Decision

Review of final statement: IUF and FLOC complaint to UK NCP about BAT

Updated 6 May 2022

This statement was published on 2 December 2019 by UK National Contact Point (UK NCP) for the OECD Guidelines for Multinational Enterprises.

This is a review by the UK NCP Steering Board of the handling of the complaint raised by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers (IUF) and the Farm Labor Organizing Committee of the United States (FLOC) against British American Tobacco (BAT).

Following a request for a procedural review of the handling of this case from the IUF and FLOC in April 2019, a review committee was established from among the members of the UK NCP Steering Board.^{[footnote 1]}

The 3-member committee was asked to consider 4 grounds for complaint. These contended that the UK NCP failed to follow proper procedure in its consideration of IUF and FLOC’s specific instance against BAT plc.

In considering these grounds for complaint, the committee has reviewed all the available correspondence, call logs, email exchanges and further information from the UK NCP in response to the request for review. These dated back to the original complaint in August 2016, and included the final statement by the UK NCP of 3 April 2019.

After its first meeting, the committee requested and received 2 further documents:

• the comments received by the UK NCP from the IUF and FLOC on 16 and 17 May 2018
• the UK NCP’s letter of response to the IUF and FLOC’s letter of April 16 2019

Findings

The first ground for complaint was that the IUF and FLOC had not been given an appropriate opportunity to respond to comments provided by BAT on the draft of the final statement (of 17 April 2018).

1. The committee notes that the UK NCP produced the first draft of its final statement and sent it to the parties on 17 April 2018. The committee has seen the detailed comments and suggested amendments to the statement, submitted to the UK NCP by the IUF and FLOC on 16 and 17 May 2018.

The UK NCP states that it shared the comments received on the draft final statement from both parties with the parties to the case on 5 June 2018, in line with the review procedures. This provided the opportunity for mutual scrutiny of these comments by the parties.

2. A conference call held between the IUF and the UK NCP on 19 June 2018 gave further opportunity for the IUF to comment on BAT’s comments. Recognising personnel handover challenges and the fact that earlier material from BAT for the Initial Assessment had not been considered, and apologising for both of these issues on that call, the UK NCP then suggested a meeting between all parties, subject to agreement.

It was noted during the discussion, however, that the earlier information supplied by BAT did not necessarily address the substance of the complaint.

3. With reference to the letter from the IUF to the UK NCP of 7 May 2019, which elaborated on the request for a procedural review, the committee wondered why the IUF and FLOC were not more proactive in submitting comments either on the final statement or on BAT’s comments on the final statement.

There had been ample opportunity to communicate with the UK NCP by email and on the phone, in May and June 2018 and subsequently. This is irrespective of whether the UK NCP explicitly solicited comments or not. The committee therefore does not uphold this ground for complaint.

The second ground for complaint was that the UK NCP neglected to follow up with the parties on its proposal for a call and thereby neglected to give the IUF and FLOC a fair hearing.

4. The committee recognises that the UK NCP persistently tried to arrange a call between the parties, having held bilateral calls with each of them. The UK NCP can be shown to have been trying to move the process forward in parallel to organising the call. Additionally, the IUF and FLOC volunteered, in discussions on a Terms of Reference for the proposed call, that holding the call should not delay the production of the next draft of the final statement.

The committee notes the procedure for the production of that draft. This is that the UK NCP does not need to notify parties before issuing a revised final statement and that the inclusion of factual amendments and comments is at the UK NCP’s discretion.

5. Even though it was anticipated that the parties could, and would, likely comment further on this second draft of the final statement of 22 January 2019, the committee considers that in the circumstances of the call being organised in parallel, it would have been sensible for the parties to be given notice of the timing of this next draft.

However, the committee does not uphold this ground for complaint because the fact that the call didn’t take place would not have had a critical bearing on the IUF and FLOC having a fair hearing from the UK NCP and because there remained multiple opportunities for them to make representations to the UK NCP throughout this period.

The third ground for complaint was that the UK NCP did not provide the opportunity for the IUF and FLOC to have their submission and their input treated appropriately.

6. The committee considers that this third ground for complaint is very similar to the second. The committee notes that the IUF and FLOC made a detailed submission on this draft of the final statement in its letter of 1 February 2019.

In respect of this submission, as for the emails of May 2018 and calls in June of that year, the committee has seen no evidence that the UK NCP did not take this input into account or fail to treat it appropriately, and so does not uphold this ground for complaint. Whether the IUF and FLOC were satisfied with the outcome of the final statement given their submissions and input is a separate issue.

The fourth ground for complaint is that the UK NCP failed to address IUF and FLOC’s concerns regarding human rights due diligence and freedom of association, as set out in the OECD Guidelines for Multinational Enterprises.

7. The committee has looked carefully at the final statement of April 2019 in considering this aspect of the request for a procedural review. The committee notes that concerns raised by the IUF and FLOC are indeed acknowledged and addressed in the final statement, in particular in paragraphs 51 to 57. The committee accepts this as evidence that the UK NCP considered arguments on both sides in reaching its conclusions, and so it does not uphold this ground for complaint.

8. However, it was put to the committee by the UK NCP that aspects of this ground for complaint are outside the committee’s remit in that they relate to a substantive, rather than procedural, issue.

The committee disagrees with this interpretation of its remit. It believes that ‘procedural’ issues in this case extend to the reasonableness of the UK NCP’s consideration of a case; for example, whether or not it applied its mind to due diligence considerations.

The committee is not asked to consider whether it agrees with the UK NCP’s conclusions, but it is entitled to consider whether the UK NCP considered all relevant facts as a matter of procedure.

Whilst reviewing the final statement and the section already referred to above, the committee did consider that the overall presentation of the complaint and of the rebuttals provided by BAT ought to have been more balanced and gone into more thoroughly or discursively so as to demonstrate better that the UK NCP’s consideration of the original complaint was indeed balanced.

Conclusion

In summary, the committee does not uphold the grounds for complaint made about UK NCP procedure in this case. It asks the UK NCP to note the points made in paragraph 8 of this report as a recommendation for future final statements.

September 2019

1. To note: one member of the Steering Board was not involved in any part of the review as they declared an interest in the complaint in line with 5.2 and 5.3 of the UK NCP review procedures. ↩