Canada’s National Contact Point’s Final Statement - Endeavour Mining Corporation and a Labour Union
24 October 2017
1. A Request for Review regarding the activities of Endeavour Mining (hereinafter referred to as “Endeavour” or “the Company”) in Mali,was submitted to the Canadian NCP on May 19, 2015 by “Le collectif des anciens travailleurs de SAER-Endeavour/Kenieba-region de Kayes”, represented by the Secretary General of the labour union Fédération Nationale des Mines et de l’Énergie (FENAME) (hereinafter referred to as “the Notifier”) on behalf of former and current employees of the Company. The Request for Review centers on Endeavour’s activities at the Tabakoto gold mine, located in Kenieba in the region of Kayes in Mali, which is operated by SEMICO, a subsidiary of Endeavour. At the time of the filing of the case, Endeavour was a Canadian mining company, headquartered in British Colombia.
2. In the Request for Review (RfR), the Notifier made allegations of wrongful dismissal of 72 employees in February 2013 and a complaint about lead-exposure of certain employees, leading to detrimental health effects. The Request for Review alleges these issues contravene the Concepts and Principles, and General Policies chapters of the OECD Guidelines for Multinational Enterprises (OECD Guidelines).
3. The NCP is a dialogue facilitation mechanism to help parties resolve issues around the implementation of the OECD Guidelines by multinational companies. The Canadian NCP followed the procedures prescribed in the Procedural Guidance to the OECD Guidelines (section C, page 72 of the 2011 edition) and the NCP Procedures Guide (http://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/procedures_guide_de_procedure.aspx?lang=eng). A summary of the process is included in the Annex.
4. The NCP’s initial assessment concluded that the case had merit and that both issues could benefit from a dialogue between the parties, despite the fact that a legal process is ongoing in Mali on certain employment issues related to this case. A facilitated dialogue was offered by the NCP and accepted by the parties. The dialogue, facilitated by the NCP, took place between September 2016 and March 2017, and consisted in a two-day video-conference and a series of conference calls with parties separately. All of the NCP process was held in both English and French, which created additional challenges.
5. The NCP recognizes that the Company showed good will and transparency during the process and committed to a series of actions, some of which regarding occupational health and safety, were taken proactively during the dialogue. While the dialogue did not result in a mutually agreeable solution between parties per se, the process generated concrete positive outcomes in the form of a list of actions and commitments, by Endeavour, on both the labour and health questions, that are detailed in this Final Statement. In the NCP’s view, this process has raised an important and useful discussion on the OECD Guidelines expectations on a company’s due diligence vis à vis its sub-contractors with respect to CSR related impacts as well as communication and transparency issues when significant workforce changes take place within a company.
6. The Notifier expressed his appreciation for the NCP’s role and process. The NCP thanks both parties for their cooperation, and makes a series of recommendations to Endeavour as detailed below, which are intended to further the implementation of the Guidelines by the Company.
NCP Recommendations and Request
7. Recommendation 1: The NCP recommends that Endeavour review or put in place a process by which the Company can meet the requirement of due diligence in relation to its sub-contractors, in accordance with Chapter II, paragraph 12 of the OECD Guidelines, in particular as it pertains to labour and occupational health and safety related issues.
8. Recommendation 2: The NCP recommends that Endeavour communicate publicly about efforts related to the recommendation above and about the measures carried out by any contractor operating the Tabakoto mine laboratory to prevent occupational health and safety risks, in particular those related to hazardous materials including lead.
9. Recommendation 3: The NCP recommends that in the future, Endeavour communicate in a more transparent and timely way to employees and employees’ representatives about matters of employment which could induce significant change and impacts on the employees.
10. The NCP asks Endeavour to report in writing to the Canadian NCP by 1 July, 2018 on: 1) its efforts to implement the three NCP recommendations; and 2) how it has addressed and followed up on all the specific commitments Endeavour has taken during the NCP dialogue, as listed in this Final Statement. The NCP would like to issue a follow-up statement approximately twelve (12) months following the publication of this Final Statement, taking into account the Company’s response.
