Chief Commissioner David Rutherford's speech on business and human rights

Chief Commissioner David Rutherford's speech on business and human rights

December 11, 2015

Chief Human Rights Commissioner
David Rutherford
Human Rights Day
10 December 2015
Business and Human Rights

 

I will speak to you today about some of the Human Rights Commission’s work on Business and Human Rights in New Zealand. I will cover the work we have done and the work we are proposing to do. I will do so by reference to the three pillars of the United Nations Guiding Principles on Business and Human Rights.  Virtually all our work has been remedial rather than preventative. Where it has been preventative it has not often been grounded in the United Nations Guiding Principles on Business and Human Rights but that is changing. The UNGPs will now be much more visible in our work.  I will also take a closer look at how a well-known multinational is meeting its responsibilities under Pillar Two of the UNGPs.  

In starting I want to pay respect to our previous EEO Commissioner Judy McGregor who was first to use the UNGPs in our work. In her EEO work, in assisting in the drafting of the new chapter on human rights OECD Guidelines for Multinational Business, in the work on slave fishing in New Zealand’s exclusive economic zone and in her brilliant work in the Caring Counts inquiry, and in the work with UN Women and others on the launch of Women’s Empowerment Principles,  Judy and the Commission staff that worked with her were the NZHRC’s pioneers  in business and human rights.  Jackie Blue has continued this work and developed new ways, often using data visualisation, to encourage government as an employer and business more generally to meet human rights obligations or responsibilities.

The other pioneers at the Commission were and are the Commission’s Chief Mediator and her unlawful discrimination mediation team.  Today much of their work fits squarely into UNGP Pillar Three.  Before there were UNGPS the Commission was doing the work the UNGPs require to be done.  Today I am glad to say that all Commissioners and most staff are engaged in business and human rights in some way or other. 

These days Business and Human Rights is encapsulated the UNGPs and three UNGP pillars – Protect, Respect and Remedy. However in New Zealand human rights and business has been the business of the Human Rights Commission for over a decade.  I will paint some of that picture for you. I will also indicate where we are going in New Zealand and where business is going globally.

 

UNGP Pillar One  

Pillar One is the State’s binding legal obligation to meet it human rights obligations to people in New Zealand and protect them from human rights abuse by business.

This is not a new obligation of the State.  It is just part of the obligation undertaken by all countries like New Zealand that have ratified the major UN human rights conventions to protect people in that State from human rights abuse. The UNGPs clarify that obligation in relation to business. Pillar One also states that businesses owned by the State have the same legal obligation. Other businesses have a responsibility to respect human rights wherever they operate.

Since the UNGPs were adopted in 2011 business particularly in Europe and North America has been much more active than most governments in implementing the UNGPs.  Today only 8 countries have a National Plan of Action  for BHR in place and fewer have fully integrated the UNGPs into their law and policy. Dozens more NPAs for BHR are underway but mainly in Europe and the United States. Although closer to home the ASEAN states are moving.   Our Government has no current plans to develop a NAP for BHR. We think it should and that it should be incorporated into our current National Plan of Action for Human Rights.

Practically the current state of affairs as regards Pillar means that Governments around the world have yet to the implement the sort of human rights compliant procurement and work related policies the UNGPs require while some  the leading business are well down the track in their directly owned operations and their direct suppliers. Indirect suppliers are more challenging but they are being worked on by business too.  

The Commission has work preliminary underway to ascertain how many New Zealand Government ministries, state owned enterprises and crown entities have meet their UNGP Pillar One obligations by having a Human Rights Policy.  We know from our earthquake work that state owned businesses like EQC and Southern Response were not aware that they were clearly captured by Pillar One before the Commission advised them. We agree with MBIE’s determination that EQC was not a business for the purposes of complainants making complaints to MBIE under the OECD Guidelines on Multinational Business which only apply to multinational businesses. However, government owned organisations like EQC and Southern Response are caught by UNGP Pillar One. 

The other thing most leading multinational private sector businesses will have is a procurement or supplier policy that requires business to meet their UNGP pillar two responsibilities to respect human rights in order to be a supplier. UNGP Pillar One requires similar activity from Government ministries and agencies and state owned enterprises in but it is an obligation rather than a responsibility.  The New Zealand State has a world leading whole of government procurement process. It is not yet world leading in UNGP compliance.

The Commission has already raised with the MBIE the need to take a more UNGP focused approach to the Whole of Government Procurement Guidelines. MBIE has advised that they will involve the Commission in the next review of those guidelines.  While current WOG Procurement Guidelines do require agencies to meet “international obligations’” in procurement the Commission believes the State needs to match the sort of clarity  around the need for suppliers to meet their human rights responsibilities that leading private sector businesses have for suppliers. You will see what one of the leading businesses does later.

