Procedures for dealing with Specific Instances brought forward under the OECD Guidelines for Multinational Enterprises
- The guide has been developed in consultation with the Oversight Committee that oversees the Australian National Contact Point (AusNCP) for the OECD Guidelines for Multinational Enterprises (the Guidelines).
- The purpose of the guide is to explain the process for the AusNCP to consider complaints brought under the Guidelines. As the Guidelines make clear, the first objective of the Specific Instance process is to find a solution through conciliation or mediation. The AusNCP only undertakes an examination of the complaint if mediation fails to find a resolution. This guide explains what the AusNCP may do to decide whether to accept a case; how the mediation process works; the scrutiny process – should this prove necessary; and publication of the AusNCP’s decision.
- Throughout this guidance “AusNCP” refers to the Australian National Contact Point for the OECD Guidelines for Multinational Enterprises. Contact details for the AusNCP can be found at www.ausncp.gov.au
- “Company” refers to the multinational enterprise against which the complaint is made.
- “Guidelines” refers to the OECD Guidelines for Multinational Enterprises.
- “Parties” refers to the complainant or complainants and the enterprise being complained against.
- “Specific Instance” means a complaint that is submitted to the AusNCP concerning a company’s alleged breaches of the Guidelines. The terms “specific instance” and “complaint” are synonymous.
- “Oversight Committee” means the Committee established to oversee the operation of the AusNCP and its implementation of the Guidelines.
Stages in the AusNCP process for considering specific instances
The stages involved in handling complaints
- There are three key stages to the AusNCP’s process for handling Specific Instances:
9.1. Stage 1 – from receipt of complaint to Initial Assessment
9.2. Stage 2 – from acceptance of a case to conclusion of mediation or examination
9.3. Stage 3 – drafting and publication of Final Statement.
- The AusNCP will aim to complete each Specific Instance within a year of receiving the complaint. It will aim to complete Stage 1 within 3 months of a complaint, Stage 2 within a further 6 months and Stage 3 within a further 3 months.
- Some degree of flexibility may be needed in relation to the timetable; for example, because of circumstances outside the AusNCP’s control. In these circumstances the AusNCP will notify the parties, explain the reason and set out a revised timetable.
- As set out above, the AusNCP is committed to the prompt resolution of each Specific Instance. Parties are urged to provide information promptly in order to adhere to the timetable. Failure to do so could result in the AusNCP making its decision in the absence of that information.
Who can make a complaint?
- According to the Guidelines, any “interested party” can file a complaint. The complainant may be, for example, a community affected by a company’s activities, employees or their trade union, or an NGO. A complainant may act on behalf of identified other parties.
- The AusNCP will consider all complaints it receives provided the complaint and all relevant documents are submitted in English. However, the AusNCP will need to receive detailed information from the complainant in order to deal with the complaint. Therefore, complainants should have a close interest in the case and be in a position to supply information about it. They should also, in accordance with the principles of the Guidelines, have a clear view of the outcome they wish to achieve.
What are the grounds for making a complaint?
- Complainants need to decide which chapters or paragraphs in the Guidelines they consider are being breached by the company and specify these in making their complaint. The AusNCP’s determination of a complaint will be evidence based. Complaints falling outside the Guidelines will not be considered – nor will ineligible, frivolous or vexatious complaints.
What happens to information provided during the course of an examination?
- One of the objectives of the AusNCP is to ensure that its process is transparent. Unless a good case is made to the AusNCP for information to be withheld from a party, all the information received by the AusNCP from the parties or any other person or organisation (whether during the course of a meeting or in writing) will be copied to all parties. The preferred course is to agree, where appropriate, conditions of confidentiality attaching to sensitive information.
- Information which is sent to the AusNCP will be treated confidentially by the AusNCP. The information provided by each party may be shared with any other party to the complaint during the process of assessment, but only with the consent of the party which provided the information. If any such information is provided, it will be on condition that it is kept confidential for the period of assessment.