Request for Review
11. The Notifier’s Request for Review alleges that Endeavour has not been observing the OECD Guidelines with respect to issues relating to labour practices and the health and safety of employees. The Request for Review is focused on: 1) an allegation of wrongful dismissal; and, 2) an occupational health and safety issue related to exposure to lead, as outlined below:
1) Labour Issue: The Request for Review alleges that the Company did not rehire 72 employees, of which 11 were unionised, following the Company’s taking over of the mine from a previous employer, Avion Gold Corp in late 2012. Prior to Endeavour’s acquisition of the mine, Avion Gold Corp used the local labour broker, SAER Emploi. Endeavour decided to end the use of SAER Emploi in February 2013, and have SEMICO (the subsidiary operating the mine) directly rehire the 933 employees previously employed through SAER. In this transfer of employment, 72 people were not rehired by SEMICO. The Notifier alleges that all employees were promised rehire as part of the transfer, and since the termination, others have been employed instead for positions of similar qualifications. The Notifier alleged that the Malian Labour Code was breached, that SEMICO was the real employer, not the labour broker, and that Malian law gives a 2 year rehiring priority for former employees. A complicating factor is that the Company and some of the former employees represented by the Notifier are involved in a Malian court case currently in its second appeal, regarding the amount of severance rights due to workers (see in NCP Initial Assessment section).
2) Blood-lead levels: The Request for Review alleges that many employees have blood-lead levels that are higher than 100 microgram of lead per litre of blood, or 10 µg/dL, an alleged threshold for lead poisoning according to the Notifier. The Notifier alleged that employee exposure to lead in the Tabakoto mine laboratory is leading to elevated blood-lead levels (BLL), which are causing adverse health issues for workers.
12. In the Request for Review, the Notifier cited the following two paragraphs of the OECD Guidelines:
Chapter II. General Policies
Paragraph A.1: “[Enterprises should:] Contribute to economic, social and environmental progress with a view to achieving sustainable development.”
Paragraph A.2: “[Enterprises should:] Respect the internationally recognised human rights of those affected by their activities.”
In addition to Chapter II. General Policies, the NCP also found Chapter V. Employment and Industrial Relations to be of relevance to both the labour and health and safety issues of the Request for Review.
13. The Notifier requested the NCP’s assistance in initiating dialogue with the Company to help address the two issues raised.
About the Notifier
14. The Notifier is le collectif des anciens travailleurs de SAER-Endeavour Kenieba-region de Kayes (Mali) represented by Mr. Traoré Yacouba, Secretary General for the labour union Federation Nationale des Mines et de l’Énergie (FENAME), who is located in Bamako, Mali.
About the Company
15. Endeavour Mining Corporation is a Cayman Island company with a registered office in the Cayman Islands. It is listed on the TSX. At the time of receipt of the RfR and until March 2016, Endeavour Mining Corporation maintained a corporate office in Vancouver, Canada. The current corporate office is located in London, UK. Endeavour Mining Corporation’s Malian subsidiary, SEMICO SA holds the mining permit to the Tabakoto mine in Mali. Given that Endeavour Mining Corporation had a corporate office in Canada at the receipt of the request, and that Mali is not an adherent to the OECD Guidelines and as a result does not have an NCP, the Canadian NCP considered that it had a mandate to receive this specific instance. .
16. The following provides the main milestones of the process:
- 19 May 2015: NCP receives the RfR from the Notifier
- 22 May 2015: NCP Secretariat acknowledges receipt of the RfR and requests additional information from the Notifier
- 23 May to 17 August 2015: Notifier submits to the NCP an additional issue for the RfR (on health) and supplementary documentation (on the labour and health issues)
- 22 June 2015: NCP contacts Endeavour company’s CEO
- 6 July 2015: Endeavour provides to the NCP its response to the request for review
- 18 September 2015: Draft Initial Assessment report in both official languages shared with parties to verify facts
- 6 November 2015: Initial Assessment report in both official languages is sent to Parties with offer of facilitated dialogue
- 13 November 2015: Notifier accepts to participate in facilitated dialogue
- 27 November 2015: Company accepts to participate in facilitated dialogue
- 20 May 2016: Parties sign the terms of reference for the facilitated dialogue
- May - August 2016: Employees and ex-employees concerned by the case are identified and delegation of authority to the Notifier is secured.
- 29-30 September 2016: Facilitated dialogue meeting by combined video-conference and phone conference.
- October 2016- March 2017: Continuation of dialogue via phone calls between the NCP and each party separately (with the Company: 3 November, 2016; 12 January, 2017 and 22 March, 2017; with the Notifier 9 November, 2016 and 14 February 2017); intensive exchange of information between parties by email via the NCP; progress updates on some of the actions taken by the Company as agreed during the dialogue.
