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11. No Controls to Ensure the Effectiveness of the Grievance Mechanisms in Providing Remedy

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While having a grievance mechanism is essential, to ensure that human rights are respected and upheld in practice, they need to align with international standards.[1] The UNGPs set out the minimum requirements for an effective grievance mechanism. They must be: accessible, equitable, legitimate, predictable, transparent, a source of continuous learning, and rights compatible.[2] Additionally, UNGP 31 states that “a grievance mechanism can only serve its purpose if the people it is intended to serve know about it, trust it and are able to use it.”[3] OHCHR (Office of the United Nations High Commissioner for Human Rights) emphasizes that the grievance mechanisms “should be at the service of rights holders, who should be consulted meaningfully in creating, designing, reforming and operating such mechanisms.”[4] Therefore, grievance mechanisms should be designed with input from rights holders. The resulting guidance encourages co-design[5] and proactive engagement “with those seeking to develop and implement worker-driven and community-driven grievance mechanisms.”[6]
 
Rights holders need to know about the certification scheme and how to overcome barriers to accessing and reporting.[7] Grievance mechanisms must be fair and effective in both their outcomes and their procedures. Regarding procedure, the responsibility to assess complaints should fall to an independent reviewer who can impartially, reliably, and efficiently evaluate the validity of each complaint. Once it's established that a harm occurred; to be effective a grievance mechanism must provide safeguard against repetition, remedy the harm, and restore victims to their situations prior to the harm.[8]
Rights holder participation in the design and implementation of the grievance mechanism is important for enterprise risk management (see Red Flag 2 in Alignment with International Standards). Rights holders have firsthand knowledge of the impacts of business operations and the efforts to address these impacts. They can determine whether these efforts actually mitigate or further exacerbate the marginalization, intimidation, and fear of reprisal that often prevent the reporting of abuses.
[1] James Harrison and Mark Wielga, “Grievance Mechanisms in Multi-Stakeholder Initiatives: Providing Effective Remedy for Human Rights Violations?,” Business and Human Rights Journal 8, no. 1 (January 16, 2023): 43–65,  https://doi.org/10.1017/bhj.2022.37.
[2] United Nations Human Rights Office of the High Commissioner, Access to Remedy in Cases of Business-Related Human Rights Abuse: An Interpretative Guide Advance Version (2024), https://www.ohchr.org/sites/default/files/documents/issues/business/access-to-remedy-bhr-interpretive-guide-advance-version.pdf.
[3] United Nations, Guiding Principles on Business and Human Rights: Implementing the United Nations  ‘Protect, Respect and Remedy’ Framework (2011),  https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf.
[4] Secretary General, Human rights and transnational corporations and other business enterprises (United Nations General Assembly, July 18, 2017), 8, https://ap.ohchr.org/documents/dpage_e.aspx?si=A/72/162.
[5] International Commission of Jurists, Effective Operational-level Grievance Mechanisms (November 2019), https://www.icj.org/wp-content/uploads/2019/11/Universal-Grievance-Mechanisms-Publications-Reports-Thematic-reports-2019-ENG.pdf.; Hannah Clayton, Marcus Addy, and Roper Cleland, Handling and Resolving Local-Level Concerns and Grievances: Human Rights in the Mining and Metals Sector (International Council on Mining and Metals, December 10, 2019),  https://www.icmm.com/grievance-mechanism.; Secretary General, Human rights and transnational corporations and other, 8.
[6] United Nations High Commissioner for Human Rights, Improving accountability and access to remedy for victims of business-related human rights abuse through non-State-based grievance mechanisms (United Nations Human Rights Council, May 19, 2020), 11,  https://www.ohchr.org/sites/default/files/Documents/Issues/Business/ARP/ARPIII_MainReport_AdvanceEditedVersion.pdf.
[7] Katherine McDonnell, Morvarid Bagheri, and Shauna Curphey, “Addressing Corporate Activity that Negatively Impacts Natural Resources: Community-led Engagement as a Path to Rights Compatible Remedies,” Just Ground, January 11, 2024,
https://www.justground.org/insights/aba-njgms-negotiation.
[8] Ibid.
Without an effective grievance mechanism, affected stakeholders or rights holders might not be aware of the certification, know how to make a complaint, or feel safe reporting abuses due to fear of reprisal.
 
In 2015, the NGO Environmental Investigation Agency (EIA) issued a report alleging that RSPO member Poligrow, a Colombian company, displaced local communities when it took ownership of more than 10,000 hectares of land without Free, Prior, and Informed Consent (FPIC), or submitting New Planting Procedures (NPP) notification, among other processes.[1] Later that year, the RSPO Complaints Panel asked the RSPO Secretariat to investigate these allegations. In its 2019 follow-up report, EIA noted that it took four years for an action plan to be agreed upon and critiqued the “action plan is not public, nor is Poligrow’s progress.”[2] (see Red Flag 14 in Governance & Accountability). According to the report, Poligrow “was sanctioned by the regional environmental authority of Colombia (Cormacarena) for environmental damage with recommendations issued to it.”[3] These concerns were echoed in a Profundo report based on research conducted in 2016, which asserts that the RSPO Complaints Panel was at the time “unreliable and inefficient (the process often takes years without reaching a satisfactory solution; the panels’ independence is often challenged; transparency of the process remains an issue).”[4] In 2017, RSPO revised its Complaints and Appeals Procedures.
 