- Parties should be aware that information and documents provided to the AusNCP will be subject to the operation of theFreedom of Information Act 1982 (FOI Act), and could be released under the provisions of that Act. The FOI Act sets out a process for ensuring the public’s right to access documents held by government, but it does not prevent agencies from disclosing information outside that process.
Stage 1: From receipt of complaint to initial assessment
What will the AusNCP do when it receives a complaint?
- Within 10 working days of receiving a complaint, the AusNCP will acknowledge receipt to the complainant.
On what grounds does the AusNCP decide whether or not to accept a Specific Instance?
- In making its initial assessment of a Specific Instance, the AusNCP will consider the stated grounds of the complaint and the information it has received about the complaint, in order to decide:
20.1. whether it falls within one or more of the Guidelines;
20.2. whether the issue raised is material and substantiated; and
20.3. whether there are any other factors which should be taken into account such as, but not limited to:
20.3.1. the relevance of applicable law and procedures, including court rulings;
20.3.2. how similar issues have been, or are being, treated in other domestic or international Specific Instances;
20.3.3. whether consideration of the Specific Instance would contribute to the purposes and effectiveness of the Guidelines.
- In making its initial assessment the AusNCP may determine to consult with the National Contact Point(s) of other OECD Guidelines for MNE’s adhering country with a view to:
21.1. seeking advice from the other NCP regarding the complaint;
21.2. involving the other NCP in the complaint process;
21.3. transferring the complaint to the other NCP if this is considered appropriate and agreed by the NCP’s involved in the matter
- In making its initial assessment the AusNCP may choose to consult with external experts
What happens next?
- Having made an initial assessment the AusNCP may:
23.1. forward the complaint to the company named in the Specific Instance complaint, with an invitation to send the AusNCP a preliminary response within 20 working days of the notification; or
23.2. transfer the matter to another NCP advising the parties of this action; or
23.3 not accept the complaint and advise the complainant appropriately and make an appropriate statement which will be published on the AusNCP website.
- If the complaint is accepted the AusNCP may offer separate meetings to both parties. At the meetings the AusNCP will explain the process and answer any questions. The AusNCP may also use each meeting to begin its analysis of the complaint. At the meeting with the complainant the AusNCP will clarify the precise nature of the complaint. At the meeting with the company, it will ask for a response to the complaint.
- Throughout the complaint handling process, both parties may have an opportunity to submit additional evidence and documentation
- If appropriate, the AusNCP may seek comment/advice from experts or organisations that may bring particular knowledge and experience that will assist consideration of the complaint.
What does acceptance of the Specific Instance mean?
- If the AusNCP decides to accept the complaint, this means that it considers that there is enough information to warrant further examination. It does not mean that it has concluded that the Guidelines have been breached.
What does refusal to accept a Specific Instance mean?
- If the AusNCP does not accept a case it means that there is insufficient evidence of any breach of the Guidelines sufficient to warrant further examination or that the complaint is frivolous, vexatious or falls outside the Guidelines.
What if the parties reach a settlement before the AusNCP issues an Initial Assessment?
- If the parties reach a settlement and the complaint is withdrawn before the AusNCP has issued an Initial Assessment, the AusNCP will close its file, and the identities of the parties will not be disclosed by the AusNCP except with the agreement of both parties. The AusNCP may issue a statement setting out the particulars of the matter without identifying the parties concerned.
What form does an Initial Assessment take?
- The Initial Assessment, when issued, may include:
30.1. the names of the parties if the case is accepted (the parties will not be named if the case is rejected);
30.2. the substance of the complaint – including reference to those Guidelines alleged to have been breached;
30.3. a statement of the nature of the complaint;
30.4. a summary of the process the AusNCP has followed to date;
30.5. the reasons for accepting or rejecting the complaint;
30.6. notice of any parts or all of the complaint found to be outside the Guidelines, frivolous or vexatious; and
30.7 an outline of the next stages in the AusNCP’s determination.