- March 2017: End of facilitated dialogue
- 5 October 2017: Draft Final Statement shared with parties (in both official languages)
- 10 October 2017: Notifiers sends comments on draft Final Statement
- 20 October 2017: Company sends comments on draft Final Statement
The NCP’s Initial Assessment
17. It is worth recalling that an initial assessment is not a determination on whether or not the corporate behaviour or actions in question were consistent with observance of the OECD Guidelines, although the NCP can make such a determination at its discretion. The initial assessment indicates that the NCP considers that dialogue between parties could be useful to resolve disputes related to the issues.
18. The Canadian NCP reviewed all the information presented in the initial submission of the Request for Review, contacted the company and requested additional information from the Notifier.
19. The Canadian NCP reviewed the supplementary materials presented by the Notifier and information submitted by the Company, and conducted an initial assessment using the criteria listed in the NCP Procedures Guideand the Guidelines’ Procedural Guidance as follows:
- the identity of the party concerned and its interest in the matter;
- whether the issues are material and substantiated;
- whether there seems to be a link between the enterprise’s activities and the issue raised in the specific instance;
- the relevance of applicable law and procedures, including court rulings;
- how similar issues have been, or are being, treated in other domestic or international proceedings;
- whether the consideration of the specific issue would contribute to the purposes and effectiveness of the Guidelines.
20. Through its initial assessment, the NCP found that the two issues raised (health and labour) were material to the OECD Guidelines. It also found that the supporting documentation provided by the Notifier on both issues, while at varying degrees of specificity, allowed the NCP to conclude that the case merited to be pursued and that both issues could benefit from a dialogue between the parties.
21. The fact that there is an ongoing litigation before the Malian courts on the labour question did not preclude the offer of dialogue by the NCP. Moreover, the court case is specific to the question of the calculation of severance pay due to some of the terminated employees, which is not an issue raised by the Notifier in the Request for Review. The NCP believed that a broader process of dialogue could help resolve issues which are not before the courts and would advance the implementation of the OECD Guidelines.
22. Pursuant to section 3.5 of the NCP Procedures Guide, the NCP therefore offered to help the parties involved through a dialogue facilitation process, whereby parties could work towards resolution of the issues raised in the Request for Review. The NCP appreciates that the Company accepted the offer of dialogue and showed a spirit of open and frank discussion.
23. The NCP is grateful that both parties worked constructively in a spirit of transparency and provided consent so that all documentation they provided could be shared with the other party, both during the initial assessment and the facilitated dialogue.
The Facilitated Dialogue
24. Modalities for the dialogue were discussed with the parties in advance, and had to address the challenge of accommodating participating parties in 4 different countries (Canada, Monaco, Ivory Coast and Mali) in addition to participants from the NCP in Ottawa, Canada, as well as language issues (French and English).
25. The NCP drafted terms of reference for the dialogue process in consultation with both parties. Terms of reference included provisions regarding NCP expectations and rules on confidentiality and good faith behaviour on the part of parties, and were signed in May 2016. Prior to the start of the dialogue itself, significant time was devoted to confirm the identity and delegation of authority of the 33 ex-workers represented by the Notifier on the labour issue and the 12 individuals on the health issue. Written consent also had to be obtained from the 12 individuals, a requirement under Canadian law, so that the NCP could share confidential medical information received from the Notifier with the Company.
26. A combined video-phone conference took place on 29 and 30 September, 2016. The Notifier, accompanied by one of the ex-employees, participated via video-link from the Canadian embassy in Bamako with the NCP who was in Ottawa, Canada. Three representatives from the Company (two Senior VPs and a legal counsel) were linked by phone from Monaco, Abidjan and Nova Scotia (Canada) respectively. Consecutive interpretation French-English was provided which significantly added to the length of the video conference. The dialogue was facilitated by the NCP itself. A healthy exchange of views took place between parties, followed by the exchange of further documents and written comments by the parties, which had to be translated between French and English. While good progress was achieved at the video conference, given the logistical challenges, the NCP then conducted several bilateral phone calls with each party individually over the period October 2016 to February 2017. The parties expressed their appreciation to the NCP for the dialogue and to the Canadian embassy in Bamako for hosting the Notifier during the video-conference
27. The NCP finds it useful to summarize here the respective positions of the parties and the remedy sought by the Notifier amounting to a total of approximately 1 500 000 Canadian dollars once converted from the legal currency in Mali (CFA). The Notifier asked for the reinstatement of 33 workers with retroactive pay and benefits for them as compensation for the 36 month layoff period. On the health issues, the Notifier asked for financial compensation for the alleged detrimental health effects of lead poisoning for the 12 employees, a reimbursement of medical costs and payment of arrears for health insurance contributions. The Notifier provided BLL results from circa 2012 for the 12 employees in question. The Notifier also noted that ALS started in the laboratory only in 2013 and stated that Endeavour transferred its responsibilities regarding health and safety onto ALS.
