Final statement. The complainant: 3F. ctr. The subject of the complaint: Greenpeas Enterprise ApS

Transcription

1 August 14, 2014 The complainant: 3F ctr. Final statement The subject of the complaint: Greenpeas Enterprise ApS The Mediation and Complaints-Handling Institution for Responsible Business Conduct (NCP) received the complaint on October 22, Danish Mediation and Complaintshandling Institution for Responsible Business Conduct Dahlerups Pakhus Langelinie Allé Copenhagen Tel Fax CVR-nr post@businessconduct.dk The NCP has undertaken an investigation of the case, cf. Act on a Mediation and Complaint-Handling Institution for Responsible Business Conduct (the Act on Danish NCP), number 546 from June 18, 2012, section 7, paragraph 4. The NCP has found that it has not been established that the subject of the complaint has withheld employees' passports and thus have made a gross violation of the OECD Guidelines for Multinational Enterprises (OECD Guidelines). On this basis, the NCP has no reason to express critique in this concrete case, cf. the Act on Danish NCP, section 7, paragraph 6. The specific circumstances of the case: The complaint regards several matters; that the subject of the complaint has violated the OECD Guidelines for Responsible Business Conduct, by underbidding standard of wages and working conditions in those countries, where the subject of the complaint operates (chapter V on Employment and Industrial Relations) as well as violating the employees rights in the form of discrimination based on nationality and withholding The Mediation and Complaints-Handling Institution for Responsible Business Conduct deals with cases relating to non-compliance of the OECD Guidelines for Multinational Enterprises. The Institution is the OECD s Contact Point in Denmark and is responsible for raising awareness of what responsible business conduct entails.

2 2/7 passports etc. (chapter IV on Human Rights). The complainant informs: Violations of the OECD Guidelines on employment and working conditions: The complainant states that the subject of the complaint hires employees for seasonal work mainly from Romania, Bulgaria and Portugal. In the spring the work begins in Portugal and it continues in Denmark in the summer months. The salary for the same work taking place in the different countries is different. Usually the employees sign two employment contracts one in Portuguese and one in English, and those two are not identical. Expenses concerning transport and housing are deducted from the salary. The complainant describes the provided housing conditions as very poor. The complainant further describes that eight employees often live in one room, which the employer rents to employees for 350 Euros a month. There is no information on the website of the subject of the complaint that the salary in Denmark depends on the employees productivity. This type of salary system is established according to Danish collective agreements and entails that the hourly pay must not be reduced even though the employees does piecework. The complainant informs that the salary standard in Denmark is established according to collective agreements and that it for workers amounts to DKK Additionally 7.75% is added to the hourly pay which amounts to DKK an hour. Violations of the OECD Guidelines by withholding passports and differential treatment: According to the complainant, the subject of the complaint has on one or more occasions withheld some of the employees passports. The subject of the complaint has explained to the complainant that the passports are withheld because the employees in question have received pay in advance. A copy of a paycheck is enclosed in the complaint from which it is apparent that pay in advance and pay deduction for transport and housing resulted in a negative balance by the end of a five weeks working period in Portugal. The complainant writes that they have had several meetings with the owner of the company. However, these meetings were without results. Furthermore, the complainant informs that part of the issues in the complaint is raised in the collective agreement system, as the one-man company is member of an employer s association and thus liable to pay remuneration by agreement. However, he outsources the seasonal work to another company which he also owns but is not member of an employer s association.

3 3/7 The Danish NCP s initial assessment (case procedure step 1): After having received the complaint, the Danish NCP conducted an initial assessment according to the Act and Executive order on a Mediation and Complaints-Handling Institution for Responsible Business Conduct. The NCP assessed that the complaint fulfilled the criteria to be approved for further consideration. On November 22, 2013, the Danish NCP in a letter to the parties encouraged them to enter into dialogue in order to resolve the case by mutual agreement, cf. Act on Danish NCP, section 7. The parties try to resolve the case by mutual agreement (case procedure step 2): On November 28, 2013, the complainant informed the Danish NCP that the parties have agreed on a settlement at a joint meeting on November 27, 2013 and that the complainant hereafter considers the case to be closed. The Danish NCP notes that it is the decision of the Danish NCP when a case is closed on the basis of a settlement between the parties. A majority in the Danish NCP did not consider the case to be closed as the complaint concerned allegations of gross violations of the OECD Guidelines for Multinational Enterprises, including that the subject of the complaint on one or more occasions allegedly has held back the employees passports. The settlement only took into consideration the issues which lay within the competencies of the collective agreement system. The Danish NCP did not receive information on whether or not the parties took the additional allegations into consideration, particularly the withholding of the employees passports. Therefore, the NCP in a letter from January 21, 2014 requested the parties for further information on the allegations concerning the withholding of the employees passports. Preliminary investigation (case procedure step 3): More information from the complainant: As evidence of the claim for withholding passports the complainant has referred to the articles in the magazine Fagbladet 3F of July 20, 2013 and July 30, Additionally the complainant has informed the NCP in an from February 3, 2014, that the journalist behind the articles could be contacted regarding the documentation underlying the two articles. The Secretariat contacted the reporter on March 17, 2014 and