- A statement that acceptance of a complaint for further consideration does not mean that the AusNCP has determined at this stage that the Guidelines have been breached
- Before issuing an Initial Assessment, the AusNCP will send a draft of the assessment to the parties, inviting their written comments within not more than 10 working days. When issuing the Initial Assessment, it will be at the AusNCP’s discretion whether to take account of any comments received.
Stage 2: From acceptance of a case by the AusNCP to conclusion of mediation or examination
The Mediation Process: the role of mediation in resolving Specific Instances
- The preferred outcome of any complaint is an agreement between the parties. When the AusNCP accepts a Specific Instance, it will discuss with the parties involved and offer its “good offices” with the objective of bringing both parties together to discuss the issues and come to a mutually agreed resolution without undue delay. Mediation can be viewed as an ‘assisted negotiation’ between the parties with the aim of reaching a settlement agreeable to both. The AusNCP will facilitate discussions and may make suggestions.
- As with the Guidelines themselves participation in any mediation is voluntary. The published Final Statement will note where the parties refused to undertake mediation and will provide a summary of the reasons why mediation was not undertaken.
- If the parties are unable to agree on mediation or mediation fails, then the AusNCP will conduct an examination of the case as set out below. Whilst mediation is continuing the complaint will not simultaneously be subject to further scrutiny.
- The AusNCP and the parties will agree the most suitable approach to mediation.
- If mediation is undertaken within the AusNCP process the mediation may be conducted by the AusNCP or by professional mediation contracted by the AusNCP. The final decision as to which course is to be taken rests with the AusNCP.
Mediation within the AusNCP process
- In mediation conducted by the AusNCP, the AusNCP will at all times be neutral. The role of the AusNCP is to provide an opportunity for each party to discuss the issues raised by the complaint. The mediation is confidential. The AusNCP will make the only record of what happened during the mediation. This summary statement may be published as part of the final assessment.
- When the AusNCP mediates in a case it will:
39.1. agree the agenda with both parties before commencing the joint mediation session(s).
39.2. chair and facilitate meetings with the parties either separately or together, and encourage both parties to exchange information, build trust and confidence, and ultimately find a process to resolve the issues.
- There are three main stages to the mediation process:
40.1. The AusNCP will meet both parties separately to prepare for the mediation. These meetings will explore the issues, explain the mediation process, and answer questions on the how the process will work.
40.2. The AusNCP will bring both parties together in a meeting or meetings which will always commence with providing each party with a period of time to explain their views and will provide sufficient opportunity to clarify outstanding issues. The initial meeting may result in a settlement or will end by mapping out a process of on-going dialogue.
40.3. At the end of a successful mediation process the parties, with the assistance of the AusNCP if they wish, will draft a Mediation Agreement and, if the full agreement is not to be published, a summary for publication. The AusNCP will issue a final statement outlining the issues, the parties, the relevant sections of the OECD Guidelines, and the outcome of mediation. The AusNCP may make a statement as to whether the provisions of the Guidelines may have been breached or not.
- In cases where the AusNCP contracts an external mediator the AusNCP will prepare terms of reference to be agreed by both parties and the mediator. The mediator will be responsible for agreeing with the parties the methods and processes for mediation. The AusNCP will request an update of progress from the mediator every 2 months.
- Should the mediation process fail, then the AusNCP will start to examine the complaint. In any case where the majority of key concerns of the complaint were mediated and where the parties are content for the AusNCP not to investigate the remaining issues, this will be written into the Mediation Agreement. The AusNCP will issue a final statement outlining the issues, the parties, the relevant sections of the OECD Guidelines, and the outcome of mediation. The AusNCP may make a statement as to whether the provisions of the Guidelines may have been breached or not.
Responsibilities of both parties in the AusNCP mediation process
- Both parties enter into the mediation in the spirit of seeking to reach a resolution of the issues at hand. Parties are expected to adhere to the agenda and not raise issues not known to either the AusNCP or the other party beforehand.
