Wednesday, March 18, 2015

2014 Annual Report of the Danish National Contact Point Now Available

(Pix (c) Larry Catá Backer 2015)

The remedial pillar of the the UN Guiding Principles for Business and Human Rights speaks not just to the use of state based remedial mechanisms, mostly national judicial systems. It also speaks to emerging international mechanisms for dispute resolution that are not law based, but may effectively provide a space within which the grievances of parties may be heard and remediation attempted outside the the constraints of the national legal orders of states.

Though a move toward a unified mechanism for interpretation of the UNGP remains only a theoretical possibility at the moment (see here), other coherence enhancing efforts have begun to emerge. Among the more promising mechanisms, though one still very early in its development (see here), are the so-called (and oddly named) National Contact Points, units established within member states of the Organization for Economic Cooperation and Development for the purpose, among others, of facilitating complaints (specific actions) brought to it alleging breaches of the OECD Guidelines for Multinational Enetrprises. The Guidelines themselves incorporate in substantial part (in new Chapter IV) the essence of the U.N. Guiding Principle0s autonomous second pillar enterprise responsibility to respect human rights.
The Danish Mediation and Complaints-Handling Institution for Responsible Business Conduct (the Danish NCP) has published Annual Report 2014. The Annual Report provides a useful summary of the activities of the Danish NCP, activities that one hopes will grow as the mechanism becomes more widely known and more readily used. Most interesting was the inclusion, for this year for the first time, of a general statement relating to a topic that was considered as part of a specific instance. It represents an effort to provide guidance to enterprises without assuming the forms of judicial opinions, but with the same guiding effect as the reasoning of common law cases. This year's general statement, concerning the retention of employees' identity papers, follows:

General statement concerning the retention of employees' identity papers

On the basis of the Danish Act on the Mediation and Complaints-Handling Institution, and any relevant concluded specific instances, the NCP may draw up guidelines and statements of a more general nature.

In its general statements the NCP states an overall opinion concerning an issue that might, for example, have been considered in a specific instance, and makes recommendations for how an enterprise should conduct itself in a similar situation. By disseminating one enterprise's experience to many other enterprises, the aim is to share knowledge and help other enterprises to avoid committing the same infringement.

In August 2014, the NCP issued its first general statement.

The NCP issued the general statement to relevant business organisations, employee organisations and NGOs, with a brief description of the issue, the NCP's recommendations, and a link to the final statement on the NCP's website. In addition, the general statement was translated into English, and the OECD sent the statement to the other NCPs. The Danish NCP has received a lot of positive feedback from several NCPs, stating that they support the statement and will discuss it with
their members.

Content of the statement

In October 2013, the NCP received a complaint concerning an employer's retention of the passports of foreign employees. In the specific instance it was not documented that the company had withheld the employees' passports, and the NCP therefore did not make any critical statement.

In order to contribute to ensuring that other enterprises do not face a similar situation, the NCP wished to generally emphasise that retention of employees' passports is a gross infringement of the OECD Guidelines. The OECD Guidelines' chapter concerning human rights is based, inter alia, on the UN Covenant on Civil and Political Rights. Article 8 states that "No one shall be required to perform forced or compulsory labour", and Article 12 that "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his

Retention of employees' identity papers may have the consequence that persons are not able to leave the workplace or are unable to move freely within a country's borders, or leave the country, if the person so wishes.

The NCP acknowledges that an employer may require documentation of an employee's identity, for example if the company pays salary in advance, but this does not entitle a company to withhold employees' identity papers. Instead, the NCP recommends that companies for example request employees to provide copies of their passports, or that the employer, by agreement, takes a copy of the employee's passport or similar identity papers.

The final statement and full description of the specific instance can be found on the NCP's website:

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