4 4/7 asked him to elaborate on the information and provide further evidence of the claim for withholding passports. The journalist confirmed that he had interviewed the subject of the complaint several times as background for a series of articles in the magazine Fagbladet 3F and that the subject of the complaint confirmed that he had withheld some employees passport as a guarantee for paying salary in advance. The journalists also reported to have interviewed a director of a purchase center for fruits and vegetables. The purchase center bought peas from the subject of the complaint and sold them to larger Danish supermarkets. Based on the articles in the magazine Fagbladet 3F the director of the purchase center asked the subject of the complaint to explain the allegation of retention of passports. Afterwards the director of the purchase center confirmed in writing to the reporter from the magazine Fagbladet 3F that he had a meeting with the subject of the complaint. The subject of the complaint had indicated that passports had been retained, but that this practice would come to an end. The NCP has not been given access to the written confirmation due to the press ethical rules of the magazine. Following the articles the journalist has stated that he also interviewed two Romanians who have worked for the subject of the complaint in Portugal and Denmark. The two Romanians have not had their passports revoked, but know other Romanians whose passport has been revoked. The NCP has no information on the identity or contact information of the persons in question. The complainant informed the NCP by telephone on April 7, 2014, that the complainant no longer considers themselves as being a party in the case. The complainant would therefore no longer be interested in participating in the further handling of the case eg. by mediation. More information from the subject of the complaint: Despite of repeated written inquiries and inquiries by telephone the NCP has not received written feedback from the subject of the complaint in relation to the request for additional information regarding the retention of passports. Additional information obtained in the preliminary investigation: The NCP made an assessment of the website of the subject of the complaint. A range of information on pay and working conditions in the company are available here. There were no details of the website that employees must submit their passports to the subject of the complaint. The following can be found on the website under "what to bring": "If you

5 5/7 do not have a Danish CPR number you must bring: - Copy of passport or ID-card" 1 This seem to indicate that the subject of the complaint does not withhold employee's passport anymore. An article in the magazine Fagbladet 3F from July 24, 2013 refer that a group of employees working for the subject of the complaint showed up at the complainant's premises in Nyborg. Here a representative read a statement out loud including the following reference: "There is nothing that can be called slavery, or anything near it. No one has been detained here by force. Nobody s passports have been detained. No interest is charged on advance payments, the spokesperson read". The Secretariat has not been able to get more information about or to be referred to the spokesperson from the complainant. The NCP secretariat contacted the director from the purchase center mentioned above on March 19, 2014 about his statements to the magazine Fagbladet 3F. The director confirmed verbally that when the situation with the passports was brought to his attention in the summer of 2013, he asked the subject of the complaint for an explanation. During a meeting the subject of the complaint explained the situation. The director asked the subject of the complaint to ensure that the mistake would not reoccur, it should be documented that it was an isolated mistake and that the practice would be adjusted in the future. The director was of the opinion, that the subject of the complaint most likely has stopped withholding employees passport. Conclusion of the preliminary investigation (case procedure step 3): Based on the preliminary investigation the NCP could not dismiss that the defendant, at least for a period, had retained some of the employee's passport. On this basis the NCP had no reason to dismiss the case, cf. the Act on Danish NCP, section 7, paragraph 2. The NCP has accepted the case as there was a potential gross violation of human rights. Therefore the NCP has decided to conduct a proper investigation of the matter, cf. the Act on Danish NCP, section 7, paragraph 4. Actual investigation (case procedure step 5): The NCP is of the opinion that it is difficult to carry out further investigations into the matter and find additional documentation beyond what has already been provided as part of the preliminary investigation. The complainant has withdrawn the complaint and do not wish to contribute further to the case handling. This complicates any further investigations in factories or greenhouses in Portugal, which the complainant 1

6 6/7 could have information about. In addition, the complainant has not responded to inquiries from the NCP since February Most of the complainant's initial complaints regarding wages and working conditions are according to the parties resolved in the dispute settlement body within the collective agreement system. The issue of retention of passports also seems to be resolved going forward, as the company's website informs that employees only are expected to bring a copy of the passport. By settling in the dispute settlement system and by nit withholding employees' passports going forward, the subject of the complaint appears to have shown a willingness to abide by the principles of the OECD Guidelines for Multinational Enterprises. This is consistent with the overall purpose of the guidelines, which the NCP attributes positive impact in its assessment of the case, cf. remarks to Act on Danish NCP section Final statement: The NCP has found that it has not been established that the subject of the complaint has withheld employees' passports and thus made a gross violation of the OECD Guidelines for Multinational Enterprises. On this basis, the NCP has no evidence to conclude that the subject of the complaint has violated the OECD Guidelines, cf. the Act on Danish NCP, section 7, paragraph 6. The NCP wants to emphasize, however, that it is a gross violation of the OECD Guidelines to retain employees' passports, cf. the OECD Guidelines, Chapter IV on Human Rights. The OECD Guidelines chapter on human rights draws on the UN Covenant on Civil and Political Rights. It is clear from Article 8 that "no one shall be required to perform forced or compulsory labor", and Article 12 that "everyone lawfully within the territory of a State shall, within that have the right to move freely and freedom to choose his residence." The NCP notes that the retention of employees' identification papers such as passports can have as a result that those persons are not able to leave the workplace if those persons in question no longer want to work for a company and the employer refuses to return their passports. Ultimately, they are being held against their will and thus under conditions that can be associated with slavery, see UN Covenant on Civil and Political Rights, Article 8. Furthermore, the retention of identification papers may have as a result that a person does not have the ability to move freely within the borders

7 7/7 of a country or have the opportunity to leave the country, see UN Covenant on Civil and Political Rights, Article 12. The NCP recognizes that an employer may require documentation of the employee's identity, inter alia if the company pays salary in advance. There might be a particular need to require identification papers, in the case of temporary staff. The NCP recommends that companies, for example, ask the employees to bring a copy of their passport or the employer after the consent of the employee, take a photocopy of the employee's passport or equivalent. On behalf of the Mediation and Complaints-Handling Institution for Responsible Business Conduct. Mads Øvlisen Chairman