- It must be clear that the persons taking part in mediation have the authority to implement a proposed agreement. If the persons taking part are subject to higher authority within that party, this must be made clear from the outset.
- Mediation procedures will be informal and confidential, in order to encourage open discussion. Mediation sessions will not therefore be minuted by the AusNCP. However a summary of the final conclusions from a meeting may be provided by the AusNCP to note progress made and for the purpose of informing any following meeting. Parties will agree to observe confidentiality except to the extent that it is necessary to seek professional advice or guidance from within their organisation. In these circumstances those consulted will be expected to observe confidentiality.
Mediation outside the NCP process
- The filing of a complaint with the AusNCP may result in the parties asking to resolve any complaint amongst themselves. This would only proceed if agreed by parties to the complaint. At any stage, the parties may realise that they may be able to resolve the issues raised without further intervention by the AusNCP. If the AusNCP receives written notification from both parties that they wish to mediate outside the AusNCP process, the AusNCP will suspend the case. The AusNCP will request an update of progress every 2 months to determine whether the Specific Instance procedure needs to be reopened. If mediation outside the system is successful, the AusNCP will close the case. If this is achieved before the Initial Assessment is completed, a note closing the complaint without identifying the parties will be published. If this is achieved after the Initial Assessment stage, a Final Statement will be published explaining that the parties have achieved a mediated settlement outside the AusNCP process.
- If mediation is refused or fails to achieve agreement, the complaint will return to the AusNCP for further analysis. The objective of this process is for the AusNCP to further consider the complaint in order to assess the complaint.
- At the outset of this scrutiny the AusNCP may identify the steps it intends to take in order to proceed with any further examination and will notify both parties in writing of this.
- The examination may involve the AusNCP collecting further information from the complainant or the company. It may also seek advice from other relevant government departments, Australian diplomatic missions or business associations, NGOs or other agencies. If appropriate it will seek informed independent opinion.
- The examination may also involve further meetings between the AusNCP and the parties.
- Unless a good case is made for information to be withheld, all the information and evidence received by the AusNCP may be shared with the parties.
- The AusNCP may then review all the information it has gathered, and may make a statement as to whether the Guidelines have been breached.
Stage 3: Drafting and publication of the final statement
- The AusNCP’s Final Statement may include the following:
53.1. details of allegation and those chapters/paragraphs of the Guidelines that it is alleged have been breached;
53.2. details of the parties involved (i.e. complainant and the company);
53.3. a summary of the process the AusNCP has followed;
53.4. the outcomes of any mediation;
53.5. the results of examination (if any), which will include rationale behind each conclusion;
53.6. where appropriate, the AusNCP may make recommendations to the company so that its conduct may be brought into line with the Guidelines;
53.7. where appropriate, a date by which both parties will be asked to submit to the AusNCP an update on measurable progress towards meeting any recommendations; and
53.8. where the AusNCP has found examples of good company practice consistent with the Guidelines this information may also be included.
- Once the AusNCP has drafted its Final Statement, it will be sent to the parties for checking, with a deadline of 10 working days for comments. The AusNCP may then incorporate any necessary factual changes before sending the finalised statement to the parties, together with information of how they can seek a review by the Oversight Committee if they consider that the process set out in this guidance has not been properly followed.
- Any request for review will have to be made within 10 working days of the date the Final Statement is sent to the parties. This also applies for request by a complainant for review of a case where the AusNCP does not accept the case as a Specific Instance. At the end of this period the Final Statement will be published on the AusNCP website –www.ausncp.gov.au.
Follow up to final statements
- Where the Final Statement includes recommendations to the company, it may specify a date by which both parties are asked to provide the AusNCP with a substantiated update on the company’s progress towards implementing these recommendations.
- The AusNCP will then prepare a Follow Up Statement reflecting the parties’ response. The AusNCP will ask the parties to send factual comments on the Follow Up Statement within 10 working days. The AusNCP may then incorporate any necessary factual changes before sending the finalised Follow Up Statement to the parties and publishing the final Follow Up Statement on the AusNCP’s website.