The provision of a remedy is a separate, critical process that due diligence should enable and support. This chapter describes different ways a company in the cocoa sector can provide for or co-operate in remediation in the case of child labour and forced labour risks and impacts when appropriate.
Business Handbook on Due Diligence in the Cocoa Sector
Addressing Child Labour and Forced Labour
Remedy: Provide for or co‑operate in remediation when appropriate
Abstract
Provide for or co‑operate in remediation when appropriate
Remediation seeks “to restore the affected person or persons to the situation they would be in had the adverse impact not occurred (where possible) and enable remediation that is proportionate to the significance and scale of the adverse impact” (OECD, 2018[3]).
According to the OECD recommendations (Figure 5), when the enterprise identifies that it has caused or contributed to actual adverse impacts, these impacts should be addressed by the company providing for or co‑operating in their remediation.
Remedy may include “apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions (whether criminal or administrative, such as fines), as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition” (OHCHR, 2011[36])
Child labour remediation is about supporting children, their families and communities to remove children from a situation of child labour. In practice many of the activities and support that can be provided to help remove children from a situation of child labour are similar to measures to prevent and mitigate future cases; please see Chapter 3 for more information on prevention and mitigation. Similarly, forced labour remediation is the process of supporting victims (children or adults) to leave situations of forced labour and as far as possible correct the harms experienced by victims. Companies should consult affected persons, including children, adolescents, caregivers, or the family to ensure they understand what is happening and why. Companies should also discuss the type of support required to enable the child to avoid child labour or forced labour.
Examples of remediation for child labour include:
a) providing education materials and supporting educational costs (e.g. school kits, uniforms, fees, stipends and other items that can facilitate a child’s entry into the education system);
b) contributing towards education support services (e.g. tutoring and bridge classes to children);
c) providing vocational training or apprenticeships.
Where children lack access to quality education, companies could also consider contributing to community interventions such as building critical infrastructure in collaboration with government and local stakeholders. Companies who cause or contribute to the child labour should be ready to provide additional financial or logistical support to support a case referred. Figure 9 provides a decision tree methodology to help companies select support for children and communities.
Examples of remediation for forced labour include:
Restitution to ensure workers are paid back any owed wages or other financial penalties, such as interest on loan payments.
Compensation for pain and suffering endured.
Rehabilitation that could include provision such as stipends, legal assistance, assistance with repatriation, if desired.
Medical care, psychological support or other assistance that the victim, owing to their circumstance, may not be able to access on their own.
Figure 9. How to select support for children and communities
Source: ICI (2022[33]), Decision tree: Selecting support to prevent and remediate child labour through a CLMRS, https://www.cocoainitiative.org/knowledge-hub/resources/selecting-support-prevent-and-remediate-child-labour-through-clmrs
Grievance mechanism
When appropriate, the OECD recommends companies provide for or co‑operate with legitimate grievance mechanisms through which impacted stakeholders and rightsholders can raise complaints and seek to have them addressed with the enterprise. These can include both state and non-state processes. In some cases, enterprises may have an obligation to participate in state‑based judicial grievance mechanisms or non-judicial mechanisms such as specialist government bodies (see Box 9 on OECD National Contact Points for Responsible Business Conduct as an example), consumer protection agencies, regulatory oversight bodies, or environmental protection agencies. Companies may also co‑operate in non-state‑based grievance mechanisms, such as a multi-stakeholder grievance mechanism or through Global Framework Agreements between trade unions and multinational companies.
Operational-level grievance mechanisms operated by companies also play an important role in providing access to remedy as they alert companies to suspected adverse impacts that need to be addressed. Examples include in-house worker complaint mechanisms or third-party complaint systems. Operational-level grievance mechanisms should be designed in line with the core effectiveness criteria set out in the UNGPs and the OECD Guidelines which highlight that mechanisms should be legitimate, accessible, predictable, equitable, transparent, rights compatible and a source of continuous learning. In the cocoa sector, companies can work with farming communities to set up grievance focal points. This allows the communities to discuss issues and identify and implement solutions with support from the local farmer groups.
Box 9. Remedy through the OECD National Contact Points for Responsible Business Conduct
The OECD network of National Contact Points for Responsible Business Conduct (NCPs for RBC) are agencies established by governments who have adhered to OECD recommendations on Responsible Business Conduct. Their responsibilities are twofold: to promote the OECD Guidelines and related due diligence guidances, and to contribute to the resolution of issues through a voluntary process called “specific instances”. To date, 51 governments have an NCP, and over 620 specific instances have been received by the network.
In 2014, the NGOs, Equitable Cambodia (EC) and Inclusive Development International (IDI), submitted a case (“specific instance”) to the NCP of Australia alleging that ANZ Bank had not observed the Guidelines relating to the company’s involvement with Phnom Penh Sugar Co. Ltd (PPS) in Cambodia. The Australian NCP considered issues including land seizures, child labour and destruction of crops and property by PPS in relation to a sugar cane plantation for which ANZ Bank had provided financing. Despite undergoing mediation facilitated by the NCP, the parties were unable to reach agreement. Civil society actors on the ground continued to raise the issue of compensation and provided essential support to the NCP to facilitate this during the follow up phase. As a result, the parties re‑engaged in discussions and ANZ Bank agreed to provide financial contribution corresponding to the gross profit it earned from this operation to help alleviate the hardships faced by the affected communities and support their efforts toward rehabilitation.
Source: OECD (2020[37]), National Contact Points for Responsible Business Conduct: Providing access to remedy – 20 years and the road ahead, https://mneguidelines.oecd.org/NCPs-for-RBC-providing-access-to-remedy-20-years-and-the-road-ahead.pdf.