdmneguidelines. org/home. asp – OECD Watch web site on NGO cases: http: //oecdwatch. org/ - OECD web site: http: //mneguidelines. oecd. org

Key Concepts – responsibility determined by impact Responsibility of an enterprise determined by its adverse impacts – Not determined by the level of control or equity – Not determined by an enterprise’s ’sphere of influence’ – Determined by its adverse impact – baseline responsibility » Impacts can occur in the supply chain, can involve contract workers or any other types of business relationships

(TU Guide, Page 17) Key Concepts Responsibility for Adverse impacts

Key Concepts – Corporate Responsibility to Respect Enterprises have a responsiblity to respect human rights – The corporate responsibility to respect human rights » NEW GLOBAL STANDARD - Enterprises should - - Avoid violating the human rights of others (including workers) and address such adverse impacts when they occur (Chapter IV, Human Rights) Know and show that they are respecting human rights (and the OECD Guidelines) by undertaking human rights due diligence

Key Concepts Corporate Responsibility to Respect Chapter IV: Human Rights 1. «Respect human rights, which means they should avoid infringing on the human rights of others and should address adverse human rights impacts, with which they are involved. ” Commentary 37. «(…) Respect for human rights is the global standard of expected conduct for enterprises independently of States’ abilities and/or willingness to fulfill their own human rights obligations, and does not diminish those obligations. » (Commentary on Human Rights, paragraph 37) 38. «A State’s failure either to enforce relevant domestic laws or to implement international human rights obligations or the fact that it may act contrary to such law or international obligations does not diminish the expectation that enterprises respect human rights. (…). » (Commentary on Human Rights, paragraph 38)

Key Concepts adverse human rights impacts 1. «Respect human rights, which means they should avoid infringing on the human rights of others and should address adverse human rights impacts, with which they are involved. ” Commentary 39. «In all cases and irrespective of the country or specific context of enterprises’ operations, reference should be made at a minimum to the internationally recognised expressed in the International Bill of Human Rights, consisting of the Universal Declaration of Human Rights and the main instruments through which it has been codified: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and to the principles concerning fundamental rights set out in the 1998 ILO Declaration on Fundamental Principles and Rights at Work. » (Commentary on Human Rights, paragraph 39) 40. «(…) Depending on circumstances, enterprises may need to consider additional standards. For instance, enterprises should respect the human rights of individuals belonging to specific groups or populations that require particular attention…. In this connection UN instruments have elaborated further on the rights of indigenous peoples; persons belonging to national, or ethnic, religious and linguistic minorities; women; children; persons with disabilities; and migrant workers and their families. » (Commentary on Human Rights, paragraph 40).

Key Concepts due diligence

Key Concepts due diligence (TU Guide, FIGURE 2. 5, Page 22)