The Role of Legislation in Supporting Access to Effective Grievance Mechanisms: Reflections from the OECD Forum

By Dr. Rachel Widdis

During a bustling OECD Forum on Due Diligence in the Garment and Footwear Sector, I had the opportunity to attend very interesting and impactful panels on topics such as the industry’s progress and challenges with living wages and grievance mechanisms, as well as deforestation, including discussions on the OECD FAO Business Handbook on Deforestation and Due Diligence in Agricultural Supply Chains.  

Here, I focus on 5 key takeaways on how mandatory due diligence legislation can support access to accessible grievance mechanisms and, potentially, effective remedy for those impacted.   

1. There is new State power to promote accountability: As the panellists at the session Where to turn to? Exploring access to remedy for workers across grievance mechanisms highlighted, if these powers are used effectively, they can significantly help to protect workers’ rights in supply chains, improve accountability, and be complementary to other grievance mechanisms. Now, with the German Act on Corporate Due Diligence Obligations in Supply Chains (GSCDDA) in force, a person ‘directly affected by the violation or at least by its effects’ can go directly to the German Federal Office of Economics and Export Control (BAFA), the supervisory authority, to make a complaint about a company which, in their view, violates the Act.[1] BAFA commits to examine the complaint and take further action, if necessary. While the decision to take action is at BAFA’s discretion, the framework in the Act is aimed to trigger action if a violation of human rights or environmental concerns has occurred or is imminent. BAFA has the power to enforce the obligations under the Act and impose fines under it.
   
   This is a new and low threshold means for those affected to seek accountability, as it is BAFA, as the supervisory authority itself, which will conduct its investigation. In this way, a complainant has the possibility to harness the enforcing power of the German State.
2. Consultation with those impacted is a must: Despite the advantages of this new BAFA route under the GSCDDA, issues were noted. As a formal application within German administrative procedural law, BAFA leads and makes clear that once its own examination is completed, it will provide feedback to those who made the complaint. The first complaint under the Act was made in January 2023 by the European Center for Constitutional and Human Rights (ECCHR), along with others, supporting the Bangladeshi trade union NGWF. As the ECCHR pointed out at the OECD session, BAFA has construed the GSCDDA as not including consultation with the complainants during its investigation.
3. Human Rights Due Diligence (HRDD) legislation requires access to company grievance mechanisms: A requirement on companies in scope to establish, or to be part of, a complaints procedure is a core element of due diligence obligations under the GSCDDA. The Act makes clear that mechanisms can operate both as an early warning system through which problems are identified, and as effective grievance procedures to provide access to appropriate remedy when needed. Specifically, the GSCDDA requires that complaints procedures are open to all, easy to access, and include safeguards for complainants. Companies falling under the scope of the Act as of January 1, 2023 were to have a functioning complaints procedure in place as of that date, and the same applies to additional companies within scope as of January 1, 2024. At the Forum the ECCHR noted that, in practice, companies’ willingness to engage with complaints received has been variable.
   
   While the GSCDDA is still ‘new’ in operation, its provisions including the above routes can assist in enabling workers to have access to remedy via low threshold grievance mechanisms. Notwithstanding, legislative provisions supporting access to remedy under civil law are still needed.
4. Legislation should incentivise companies to join collective grievance mechanisms: Panellists at the Forum highlighted that companies are moving to become part of existing collective grievance mechanisms. This is welcome and can provide a centralized place for workers to submit a complaint as well as enabling peer and best practice learning on positive grievance management amongst companies. Continuing to raise worker awareness about company, collective and new direct mechanisms is necessary, as panellists pointed out, to support workers in choosing between, or navigating, parallel potential grievance mechanisms.
5. Each and every mechanism should focus on effective remedy in the eyes of the rightsholder: Over and above all, existing and new grievance mechanisms should always centre on providing access to effective remedy. The only route to realise this is by engaging with rightsholders to explicitly design a process which delivers meaningful remedy in the view of those who are impacted.   

Article One partners with companies to help surface opportunities to ensure that workers are at the center of their business and human rights strategy and to re-envision their supply chains so that they meet the needs of all stakeholders. For more information, please contact hello@articloneadvisors.com. 

[1] As the BAFA complaint link notes, this includes regarding foreign companies which are a supplier of a German company. 

Photo credit: OECD Centre for Responsible Business Conduct