Dhaka Principle 9 – Access to Remedy is Provided

Throughout 2022, IHRB is marking ten years of the Dhaka Principles for Migration with Dignity with guest commentaries from representatives of business, trade unions, civil society organisations, and the UN system that reflect on the continuing importance of each of the twelve individual Principles. These experts are exploring challenges relating to each Principle in turn and discussing how faster progress can be made.

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Dhaka Principle 9 – Access to Remedy is Provided

The ninth component of the Dhaka Principles for Migration with Dignity provides that migrant workers should have access to judicial remedy and to credible grievance mechanisms, without fear of recrimination or dismissal. In accordance with Principle 22 of the UN Guiding Principles on Business and Human Rights (UNGPs), where businesses identify that they have caused or contributed to adverse human rights impacts, they have a responsibility to provide for, or co-operate in their remediation. Effective remediation has both a procedural and a substantive element. Individuals whose rights have been violated should be able to engage in remediation on fair, informed and respectful terms through a legitimate process. They should also be able to obtain remedial outcomes that counteract or make good, the adverse impact, such as apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions and the prevention of harm.  

An operational-level grievance mechanism can be an effective means through which businesses could deliver remediation, provided the mechanism meets the criteria for effective non-judicial grievance mechanisms set out in Principle 31 of the UNGPs. Effective grievance mechanisms can also act as an early and proactive warning system to notify companies of potential human rights risks. Yet, few companies give access to remedy the same prominence as human rights due diligence. Grievance mechanisms barely feature in sustainability or modern slavery disclosures. Moreover, companies and multi-stakeholder initiatives that have implemented grievance mechanisms rarely report on the effectiveness of these systems in delivering access to remedy.     

Few companies give access to remedy the same prominence as human rights due diligence.

Research from the World Benchmarking Alliance and Business & Human Rights Resource Centre on Japanese companies found that 54% of companies surveyed did not have their own grievance mechanisms available for workers who alleged harms in the workplace. The Financial Reporting Council’s review of Modern Slavery Reporting Practices in the UK found that only 18% of companies confirmed they ensure their suppliers operate a formal grievance process. A review of modern slavery statements of Australian companies found that only 16% of companies surveyed committed to providing remedy if they cause or contribute to modern slavery, and only 2% indicated that they have responded to modern slavery risks raised through existing grievance mechanisms.

Companies often point to whistle-blowing systems as evidence of their commitment to provide access to remedy. However, these are designed to enable employees to report corporate wrongdoing such as fraud or theft, and bribery and corruption, or other violations of corporate policies or law to support corporate compliance functions. They are often not fit for individuals or groups to raise concerns about the impact a business has on their human rights. For example, migrant workers in a company’s value chain who are not directly employed by the company, are unlikely to know about the existence of a formal whistle-blowing system. The UNDP’s review of business and human rights in Asia found that “very few” non-State-based grievance mechanisms exist in Asia and those that do often have fundamental design flaws, and do not fulfil many of the effectiveness criteria set out in UNGPs Principle 31.

As part of a study of State-based and non-State-based grievance mechanisms in Southeast Asia (due to be released in early 2023), The Remedy Project, interviewed migrant workers in Malaysia on their perceptions of the extent to which they were able to access effective remedies when needed within their own work contexts. Workers interviewed did not feel that company-level grievance mechanisms were sufficiently independent or adequately protected their confidentiality so they could trust that these mechanisms would adjudicate their claims fairly. Another group of migrant workers also reported retaliation by their supervisors after they lodged complaints. Workers may even face the risk of defamation and Strategic Lawsuits Against Public Participation (SLAPP) suits, which may stifle workers’ ability to have their claims heard and acted upon.

These challenges are often mirrored in State-based (judicial and non-judicial) grievance mechanisms. Despite government campaigns to promote these mechanisms, migrant workers are often not aware that they exist, and if they are known, they do not trust that they could be of help or are unable to access them. In countries of destination, migrant workers are often unable to access State systems once they have been dismissed, as their permission to remain in the country is usually linked to employer-tied visas and work permits. State agencies responsible for enforcement are often not properly resourced, causing obstruction in access to justice and remedy. Language barriers and limited access to legal aid prevent migrant workers from accessing the information and assistance they need to navigate State systems, creating a power and information asymmetry between migrant worker claimants and defendants.