MSIs that do not certify can also be limited in ensuring member adherence to public commitments to uphold international labor standards. The Clean Clothes Campaign (CCC) filed a complaint to the Ethical Trading Initiative (ETI) in July 2022 on behalf of Turkish garment factory workers against ETI member and fashion company Next.[5] The complaint contends that Neo Trend Textile, a Next supplier, suspended workers during the pandemic, then sold assets and closed the factory without notice, without paying severance or providing other worker protections, as legally required.[6] Fourteen months later, according to CCC, ETI was still not “able to ensure that the Neo Trend Textile workers that produced for its member Next had received their owed severance.”[7] The Worker-Driven Social Responsibility Network (WSR) subsequently criticized ETI for “lack[ing] the means to make good on those [ethical] claims.”[8]
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→ Demonstrates: Reputational risk, legal risk
[1] Environmental Investigation Agency, Who Watches the Watchmen? 2 (November 5, 2019), 19, https://eia-international.org/report/who-watches-the-watchmen-2/.
[2] Ibid.
[3] Ibid.
[4] Retno Kusumaningtyas, External Concerns on the RSPO and ISPO Certification Schemes (Profundo, January 21, 2018), 2, 25, https://www.foeeurope.org/sites/default/files/eu-us_trade_deal/2018/report_profundo_rspo_ispo_external_concerns_feb2018.pdf.
[5] “Engagement with Ethical Trading Initiative over Member Conduct Leaves Garment Workers Empty-Handed,” Worker-Driven Social Responsibility Network, December 4, 2023, https://wsr-network.org/resource/engagement-with-ethical-trading-initiative-over-member-conduct-leaves-garment-workers-empty-handed/.
[6] “Former workers of Neo Trend remain empty-handed after 14-month-long engagement with Ethical Trading Initiative and member brand Next,”  Clean Clothes Campaign, accessed March 7, 2024. https://cleanclothes.org/blog/former-workers-of-neo-trend-remain-empty-handed.
[7] Ibid.
[8] “Engagement with Ethical Trading Initiative," Worker-Driven Social Responsibility Network.
To assess the quality of an initiative’s grievance mechanism, investors can check for whether it contains the following elements:
  • Whether the scheme requires that information on complaints and resolutions are publicly available (see Red Flag 14 in Governance & Accountability)
  • A credible statement about the independence of reviewers of complaints
  • For each complaint, a statement of the time until complaint resolution
  • Whether there are statements on the website attesting to genuine participation of rights holders in the design of the grievance mechanism
  • Whether the scheme provides (or requires that the entity provides) multiple ways to lodge a grievance
  • Whether the scheme indicates where the responsibility lies for repairing the harm—with the supplier or buyer—and how the system works if the complaint goes to the buyer
  • Whether there is training for workers on the grievance mechanism, including walking workers through who will take charge of fixing the identified problem
  • Whether the scheme requires proof that the complaint was acted upon
  • Whether the scheme requires that the results of remediation are shared with the entire workforce or community, so as to build trust in the mechanism and so that others can complain if they see that a complainant's grievance was not acted upon

​The following are two examples of good practice grievance mechanisms:
➔    Fair Wear Foundation’s complaints procedures outline criteria for ensuring the independence of reviewers: “The criteria for selecting a team or organisation include: accessibility, ability to speak the local language(s) and English, knowledge and expertise on labour standards and local law, understanding of Fair Wear, and independence.”[1] Additionally, the foundation’s website has a public tracker detailing complaints received, timeline, and the resolution, including whether remedy was provided.

➔    Milk with Dignity (MD), an initiative for improving working conditions in dairy supply chains, publicizes information regarding complaints in their biannual public impact report, including time until complaint resolution and whether remedy was provided.
Some initiatives clearly indicate the role of rights holders in the development of the grievance mechanism.
➔    ​The Agreement on Program Designed to Eliminate Gender-based Violence and Harassment at Nien Hsing Factories in Lesotho (Anti-GBVH Program) explains in its 2021-2022 Annual Report, that trade unions, women’s rights organizations, and US-based workers’ rights organizations have memoranda of understanding (MOUs) and protections for the right of association with the brands and Nien Hsing. The agreement “ensures strong emphasis on a women’s rights approach, alongside protection for people’s rights as workers.”[2] It also allows a trusted women’s rights organization to run the program’s confidential, toll-free information line that workers can use to access information and bring complaints of GBVH.
[1] Fair Wear, Fair Wear Complaints procedure, 2018, 16, https://api.fairwear.org/wp-content/uploads/2020/09/Fair-Wear-Complaints-procedure-V2.0.pdf.
[2] Worker’s Rights Watch, 2021-2022 Report: Agreements to Eliminate Gender-Based Violence and Harassment in Lesotho (2023), https://www.solidaritycenter.org/publication/2021-2022-agreements-to-eliminate-gender-based-violence-and-harassment-in-lesotho/.
Does the scheme require grievance mechanisms of certified mills to have the following features? Select all that apply.  
❐  Publicly available complaints and resolutions 
❐  Rights holders participation in the design and implementation of the mechanism
❐  Guidelines for providing remedy
❐  Safeguards against repetition
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