Community-Driven Operational Grievance

Mechanism (OGM)A process designed and driven primarily

by a community for considering and resolving human rights claims

• Provide an internationally accepted framework for the responsibilities and obligations of states and companies with respect to the human rights impacts of business operations.

• The Third Pillar of the UNGPs focuses entirely on access to remedy, and describes three different types of remedial mechanisms:

1. State-based judicial remedies

2. State-based non-judicial remedies

3. Non-state based grievance mechanisms

• The third category includes Operational-level Grievance Mechanisms (OGMs)

UN Guiding Principles on Business & Human Rights

UN Guiding Principles and Grievance Mechanisms

I. Protect

II. Respect

III. Remedy

Non-State-based

Non-judicial

Dialogue-basedOperational-level

Grievance Mechanism

Adjudicative

Judicial

State-based

Judicial

Non-judicial

UN Guiding Principles 3 Pillars

Grievance Mechanisms

Adapted from CSR Europe’s Management of Complaints Assessment (MOC-A) Results,

“Assessing the Effectiveness of Company Grievance Mechanisms” (2013).

• A system that a company sets up at their operational sites to handle complaints from workers, community members and other stakeholders.

• Designed to respond to complaints through dialogue and provide remedies to affected communities.

• Two other important functions: – to assist companies in learning about the negative impacts of their

operations in order to avoid them in the future– to prevent escalation by providing a way for companies to provide

remedies early and directly

• OGMs can be more advantageous to formal judicial processes, as they may be more accessible to victims, provide a forum for empowerment, improve company-community relationships, and enable swift distribution of remedies

What is an Operational-level Grievance Mechanism (OGM)?

Communication of

Grievance

Investigation / Assessment of

Grievance

Determination / Offer of Remedy

Implementation of the Remedy

Possibility of Appeal

Monitoring and Feedback

Typical OGM Procedures

Principle 31 of the UNGPs offers Effectiveness Criteria to guide business enterprises in developing their grievance mechanisms

8 Criteria for the effectiveness of OGMs:

1. Legitimate2. Accessible3. Predictable4. Equitable5. Transparent6. Rights-compatible7. Source of continuous learning8. Based on engagement and dialogue with stakeholders

UNGPs Effectiveness Criteria

1. Legitimate: The grievance mechanism (GM) must be credible in both the process and the outcomes. It must appear, and actually be, fair, objective, and unbiased. Communities need to know that it is objective, and also that their complaints will be taken seriously and will not result in retaliation.

2. Accessible: The mechanism must be known to all stakeholders and actively promoted. It should be readily accessible through multiple access points and be culturally appropriate. It should explain the purpose and functioning of the GM. Care should be taken to address barriers to the information, such as with vulnerable groups and communities with limited literacy. There should be a variety of ways to make complaints, both formally and informally.

3. Predictable: The GM should be clear on how the process works, the types of complaints that can be made, the outcomes available, how agreed resolutions are followed-up on and monitored. This should also include a clear timeline for each stage of the process and for the overall process.

UNGPs Effectiveness Criteria

4. Equitable: To be equitable, the mechanism must demonstrate a fairness in the process. The mechanism must be objective and treat all complaints seriously, even if the company does not consider them well-founded. This criteria involves how the company addresses the imbalance of power. Stakeholders should have reasonable access to information, and should have access to advice or expertise.

5. Transparent: Transparency involves keeping the users of the mechanism informed throughout the process, as well as reporting on the performance of the mechanism both internally and externally. This should be balanced with considerations on the need for confidentiality. The mechanism should take anonymous complaints where permitted by law.

6. Rights Compatible: The mechanism must ensure that the outcomes and remedies are in line with internationally-recognized human rights. Each complaint should be assessed on its possible human rights impact. If there is a conflict between national law and international human rights law, the mechanism should adopt the higher standard. The mechanism should not be a substitute for other judicial or non-judicial remedies, and the mechanism should create a channel to those other mechanisms if needed as recourse.

UNGPs Effectiveness Criteria

7. Source of Continuous Learning: All complaints should be recorded and logged. They should be reviewed and analyzed regularly, both internally and externally. The regular monitoring should include consultations with relevant stakeholders. The evaluations should incorporate key learnings and trends or patterns in order to make necessary improvements.

8. Based on Engagement and Dialogue: All of the best practice guides instruct companies to engage in dialogue throughout the process and focus on joint problem resolution. This applies to both the design of the mechanism and how it operates, and may include 3rd party input as well. In monitoring, companies should set up a method of feedback collection.

UNGPs Effectiveness Criteria

• There is no company-driven OGM that meets all Effectiveness Criteria adequately or has overall user satisfaction.

• The number one deficiency in existing OGMs is the extent and type of stakeholder engagement.

– It is common practice for companies to rely mainly on internal expertise when designing an OGM.

– Outside third parties are consulted sometimes, but impacted stakeholders rarely are.

• According to the IFC CAO, the accountability mechanisms of the IFC, internally-based (or company-designed) mechanisms “reinforce power inequalities, limit procedural choices, prevent complainant from having much influence in crafting a solution, and omit stakeholders from involvement in the design, and rely on individuals without specific training or capacity.”

• Rights-compatibility is a weakness in many existing mechanisms as well.

Problems with Existing OGMs

From CSR Europe’s Management of Complaints Assessment (MOC-A) Results, “Assessing the Effectiveness of Company Grievance

Mechanisms” (2013).

• Barrick Gold (Canada) established an OGM in Papua New Guinea to provide remedies to victims of rape by security guards at the company’s Porgera Mine.

• In designing its OGM, Barrick consulted with human rights experts and women’s advocates but did not engage in a participatory process with victims or their representatives.

• While significant numbers of women entered the framework and received benefits, many told ERI that they were dissatisfied with:– the procedures, which they considered to be confusing and

disrespectful– the remedy offered, which they saw as both insufficient and

culturally inappropriate

• The OGM has also been publicly criticized by many for a specific provision that requires beneficiaries of OGM remedies to sign a legal waiver foregoing future civil actions.

Case Study: Porgera Mine

• Carbones del Cerrejón (Cerrejón Mine) in Colombia consists of a coal mine plus 150km of railway tracks and sea port for transportation

• Joint venture co-owned by Anglo American (UK), BHP Billiton (Australia), and Xstrata Coal (South Africa)

• Positives:– Developed an OGM based on the Effectiveness Criteria– Well-elaborated and clearly structured– Claims willingness to engage

• Shortcomings:– Relationship between the company and the affected community still weak, due to a

tense history and continued power imbalance – Users report that complaints are not taken seriously or they face retaliation– Stakeholder participation in investigation, but not in design– Ineffective outreach to target communities– Complaints not handled in timely manner– Limited transparency (open about process, but not about complaints and

resolution)

*Detailed analysis can be found at, Barbara Linder, Karin Lukas, & Astrid Steinkellner, “The Right to Remedy: Extrajudicial Complaint Mechanisms for Resolving Conflicts of Interest between Business Actors and Those Affected by their Operations” (Ludwig Boltzmann

Institute of Human Rights, April 2013), at pp. 44-58; International Institute for Environment and Development, “Dispute or dialogue? Community perspectives on company-led grievance mechanisms” (2013) at pp. 110-121.

Case Study: Cerrejón Mine“Developing a policy or procedure on paper is relatively simple,

compared to what it takes implementing it”

• We believe that the effectiveness criteria of being based on engagement and dialogue is a necessary pre-requisite for a functional mechanism – When rights-holders are excluded from the process of

designing and running an OGM, they do not view it as legitimate, predictable, equitable, accessible, or transparent

– It cannot be a source of continuous learning or rights-compatible if the rights-holders are ignored

• The community-driven model is, by its nature, based on engagement and dialogue

• This rights-based approach also provides the most effective way to develop an OGM that is rights-compatible

The Community-Driven Model

• “The Coalition of Immokalee Workers’ (CIW) Fair Food Program is a unique partnership among farmers, farmworkers, and retail food companies that ensures humane wages and working conditions for the workers who pick fruits and vegetables on participating farms.”

• The program is designed, monitored, and enforced by the workers, which sets out a code of conduct to which tomato farms across the United States must adhere, enforces binding consequences, and includes regular peer education and trainings.

• The program has the participation of major retailers and food service providers, including Walmart and McDonalds.

• This model has been publicly recognized by the UN Working Group on Business and Human Rights, and has received international public praise.

For more information, see http://www.fairfoodprogram.org/

Case Study: Fair Foods Program

• Addresses the issues the community believes are the most important

• Resolves problems through a process that the community sees as legitimate in light of its culture and needs, and that complies with international human rights law

• Offers outcomes to the grievance process that the community sees as appropriate and adequate

The CD-OGM is designed primarily by the affected population itself to meet their traditional conceptions of fair process and just outcomes, including:• The scope of the OGM• The processes by which it functions• The people who staff it• The outcomes of individual grievance complaints

The Community-Driven Model

1. Scoping of the mechanism• Identifying the harms and impacts that they have suffered

or that they foresee, and deciding which of these impacts is suitable for a non-judicial grievance process

• Identifying the substance of remedies that they expect to be available through the mechanism

2. Defining the procedure for evaluating cases and obtaining remedy (using typical OGM procedures as a baseline for discussions)

3. Developing plans for the perpetuation of the mechanism through monitoring and community training

Phases of Developing a CD-OGM

• Company buy-in and participation are necessary for the success of any OGM

• As the CD-OGM is being designed, companies should commit to engage in this community-driven process in good faith; and specifically in:

1. Consultations at a number of stages

2. Negotiations with the affected community to finalize the CD-OGM and an implementation plan that it satisfactory to all parties

What is the Role of Companies?

The CD-OGM model can provide significant benefits to companies, including:• Increased use of OGM by communities, greater trust in

the company and the problem-solving process• Increased corporate understanding of community context • Improved corporate ability to troubleshoot problems

before they become problems, and prevent escalation • Cheaper problem-solving, compared to litigation, etc.• Developed positive relationships with communities,

smoother operations

Benefits to the Company

ERI is piloting the CD-OGM model in the Thilawa SEZ. We see several hopeful benefits:• Resolve issues that have not yet been addressed

through the Income Restoration Plan or other means

• Allow a new multi-stakeholder group to focus on bigger picture problems, rather than having to deal with individual grievances

• Restore image of the SEZ, encourage investment• Set a precedent for elsewhere in Myanmar and

internationally

The Community-Driven Model

in the Thilawa SEZ

ERI has conducted 4 workshops so far, including:• Learning about grievance mechanisms• Identifying scope of impacts and harms

already experienced

The community appointed a 10-member committee to proceed with designing the CD-OGM through bi-weekly workshops. The committee will report back and consult with the community along the way.

Process So Far

• CSR Europe’s Management of Complaints Assessment (MOC-A) Results, “Assessing the Effectiveness of Company Grievance Mechanisms” (2013), available at http://www.csreurope.org/sites/default/files/Assessing%20the%20effectiveness%20of%20Company%20Grievance%20Mechanisms%20-%20CSR%20Europe%20%282013%29_0.pdf

• Office of the Compliance Advisor/Ombudsman (CAO), “A Guide to Designing and Implementing Grievance Mechanisms for Development Projects” (2008), available at http://www.cao-ombudsman.org/howwework/advisor/documents/implemgrieveng.pdf

• Barbara Linder, Karin Lukas, & Astrid Steinkellner, “The Right to Remedy: Extrajudicial Complaint Mechanisms for Resolving Conflicts of Interest between Business Actors and Those Affected by their Operations” (Ludwig Boltzmann Institute of Human Rights, April 2013), at pp. 44-58, available at http://bim.lbg.ac.at/files/sites/bim/Right%20to%20Remedy_Extrajudicial%20Complaint%20Mechanisms_2013_1.pdf

• International Institute for Environment and Development, “Dispute or Dialogue? Community perspectives on company-led grievance mechanisms” (2013) at pp. 110-121, available at http://pubs.iied.org/pdfs/16529IIED.pdf

• Fair Foods Program: http://www.fairfoodprogram.org/

References / For Further Reading