These challenges are often mirrored in State-based (judicial and non-judicial) grievance mechanisms. Despite government campaigns to promote these mechanisms, migrant workers are often not aware that they exist, and if they are known, they do not trust that they could be of help or are unable to access them.

The complementarity between State and non-State-based systems is also not well addressed by States and businesses. The commentary to UNGPs Principle 25 states that State-based (judicial and non-judicial) grievance mechanisms form the foundation of the ecosystem of remedy, within which, operational-level grievance mechanisms can offer early-stage recourse and resolution. However, in reality, corporate grievance policies are silent or unclear about when grievances received through operational-level grievance mechanisms should be referred to State-based grievance mechanisms, creating gaps in coverage. States have also yet to fulfil their role, pursuant to UNGPs Principle 28, in raising awareness and facilitating access to non-State-based grievance mechanisms – although the more recent mandatory human rights due diligence laws such as the German Supply Chain Due Diligence Act imposes obligations on companies to take immediate remedial action where human rights violations are identified. In the absence of a cohesive ecosystem of remedy, the burden falls upon migrant workers to understand and select the pathway to remedies that would deliver the best outcomes in their case. However, migrant workers are often poorly resourced, with limited access to information, financial resources, and time to engage in remediation. One migrant worker interviewed by The Remedy Project explained that they preferred to just quit their job if they face any issues in recruitment or employment, as they did not have access to information on grievance systems and feared that attempting to enforce their rights would only result in trouble for them.

In a landscape where grievance mechanisms are designed without genuinely engaging migrant workers to understand their needs and perspectives, workers prefer to reach out to their peers, informal networks, and civil society organizations for support. Despite serious resource constraints, civil society actors are frequently required to navigate between State and non-State based systems to address gaps in connectivity between worker communities and existing remediation systems that can be complex and unfamiliar. Trade unions can also play an important role in supporting access to remedy. However, in some jurisdictions, local regulations may prevent or disincentivize migrant workers from fully participating in, or accessing support from, trade unions. For example, in Malaysia, migrant workers are not permitted to part of union stewardship or hold executive positions. While migrant workers are permitted to join local trade unions, migrant workers might not trust trade unions to represent their interests, and language barriers, perceived differences in interests, among other factors may prevent migrant workers and Malay workers from organizing together.

The momentum building around strengthened human rights due diligence and sanctions regimes tied to forced labour are providing a fresh opportunity to engage with remediation systems.

In particular, as mandatory human rights due diligence laws proliferate, companies will be pushed to re-think the way they approach risk identification and management. Recent U.S. trade-based measures to prevent imports of goods made by forced labour have also pushed companies subject to bans to take specific remedial actions and measures. An effective grievance mechanism can help companies proactively identify, prevent, mitigate, and remediate adverse human rights impacts, and to show how they are doing so. States will also increasingly feel the pressure to evaluate and upgrade their laws and State-based grievance systems to strengthen their effectiveness in dealing with contemporary business and human rights issues and challenges.

In doing so, it is critical that States and companies ensure that all forms of grievance systems are built around rightsholders. In our work, we have seen companies mistakenly view “remediation” as primarily relating to correcting singular incidents of non-compliance identified in supplier audits, rather than ensuring access to effective remedies for affected workers. Moreover, there is limited focus on understanding and addressing the root causes that are driving situations of exploitation. Similarly, following U.S. Customs and Border Protection Withhold Release Orders, companies too often scramble to repay recruitment fees and related costs, but may neglect to consider how their supply chain model, e.g., “just in time” delivery practices, reliance on sub-contractors, among other factors, may contribute to the risk of exploitation. Corporates and States must view remediation, not as a one-off, post-facto exercise, but as an opportunity to improve existing systems – whether State labour migration policies or corporate governance practices – to better protect rightsholders.  

In countries of destination, migrant workers are often unable to access State systems once they have been dismissed, as their permission to remain in the country is usually linked to employer-tied visas and work permits.