28. Regarding the labour issue, the Company stated the following:
- SAER-Emploi, not SEMICO, was the employer of the 933 persons working at the mine during the contract between SEMICO and SAER. Consequently, only SAER-Emploi could reinstate the former employees who did not get hired by SEMICO;
- The termination procedure by SAER-Emploi was authorized by the Ministry of Labour on 28 January 2013;
- SEMICO had committed to rehire all workers but some employees protested their transfer on 21 February, 2013 and wanted to be paid their severance by SAER, which was done for all employees;
- SEMICO decided to rehire the employees it needed to fulfil its operational needs from the group of former employees.
29. Regarding the health issue, the Company’s position was that the Notifier provided no evidence to substantiate its monetary claim associated with elevated BLL and detrimental impacts on the health of the 12 current and former workers. The Company also alleged that no authentication of BLL test results was provided by the Notifier. The Company however took the Notifier’s allegations seriously and reported that employees are subject to routine BLL monitoring as per company protocols, with appropriate action if required. They also indicated that this process had triggered an assessment of lead handling, lead management and maintenance practices at the laboratory, as well as additional staff training and that they recommended an improvement with respect to the application of the ALS standards, and of training and maintenance practices.
30. The Company did not agree to the compensation and reinstatement sought by the Notifier. That being said, the following commitments and actions were taken by the Company during the facilitated dialogue:
- 1. Health issue
- 1.1 Blood lead levels (BLL):
- 1.1.1 The Company committed to have the 12 individuals identified and represented by the Notifier on this issue tested for blood lead levels; the company undertook to contact those among them who are no longer employed at the mine in order to have them tested.
- 1.1.2 The 12 persons were tested in October and November 2016, with transportation, room and board provided to one individual no longer employed at the mine and living some 800 km away from the testing location. BLL results were communicated to the individuals. Endeavour assured the Notifier and the NCP that among those 12 individuals tested, those individuals still employed at the mine would continue to be periodically tested and appropriate action taken if required, as per the Company’s procedures and standards with respect to employees’ exposure to lead.
- 1.1.3 The Notifier sought assurances that Endeavour would not discriminate or take any retaliatory actions against individuals represented by the Notifier based on their medical records or the fact that they made a complaint to the NCP. Endeavour assured the NCP that its business ethics and practices precluded it from behaving in a discriminatory manner.
- 1.1 Health and safety procedures:
- 1.1.1 Endeavour committed to, and did share with the NCP and the Notifier, the lead control procedures and lead protection training material of its contractor ALS who is in charge of the mine laboratory where lead is being handled. Some of this material was updated in July 2015 and again in November 2016.
- 1.1.2 Training on the hazards associated with exposure to lead was provided to the mine laboratory employees in September 2016, with the full engagement of ALS.
- 1.1.3 Endeavour commits to raise the level of performance with respect to occupational health and safety in all parts of its operations, which include in Mali and elsewhere in Africa; Endeavour commits to uphold internationally recognized occupational health and safety standards, including standards expected from service providers and subcontractors such as the operator of the laboratory at Tabakoto, and with a particular focus on hazardous substances including lead.
- 1.1 Blood lead levels (BLL):
- 2. Labour issue
- 2.1 Endeavour acknowledges that the Company’s communications around the cancellation of the contract with SAER Emploi, and the formal change of employer in early 2013, could have been managed in a manner more consistent with the principles outlined in the OECD Guidelines. However, Endeavour stated that at the time of the contract cancellation, it had complied with the applicable local legal requirements. The NCP acknowledges the difference in parties’ positions on the question of an alleged breach of the Malian Labour Code and notes that the NCP is not in a position to make a determination on this legal issue.
- 2.2 Endeavour has committed to receive applications from individuals identified by the Notifier in this NCP dialogue, should those identified individuals signal an interest in opportunities for employment at the Tabakoto mine. Endeavour will keep their applications on file for the period of 12 months to be considered if SEMICO opens positions for workers with qualifications comparable to those seeking employment.
- 3. Corporate Social Responsibility:
- 3.1 Endeavour commits to endorse, implement and disseminate the OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector, which includes a section dedicated to engagement with workers and trade unions.