The G7 Leaders declared in June this year that the G7 will:

 

  • Will strive for better application of internationally recognized labour, social and environmental standards, principles and commitments (in particular UN, OECD, ILO and applicable environmental agreements) in global supply chains.
     
  • Supports the UN Guiding Principles on Business and Human Rights and welcomes the efforts to set up substantive National Action Plans.
     
  • Will take action to promote better working conditions by increasing transparency, promoting identification and prevention of risks and strengthening complaint mechanisms.
     
  • Encourages enterprises active or headquartered in G7 countries to implement due diligence procedures regarding their supply chains, e.g. voluntary due diligence plans or guides.
     
  • Welcomes initiatives to promote the establishment of appropriate, impartial tools to help consumers and public procurers in G7 countries compare information on the validity and credibility of social and environmental product labels.
     
  • Supports a “Vision Zero Fund” to be established in cooperation with the International Labour Organization (ILO).
     
  • Commits to strengthening mechanisms for providing access to remedies including the National Contact Points (NCPs) for the OECD Guidelines for Multinational Enterprises. In order to do so, the G7 will encourage the OECD to promote peer reviews and peer learning. 

 

It is fair to say that the New Zealand Government can soon expect an external nudge to get on with a NPA for BHR from leading implementer nations like the United Kingdom, Germany and the United States all of whom have or will have NPAs on BHR shortly.  Our Government can also expect to find compliance with the UNGPs discussed in the context of the negotiation of a EU/NZ free trade agreement.  New Zealand has after all just agreed a new partnership relationship and cooperation agreement with the EU that reaffirms a mutual commitment to support democracy, the rule of law, human rights, including at multilateral level and in third countries. 

In so far as UNGP Pillar One is concerned the work of the Human Rights Commission, and other human rights agencies, assists the State to meet its obligation to promote and protect business and human rights in New Zealand. I am only going to focus on the NZHRC but it is obvious that agencies like the Privacy Commission, Health and Disability Commission and many other similar rights based agencies are involved in protection of people from human rights abuse by business. 

All of the Equal Employment Opportunity in Employment work and work such as that we have done in inquiries about accessibility, carers in rest homes or the Canterbury Earthquake is business and human rights work.   

A great deal of the work we do around law and policy is UNGP Pillar One related work.  

All Commissioners, engage in public and private advocacy on business related human rights issues. For example not long ago a new page appeared on the Trademe site. How to find a flatmate and not breach the Human Rights Act.  The was the result of behind the scenes work by the Commission and public advocacy by the Commission’s Race Relations Commissioner.  You will see other Commissioners advocating for EEO and Disability related human rights and business issues from the gender pay gap to inclusive broadcasting of sports events. We are also advocating about the same issues about surveillance that the members of the Global Network Alliance like Microsoft and Google advocate for. Our submission to the Security and Intelligence Review argues that the same principles that apply to Government surveillance should apply to non State surveillance – this is particularly important in relation to the use of big data by business.

Many of the business related complaints we deal with are about employment and pre-employment discrimination.  That is why we have promoted business and human rights by producing the A-Z Guidelines on Pre-Employment.  We are in the process of updating those now.  We have also just published jointly with the Ombudsman guidelines on what reasonable accommodation of disabled people is. This is also BHR guidance. 

Next year we will work with some of New Zealanders biggest capital market investors to introduce New Zealand securities issuers to the UNGPs and to better understand to reporting frameworks they could consider to meet their Pillar Two obligations. We have other work underway as well that we will announce next year. We do intend to work closely with the Australian Human Rights Commission because to all intents and purposes Australasia is one market for businesses. 

 

UNGP Pillar Three – the obligation of the State and the responsibility of business to provide remedy for human rights abuse by business. 

It may seem strange to deal with Pillar Three before Pillar Two but I am going to use a very practical example of Pillar Two work by a business to conclude this speech.  And it is in what is now called UNGP Pillar Three that the Human Rights Commission has deep capability and experience. 

The New Zealand Human Rights Commission and its predecessors has been assisting business and its employees and customers  to resolve human rights disputes  since at least 1993.

Between 1993 and 2003 either the Office of the Race Relations Conciliator or the Human Rights Commission investigated and made findings of discrimination.  The Office of the Race Relations Conciliator and the investigation processes that office ran were abolished in 2003. The advocacy work for the promotion of harmonious race relations then became the role of the human rights commissioner called the Race Relations Commissioner and the unlawful racial discrimination complaints role was taken on by the Chief Mediator albeit with no adjudicative role.

Since 2003 the Human Rights Tribunal, not the Commission, has been the adjudicator of human rights disputes.  The Commission’s main remedy role, via the Chief Mediator and her team has been to resolve disputes through mediation.  Commissioners do not have a role in matters dealt with by the Chief Mediator.  The Chief Mediator’s role at least as it pertains to the Government as an employer and more generally to private sector business for all areas and grounds of unlawful discrimination is a UNGP Pillar Three role. MBIEs roles in employment relationship dispute resolution are another UNGP Pillar Three role as is MBIEs National Contact Point role under the OECD Guidelines.

About two-thirds of the Commissions complaints of unlawful discrimination are about the private sector business. That’s around 650 complaints each year. Another 100 complaints about unlawful discrimination are about government agencies as employers.  These are all business and human rights complaints.  So 750 or 75% of our unlawful discrimination complaints are business and human rights complaints.  In modern human rights jargon 75% of our mediation work is UNGP Pillar Three work.  

The majority of our complaints about business are on the grounds of racial/religious discrimination or disability discrimination.  

18 per cent of all complaints received are about businesses providing accommodation and/or food services. Other significant areas of complaints about business are about retail businesses, private health care and social assistance, Information, media, telecommunications businesses and businesses in the financial sector and insurance services. 

The process we use to resolve business and human rights complaints is mediation. 

It is a perfect dispute resolution mechanism for a subject matter where the effect of an action (discrimination) falls differently for each person. 

After the infringement of a human right is established, how the person affected wants to deal with that is often very subjective, as is the context and robustness of the individual. 

The process we use is flexible, amenable to the context, confidential, remedial and successful. It is a great process for learning about human rights, if you happen to find yourself in dispute about that. Around 80 per cent of the complaint we receive are resolved in some way.

The other UNGP Pillar Three activity the Commission has encouraged has been to ensure that people affected by the insurance issues in Canterbury are aware of the human rights chapter in the OECD Guidelines and that MBIE is New Zealand’s National Contact Point under those Guidelines. A significant number of complaints have been made. This is the first big test of New Zealand’s National Contact Point.
 

*UNGP Pillar Two 

In many ways the private sector is leading the way globally. This is not a surprise because the business imperative in obvious to large multinational business.

This year Unilever was the first business to meet its UNGP Pillar Two reporting responsibility by publishing a Human Rights Report. Other businesses have met this responsibility by incorporating it into their ongoing Sustainability reporting. 

UNGP Pillar Two means that a responsible business will have a human rights policy, will conduct human rights due diligence on its business including its supply chain,  it will have a human rights abuse remedy process and a human rights reporting framework.  

The human rights policy of leading private sector businesses cover areas like:

  • Respect for Human Rights
  • Community and Stakeholder Engagement
  • Valuing Diversity and Ensuring non discrimination
  • Freedom of Association and Collective Bargaining
  • Safe and Healthy Workplace
  • Workplace Security 
  • Forced Labour and Human Trafficking
  • Child Labour
  • Work Hours, Wages and Benefits 

I’d now like to talk about a multinational whose human rights work is changing how business thinks about its Pillar Two human rights responsibilities.  It is just one example.  Other companies that have a presence in New Zealand like adidas, Unilever and Nestle are also world leaders in implementing the UNGPs.  Many other companies are doing great things but we need to see more particularly in New Zealand.

One year ago today, on Human Rights Day 2014, Coca Cola released an updated and much expanded Human Rights policy that combines its  existing Human Rights Statement, Workplace Rights Policy and 2012 Global Mutual Respect Policy. 

Coca Cola’s Human Rights Policy is guided by international human rights principles encompassed in the Universal Declaration of Human Rights, the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work and the United Nations Global Compact.

I am going to explain Coca Cola’s UNGP Pillar Two work using its human rights app. Closer  to home Coca Cola Amatil which is a Coca Cola bottler and part of its supply chain won this year’s supreme White Camellia Award for work in gender diversity but its diversity and human rights work is broader than that .  Three years ago it won a White Camelia Award for work in its supply chain where all 600 of its suppliers are expected to comply with its policies. Coca Cola has tens of thousands of suppliers globally, including Coca Cola Amital. Coca Cola’s policies will ripple through its supply chain and then through its suppliers supply chain just as Unilever’s will ripple across its 76,000 suppliers and those suppliers.  Let’s have a look at Coca Cola’s human rights app.  It explains what the Pillar Two obligations are and illustrates how Coca Cola is approaching its Pillar Two obligations.

 

 

ENDS

Chief Commissioner David Rutherford

David Rutherford was appointed Chief Human Rights Commissioner on September 2011. Prior to his appointment, he was the managing director of Special Olympics Asia Pacific and based in Singapore.

He has held senior executive roles in building materials and agribusiness businesses operating in New Zealand and Australia, has been chief executive of the New Zealand Rugby Union and has worked as a corporate, securities and commercial lawyer in New Zealand and Canada.

Mr Rutherford has a strong history of involvement in sports and has lectured in sports law at Victoria University. He has been a volunteer Board member in rugby union, netball, Paralympics New Zealand, Special Olympics New Zealand, Special Olympics International and for the Attitude Trust. 

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