Meaningful engagement with migrant workers in the design, implementation, and evaluation of grievance mechanisms, is critical to ensure that these systems can deliver remedies that meet their needs and drive this systems-based change. For example, the Operational Guidelines for Businesses on Remediation of Migrant Worker Grievances, recommends that developers of grievance mechanisms could create a co-design workshop that brings together workers, credible worker representatives, trade unions, and company management to discuss the issues facing workers and the goals of remediation and monitoring. Workers and others whose rights may be impacted should not be viewed as passive recipients – but instead as active participants who can contribute to the monitoring and evaluation of grievance mechanisms. For example, the Dindigul Agreement to End Gender-based Violence and Harassment entered into between the Tamil Nadu Textile and Common Labour Union, multinational fashion retailer H&M and its supplier, Eastman Exports as well as regional and U.S. NGOs, included a provision for the trade union to train shop floor monitors and union-selected workers to help their co-workers report incidents of gender-based violence identified on shop floors. Other examples include the Milk With Dignity in the dairy industry and Fair Food Programs in tomato farming in the United States.

Civil society, grassroots, and community-based organisations, organizers, as well as trade unions, migrant worker resource centres, and others can help companies to build legitimacy and improve accessibility of non-State-based grievance mechanisms, including by offering the information and expertise necessary for migrant workers to engage on more equitable terms.

Public-private collaboration is crucial. State leadership is necessary to create an enabling environment for remedy and this must be steeped in transparency, accountability, continuous dialogue and learning. Relationship-building between States and corporates as well as, between companies and CSOs are much needed for a healthy remedy ecosystem. For example, seafood company, Thai Union has collaborated with NGO, Migrant Workers Rights Network to monitor implementation of their migrant recruitment policy.

In the next decade of the Dhaka Principles, we hope access to remedy and systems of remediation will be viewed as critical platforms for workers to express themselves and seek enforcement of their rights, promoting healthy dialogue between different actors in the world of work. Rights-focused platforms of this kind can provide companies with fertile learning spaces to improve their practices and engage with other stakeholders to better identify and manage risks, and thereby boost productivity. Although the business agenda, and the human rights agenda, may appear to be diverging, we are all essentially seeking to achieve broad-based economic prosperity. If we make this journey together, we will all get to our destination…slowly but surely.

Trade unions can also play an important role in supporting access to remedy. However, in some jurisdictions, local regulations may prevent or disincentivize migrant workers from fully participating in, or accessing support from, trade unions.

This month’s author is The Remedy Project, a social enterprise based in Asia that works to improve access to justice and remedy for workers in global supply chains. The Remedy Project works constructively with governments, civil society, law enforcement, and the private sector to translate the UN Guiding Principles of Business and Human Rights into practice, and support workers to access remedies where their rights are violated. The Remedy Project’s work is focused in Southeast Asia, and on building regional capacity to address business and human rights. The Remedy Project recently published guidance for suppliers operating in Asia on mandatory human rights due diligence and guidance for businesses in Asia on the EU Corporate Sustainability Due Diligence Directive. Further publications are available on their website.

 

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This month's experts are Archana Kotecha and Danette Chan from The Remedy Project.

Archana Kotecha is the founder and CEO of The Remedy Project. She is recognized as a regional expert on human trafficking and forced labour issues across APAC. A UK-qualified barrister and former corporate lawyer, Archana has over 15 years of experience advising UN agencies, ASEAN bodies, governments, businesses, and human rights practitioners on human trafficking and forced labour. In 2017, Archana was named one of the top ten innovative lawyers in Asia Pacific by the Financial Times and she is also an alumnus of the prestigious International Visitor Leadership Program run by the US Department of State. She is regularly named as an influential changemaker and was most recently named one of Asia’s most inspiring social entrepreneurs by APAC Entrepreneur.

 

 

 

Danette Chan is a Senior Associate at The Remedy Project. She is a Hong Kong and New York qualified lawyer. Danette’s work at The Remedy Project includes advising businesses and industry groups on their human rights policies, conducting assessments of remediation mechanisms, developing guidelines and policy proposals on the ethical and responsible recruitment of migrant workers in Asia, and conducting training for companies on business and human rights.