- 3.2 Endeavour commits to officially and publicly endorse the OECD Guidelines for Multinational Enterprises as part of its corporate CSR policy framework, and to disseminate and implement the Guidelines throughout its various operations, including by promoting their uptake by its service providers and subcontractors such as labour brokers and laboratory operators.
31. The NCP would like to thank Endeavour and the Notifier for their constructive and open cooperation with the NCP during the process. Endeavour consistently showed good will and good faith throughout the initial assessment and the dialogue process. While delays occurred at times, due to other business requirements, the Company’s responses and written contributions were generally timely, transparent and pertinent to the NCP’s requests. The NCP believes it has been in the Company’s interest to recognize this NCP process as a timely opportunity to take stock of the status of compliance with health and safety standards and procedures in the Tabakoto mine laboratory with regard to the handling of, and exposure to lead. The NCP recognizes the Company’s diligence in conducting the BLL retesting of the employees before the end of the dialogue and in communicating and updating the health and safety procedures. The NCP regrets that the Company and the Notifier could not agree on a mutually satisfactory outcome or remedy. That being said, the NCP welcomes the actions and commitments taken by Endeavour, in particular related to the health issue, as a positive step forward. The NCP appreciates that Endeavour agreed to disclose the list of actions and commitments in the Final Statement.
32. The Notifier showed a satisfactory and open spirit of cooperation for most of the dialogue, contributing documentation to the process, responding to NCP requests in a timely fashion and making efforts to articulate his position to the Company. The NCP was however made aware, in January 2017, of a legal complaint filed with the local police at Tabakoto made against the Company by the Notifier on behalf of 49 workers or ex-workers of the mine, including some of those represented in the NCP case. The complaint included allegations regarding contamination of employees by hazardous material including lead. The Notifier did not deny this new development during the February 2017 call with the NCP. It is not known whether the complaint has been heard by the local Procureur. The Company expressed its disappointment to the NCP about this development and stated that this was an act of bad faith and manipulation of the process on the part of the Notifier, given the NCP dialogue was still ongoing.
33. The NCP informed the Notifier that while this did not constitute a breach of confidentiality, the complaint to the police harmed the ability of the NCP to build confidence in both parties and to make further progress, and was in contradiction of the commitment to dialogue in good faith. The NCP ended the dialogue in March 2017, assessing that, while much had been achieved through parties’ efforts, no further progress was likely.
34. Regarding the job dismissal issue, the NCP is of the view that communication and transparency have not been optimal in the lead up to, and during, the cancellation of the SEMICO contract with SAER Emploi and the transfer of employees to SEMICO. Endeavour recognized this during the dialogue. While recognizing that there is a legal framework in place, the NCP believes that circumstances around the termination of the original contract, and the rehiring by SEMICO, lacked clarity, which may have confused the workers, in particular given that the process involved the dismissal by SAER and the payment of severance rights before rehiring by SEMICO. Moreover, the NCP is of the opinion that the onus of clarifying the employee-employer relationship is on the employer, and not on employees or contractors.
35. The NCP wishes to point to a number of provisions of the Guidelines that are relevant in this case:
Chapter V - Employment and Industrial Relations, paragraph 6 (page 36) states that, in considering changes in their operations which would have major employment effects, in particular in the case of the closure of an entity involving collective lay-offs or dismissals, companies should provide reasonable notice of such changes to representatives of the workers and cooperate with the workers representatives and appropriate governmental authorities so as to mitigate any adverse effects to the maximum extent practicable. The Guidelines further suggest that means may be employed to provide meaningful cooperation between employer and employees to mitigate the potential negative effects of significant employment changes.
Chapter II – General Policies, paragraph 14 (page 20) states that companies should engage with relevant stakeholders (including employees) to provide them with meaningful opportunities for their views to be taken into account in relation to planning and decision making. The NCP welcomes the Company’s commitment to implement and disseminate the OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector. The guide, which includes targeted guidance for workers, offers practical tools for companies to help them implement the provisions of the OECD Guidelines on due diligence for effective stakeholder engagement as per paragraph 14 of Chapter II cited above.
Chapter II – General Policies, paragraph 12 (page 20) places a duty of due diligence on companies to seek to prevent or mitigate any adverse impacts that may be directly linked to their operations, products or services by a business relationship such as sub-contractors or labour brokers. This would apply to Endeavour vis-à-vis ALS as the contractor operating the mine laboratory and vis à vis any labour broker like SAER Emploi under the previous arrangements. Due diligence is not limited to an initial investigation of a business relationship but should also be applied proactively though establishing systematic measures to identify CSR risks and prevent or mitigate potential adverse impacts, as well as through ongoing monitoring of business relationships and related operations. An example of due diligence measures with sub-contractors is using the company’s leverage to build CSR expectations into contracts or support training and capacity building. The Company may find useful the ongoing work by the OECD to develop a practical tool to help enterprises implement the due diligence requirements of the Guidelines.
Chapter II – General Policies, paragraph 13 (page 20) further states that companies should also encourage, where practicable, business partners, including suppliers and sub-contractors, to apply principles of responsible business conduct compatible with the Guidelines.
36. Health Canada’s website states that there is sufficient evidence that BLLs below 5 μg/dL (or 50 μg/L) are associated with adverse health effects. While there are many possible sources of lead exposure including non-occupational sources, companies have the responsibility to ensure a safe and healthy work environment and reduce employees’ exposure to hazardous substances such as lead. The NCP notes that Endeavour-SEMICO has imposed standards for BLL testing and BLL thresholds at the mine laboratory that are already stricter than the ALS internal group-wide BLL standards and has taken steps to conduct a risk assessment which triggered retraining and improvements to workplace standards at Tabakoto. The NCP expects the Company to firmly uphold recognized international operational health and safety (OHS) standards in its operations, including those related to lead handling and management and other hazardous substances. The NCP notes with appreciation the Company’s commitment to do so as part of the dialogue outcomes.
37. During the parties’ consultations on the draft Final Statement, the NCP took note of the proposal made by the Notifier whereby SEMICO would fund community projects that would employ workers who were terminated and not rehired. The NCP transmitted the Notifier’s comments and proposal to the Company and indicated to him that, because the facilitated dialogue process was closed, a new proposal could not be entertained under the NCP process at this stage. The NCP however invites the Notifier to engage a dialogue with the Company on this proposal, if he so wishes.
38. In concluding, the NCP considers that the process of facilitated dialogue has played a constructive role in assisting the parties to address issues important to employees. Despite the absence of a mutually agreed resolution, the NCP is encouraged by the actions and commitments taken by Endeavour as a result of this specific case. The Notifier thanked the NCP for facilitating the dialogue. The NCP trusts that parties will have found the dialogue useful and encourages them to continue to communicate with each other on the important matters addressed through this NCP process.
Annex: OECD Guidelines and the NCP Process
The OECD Guidelines for Multinational Enterprises are recommendations addressed by governments to multinational enterprises operating in or from adhering countries. They provide non-binding principles and standards for responsible business conduct (human rights, labour, environment, disclosure, corruption…) in a global context consistent with applicable laws and internationally recognized standards.
National Contact Points (NCPs) are a voluntary, non-judicial dialogue facilitation mechanism. Established through countries’ adherence to the OECD Investment Declaration, they are mandated to: (a) promote the adoption of the OECD Guidelines for Multinational Enterprises on responsible business conduct by companies, as guiding principles in their day-to-day operations, and (b) facilitate dialogue between companies and affected parties, when specific issues related to a company’s operations fall within the scope of the Guidelines. The process to be followed by the Canadian NCP in dealing with issues that arise relating to the implementation of the Guidelines in specific cases is prescribed in the Procedural Guidance to the OECD Guidelines (section C, page 72 of the 2011 edition) and further explained in the Canadian NCP Procedures Guide.
Following the receipt of a request for review, the NCP conducts an initial assessment to review the issues raised. In doing so and in determining whether to offer its good offices to the parties in the form or mediation or facilitated dialogue, the NCP takes into account a number of factors, as outlined in paragraph 25, page 83 of the 2011 edition of the Guidelines.
If the NCP establishes that a facilitated dialogue could potentially address the issues raised, the NCP can offer to the company and those making the claim to participate in a facilitated dialogue or a mediation on a voluntary and good faith basis. The objective of a dialogue is for parties to establish a better understanding of the issues and identify a path forward and/or solutions to the concerns identified in the submission to the NCP. The Canadian NCP is not required by the OECD to render a finding of “breach” to the Guidelines, but it can do so, at its sole and entire discretion. It is not the role of the Canadian NCP to provide the remedy. The NCP offers a neutral forum for a facilitated dialogue or mediation, for parties to find solutions together, when there is reason to believe that such dialogue can help parties find mutually agreeable solutions, while advancing the implementation of the OECD Guidelines by companies.
Whether the NCP offers its good offices to the parties or not, and whether there is any agreement or not between the parties, the Procedures require the NCP to make the results of its proceedings publicly available by publishing a final statement on its web site.
- Date Modified: