Consultation Document Labour requirements for fisheries and supply chains

Transcription

1 MSC - Marine Stewardship Council Consultation Document Labour requirements for fisheries and supply chains Consultation Dates 15 March to 14 May 2017 MSC Contact Oluyemisi Oloruntuyi FOR CONSULTATION 1. Executive Summary The MSC Board of Trustees have committed to developments to the MSC Program to provide further assurance that it is free of serious labour abuses. The MSC have consulted stakeholder groups to understand their concerns and investigated existing tools and social standards that operate in this sector. This has resulted in the development of an initial policy proposal that is presented for consultation here. The range of issues under consideration can be categorised into the following: Scope of MSC definition Format of self-declaration tool Who gets assessed Process of auditing for compliance Recognition of third party labour standards Risk based approach The self-declaration proposed will include a statement declaring that the client/applicant fishery or supply chain is free from forced and child labour in their operations. Fishery and supply chain clients would be required to provide information within a self-declaration form on policies, measures and practices in place to ensure the absence of forced and child labour. Under certain conditions some clients may only be required to sign the statement and may be exempt from the requirement to provide additional information on policies and measures in place. Key Points - MSC seeks to introduce a labour self-declaration policy for the MSC Fishery and Chain of Custody (CoC) program - The scope of the self-declaration is limited to forced and child labour - The proposed process would require fishery and supply chain clients and applicants to provide a declaration that their operations are free from forced and child labour and to provide information on policies, measures and practices in place to ensure absence of forced and child labour 2. Purpose of the consultation This consultation seeks to update stakeholders on the work being done to require fisheries and supply chain clients to provide a declaration that they are free from forced and child labour. It aims to collect feedback on the following considerations: Scope of MSC definition Format of the Self-Declaration tool Process of auditing for compliance, including auditing requirements, complaints and the MSC Labour Panel Recognition of other labour standards Consultation Document Labour requirements for fisheries and supply chains 1

2 3. Background In July 2016, the MSC announced its intent to seek stakeholder input on an initiative to introduce labour requirements into the MSC program. The MSC proposed an initial phase that would involve the development of requirements for a self-declaration for certified fisheries and development of a selfdeclaration or auditable requirements for supply chain. The announcement was followed by the release of a set of Terms of Reference for the project, inclusive of a schedule of stakeholder engagement. Since then the MSC has been involved in a round of consultation with a wide range of stakeholder groups globally, including NGO s, retailers, fishing industry, government organisations, MSC fishery and supply chain clients and MSC governance bodies. 4. Considerations Since the announcement in July 2016, the MSC has consulted with a range of stakeholders in Asia, Europe and North America. The feedback from these conversations is presented below and is grouped into general feedback and the six areas of consideration mentioned in 1. Executive Summary. 4.1 General feedback There was support from most stakeholders for MSC s initiative on labour requirements. There was concern from some stakeholders about the complexity of the issues involved and potential difficulty of integrating labour requirements within MSC s programme. Specific issues raised were the skill set that would be required by auditors; the potential for increasing the reputational risk to the MSC if fully auditable requirements were introduced; and the potential implication for overall cost of certification 4.2 Scope of MSC definition There was a general recognition amongst stakeholders of the complexity of the issues that could be potentially included within an MSC definition of labour requirements and of the limited availability of tools with universal applicability to address labour issues. Most stakeholders felt that given this situation, the scope of what is considered within MSC s requirement on labour practices should at this stage be limited to an initial sub-set of issues and in particular it should focus on forced labour and child labour. A number of suggestions of an indicator sub-set for the two issues were proposed. These include general information on the client, voluntary nature of work, freedom to leave employment, absence of debt bondage, absence of child labour and legal compliance. 4.3 Format of the self-declaration tool - There was general support for the proposal of a template that certified or applicant clients would be required to fill out with information about the measures, policies, practices and systems in place to ensure the absence of forced and child labour in their operations. 4.4 Who gets assessed There was a recognition that providing a self-declaration at the single vessel/company level would provide the greatest assurance. It was however also observed by stakeholders that this level of granularity would have significant cost implications and would be counter to other work being undertaken by the MSC to simplify and reduce the cost of the assessment process. 4.5 Auditing for compliance Stakeholders raised a number of key issues in relation to the process for demonstrating compliance with respect to a self-declaration. These included concern over skill set required to investigate labour issues in fisheries, concern over CAB liability and the need for a process for the MSC to be able to take action if a self-declaration is challenged or the information provided in a self-declaration is found not to be factual. 4.6 Recognition of other labour standards Most stakeholders were keen for the MSC to utilise existing standards instead of creating a new standard for labour requirements. There was however a recognition of the limitations of existing standard especially with respect to global applicability in fisheries and a recognition of the variation in performance and process requirements across these standards. 4.7 Risk Based approach Most stakeholders recognised the need for a risk based approach, given higher association of forced labour with certain key features of fishing or supply chain operations. Consultation Document Labour requirements for fisheries and supply chains 2

3 Some risk factors suggested by stakeholders include flag state, compliance with national law, migrant employment, value of species fished and individual company commitment to measures aimed at addressing labour issues. In response to this feedback, the MSC has refined its proposal in the following way (see Appendix A): 1. Requirements for fishery and supply chain clients will be limited to self-declarations. 2. MSC certification requirements will require completion of the self-declaration in order for clients/applicant to be in scope or be eligible for MSC certification. 3. Auditing will be limited to establishing that a self-declaration, and its underlying documentation, exist. 4. Any complaints arising that contradict the declaration that there is no Forced or Child labour in the entities that comprise the client group will be referred to an independent panel. 5. In the event that the Panel cannot be satisfied that Labour violations are not taking place, it may require a full Labour/Social audit against a non-msc standard. 6. We are consulting here on the overall structure of this proposal, and on the content of the self-declaration. 5. Next Steps All consultation feedback will be anonymised and published in a report on the MSC Program Improvements website after the consultation closes. This will also be ed to all respondents. Date Activity March-April, 2017 Public consultation June/July, 2017 Technical Advisory Board (TAB) working group meeting Board update September, 2017 Second round of public consultation on detailed Scope & process requirement. Including directed engagement with all certified clients March, 2018 Final public consultation July, 2018 Release 6. Who can comment? How do I give feedback? This consultation is public and open to all interested parties. The online feedback survey allows you to respond to specific questions on this topic. We also welcome any more detailed comments that you wish to make on this consultation which can be ed directly to: standards@msc.org. Consultation Document Labour requirements for fisheries and supply chains 3

4 Appendix A: Proposed MSC Forced and Child Labour self-declaration process 1.0 Introduction The Marine Stewardship Council operates an international, third party ecolabelling and certification program for environmentally sustainable fishing. There is growing recognition and concern at the presence of labour abuses within the global seafood fishing industry and supply chain. The MSC condemns the use of forced labour, and in 2014 the MSC introduced a forced labour policy requiring fisheries and supply chain entities to demonstrate that they have not been successfully prosecuted for forced labour, to remain eligible for certification. The MSC wishes to further mitigate any potential risk of association of forced labour within its certified seafood supply chains and is introducing a policy which will require certified and in assessment fisheries and supply chain clients to provide a self-declaration (Annex 1), on measures, systems, policies and practices in place to prevent forced and child labour abuse in their operations. 2.0 Purpose and general principles The MSC Forced and Child Labour Self-Declaration policy is being introduced to eliminate the risk of any product bearing the MSC label, from being associated with forced or child labour. It is aimed at providing visibility of the measures, systems, policies and practices that are in place in MSC certified fisheries and supply chains to ensure the absence of forced and child labour. The Self-Declaration protocol is not intended to cover all the elements of a social audit, nor provide the same level of assurance as an accredited social standard. Nor is it a part of the MSC standards against which fisheries or supply chains are evaluated for their performance. It is intended to be a mechanism for MSC to disassociate itself from any entity engaging in forced or child labour. 3.0 Scope This process applies to both fisheries and supply chains. It specifically applies to child labour as defined within national jurisdictions and forced labour as defined by the International Labour Organisation (ILO) Conventions. The ILO conventions define forced labour as all work which is exacted from any person under the menace of penalty and for which the said person has not offered himself voluntarily 1. Child labour is broadly defined by the ILO as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development 2. Variations of the definition of child labour, including minimum age requirements for work apply across different jurisdictions. The self-declaration policy will be a scope requirement. It will build on the existing clause in the Fisheries Certification Requirements (FCR) and Chain of Custody Certification Requirements (CoC CR) that precludes entities from certification if they have been prosecuted for forced labour violations in the past two years. It would require client/applicant fisheries and supply chains to provide a self-declaration in order to be eligible for MSC certification. The following clauses are proposed for inclusion in MSC s Fisheries and Chain of Custody Certification Requirement: i. Fisheries Certified and applicant fisheries are required to provide a self-declaration, attesting the absence of forced and child labour from their operations, and as appropriate provide evidence of measures, policies and practices in place to ensure the absence of forced and child labour from their operations in order to remain eligible for certification. ii. Chain of custody Certified and applicant supply chains are required to provide a self-declaration, attesting the absence of forced and child labour from their operations and as appropriate provide evidence of 1 ILO Convention 29, Article 2(1), ILO (2002) eliminating the worst forms of child labour: A practical guide to ILO Convention No 182 Consultation Document Labour requirements for fisheries and supply chains 4

5 measures, policies and practices in place to ensure the absence of forced and child labour from their operations in order to remain eligible for certification. 4.0 Format of Self-declaration form A copy of the self-declaration that is proposed is provided in Annex 1. Fishery and supply chain clients would be required to sign the declaration and as appropriate fill in the form and provide information on systems, policies, measures and practices in place to ensure the absence of forced and child labour. It is proposed that where the flag or port state, or the national jurisdiction within which the entities that comprise the client group operates, is within a Tier 2 watch list or Tier 3 country in the most current Trafficking in Persons (TIP) Report additional specific evidence in relation to recruitment policies and practices in place to ensure the absence of forced and child labour would be required. Consultation question (See Annex 1) 1. Are there additional proxies for forced and child labour that should be included within the selfdeclaration form. - For fisheries - For supply chain 2. Should fishery or supply chains associated with a Tier 2 watch list or Tier 3 country in the most current Trafficking in Persons (TIP) Report 3 be required to provide additional information? Are there other conditions under which entities should be required to provide additional evidence? 4.1. Exemptions to self-declaration There is a recognition that in certain situations some fisheries and supply chains due to the nature of their operations may be structurally immune to the presence of forced or child labour. These may include fisheries comprised of day boats, single handed vessels, self-employed supply chain entities or very small companies that are not on a TIP Tier 2 watch list or Tier 3 country. In such situations, it may be practical to exempt these operations from the need to provide information on policies, measures and practices in place to ensure the absence of forced labour and to require such clients to only sign a statement attesting to the absence of forced and child labour in their operations. Other situations in which a fishery or supply chain may also potentially be exempt from providing additional information in the form may include where the entire UoC or company is certified to a recognised 3 rd party social standard. Consultation question 3. Should the self-declaration allow certain fishery or supply chain types that may be considered structurally immune to forced or child labour to only sign the self-declaration statement and be exempt from the requirement to provide information on policies and measures in place? 4. If yes, under what conditions, and what criteria should be used to determine fisheries or supply chains that should be exempt? 5.0 Process: Auditing requirements Clients that are newly commencing the assessment process would send an electronic copy, where possible, of the completed self-declaration form to the CAB prior to the site visit. For fisheries, the selfdeclaration form will be submitted to MSC as part of the notification report and will be published on the 3 Consultation Document Labour requirements for fisheries and supply chains 5

6 MSC website. For CoC certificate holders, the form will be submitted with the annual audit report. Options are being investigated to make the completed form publicly available on the MSC website, for example, via the Find a Supplier database. The auditing requirements are proposed as: The auditor checks that the client fishery/supply chain has correctly completed the required fields in the self-declaration (Annex 1). The auditor checks that all answers in the declaration are in the affirmative and its underlying documentation, exist. The auditor confirms the client is in scope and may proceed with Announcement (Fisheries) or Assessment (CoC) Consultation question 5. Should there be a requirement that CABs check that underlying documentation exists? There are no further actions expected of CABs unless a complaint is received (see section 6.0 complaints ). In the case that a complaint is received CABs will request additional evidence from the client and/or escalate the issue to the MSC Labour Panel but are not required to investigate or audit the client/applicant against the issue. Refusal to provide a completely filled out self-declaration form will render the client/applicant ineligible for certification or to continue with the assessment. It should be noted that many fisheries clients are complex in structure, for instance comprising a single certificate owner and many subsidiary companies each having a number of vessels. We propose that the declaration itself indicates how the client ensures that there is no forced and child labour across its entire certificate. How the client chooses to do this will be their decision. 6.0 Process: Complaints We accept that disputes may arise about the performance of an entity in a client group. We also understand that because CABs will not be undertaking a full social audit (just an audit of whether the self-declaration has been made) there needs to be some mechanism for dealing with disputes that does not involve CABs. MSC proposes the creation of an MSC Labour Panel to deal with such issues. The MSC labour complaints process will be triggered in the following circumstances: A. A complaint from a stakeholder regarding the veracity of information provided in the selfdeclaration form; B. An allegation of association, of an entity within a client group with forced or child labour Complaints may be raised during or after certification. All complaints will be directed to the CAB. The CAB will be responsible for following up with the client/applicant to request a response and provide evidence against the claim. The CAB would be required to follow up with the client within 3 days of receiving a complaint. The client would then be required to respond to the complaint within one week of the notification from the CAB. Exceptions may be granted for logistical considerations that would require additional time (e.g. small vessels out at sea). The response (which will be required to follow a standard template) will not be interrogated by the certifier but will be collected and forwarded to the MSC Labour Panel (see section 7.0) for review. The MSC Labour Panel will review the complaint and client/applicant response, including any proposal from the client to address the complaint within a specified time frame and will determine if the complaint should be upheld or not. In the event that the MSC Labour Panel determines that the complaint should be upheld, the entity will be required to undergo a third-party audit against a recognised third party standard within a specified time frame in order to continue to be eligible for MSC certification (see section 8.0). In determining whether to uphold a complaint the MSC Labour Panel would consider the following: Consultation Document Labour requirements for fisheries and supply chains 6

7 Absence of documented measures or policies to demonstrate how issues are being addressed Clear and irrefutable evidence of forced labour. E.g. credible media report, video evidence, credible independent research Confirmation by either client/applicant or workers Proposals to address the issue in a specified and acceptable time limit not exceeding 6 months from the date the response is submitted by the client/applicant entity to the CAB. The MSC may explore the use of risk assessment tools to support the complaints process. If the MSC Labour Panel determines that a complaint should not be upheld there will be no further requirements against the client/applicant entity. Consultation question 6. Are there additional factors that should be considered in the design of the complaints process? 7. What additional criteria should be considered in determining whether a complaint should be upheld or not? 8. Should the MSC employ the use of risk assessment tools to support the complaints process? 7.0. Process: MSC Labour panel MSC proposes that a MSC Labour Panel is set up to determine the substance of complaints or any challenge to the veracity of information provided by a client/applicant in a self-declaration form. The MSC Labour Panel is proposed to comprise of retained Social Accountability International accredited auditors, members of MSC s Stakeholder Council and two members from the MSC s Board of Trustees. Another option is that the Labour Panel membership is comprised solely of external accredited auditors with no inclusion of membership from MSC s governance bodies. The MSC Executive will serve as secretariat to the MSC Labour Panel and shall not have any direct input into the decision-making process but will be tasked with duties of facilitation and recording of any decisions made. The MSC Labour Panel will review information provided by the CAB, including additional, external information that may be available to support claims by the client/applicant and the complainant. The MSC Labour Panel will take a decision based on the information available to it, and decide whether to, either uphold the complaint and require that the entity against which the complaint has been made, subjects itself to a third-party audit against a social or labour standard, within a specified period, in order to maintain or be allowed to be assessed for MSC certification, or to dismiss the complaint. The use of 3 rd party standards is not intended to be the ultimate goal of the labour policy but rather to outsource the review and evaluation of a labour issue to a standard with the required expertise. If the entity fails to meet the requirements of the third-party standard, it shall be removed from the MSC certificate or the assessment process will not be allowed to continue. Where a complaint is dismissed by the MSC Labour Panel there will be no further requirements on the entity. Consultation question 9. Is the proposed structure and role of the Labour Panel the right approach for MSC? 10. Are there additional factors that should be considered in how the MSC Labour Panel operates? 11. What should MSC do in the absence of a suitable third party standard, e.g. for some types of distant water fishing which are not currently covered by FTUSA or RFS? 8.0. Recognition of third party labour standards The MSC will provide an up to date list of recognised third party standards that fishery or supply chain entities may be audited against in the event that the MSC Labour Panel determines that a complaint is substantive and the client/applicant entity should be required to undertake a third-party audit. The following standards are currently proposed: Consultation Document Labour requirements for fisheries and supply chains 7

8 Fisheries o Responsible Fishing Scheme o Fairtrade USA Supply chain o Social Accountability International o Global GAP GRASP o SEDEX SMETA o Business Social Compliance Initiative (BSCI) Consultation question 12. Are there additional credible third party standards that should be considered? Consultation Document Labour requirements for fisheries and supply chains 8

9 Annex 1: Fishery and Supply Chain MSC Forced and Child Labour Self-Declaration Statement and Form The undersigned is the client for the assessment process/certification (delete as appropriate) of (name of fishery/supply chain company. In accordance with section xx (see section 3.0) of MSC s certification requirements we hereby state that we are not associated with the following: Forced labour as defined by the International Labour Organisation Child labour as generally defined by ILO and the flag state of our operation Signed. Date Please note that a guidance document will be developed to support fishery and chain of custody certificate holders and applicants to fill out this form. Fishery information Name of fishery Number of vessels in fleet Flag state(s)of vessels Vessel type Fishing gear used Species targeted Date of self-declaration Name of person filling self-declaration Position/Rank Exemption status (Yes/No) Rationale to be provided if exempted. Note: Fisheries or supply chains with an exemption status may not be required to complete the remaining sections of the form Supply chain company information Consultation Document Labour requirements for fisheries and supply chains 9

10 Name of certificate holder Management system (common ownership; Centralised management system e.g. Group of Independent operators) Country of central office Additional countries represented in the certificate Scope of activities included in certificate Use of subcontractors and/or service providers(y/n) If yes to above, subcontractor s and/or service provider s activity and location Date of self-declaration Name of person filling self-declaration Position/Rank Exemption status (Yes/No) Rationale to be provided if exempted. Note: Entities with an exemption status may not be required to complete the remaining sections of the form SELF-DECLARATION SECTION A Subject Y/N Policies, systems, procedures in place or other justification to identify and ensure this issue is addressed 1 All work is voluntary 2 Workers are free to leave their employment under reasonable notice periods 3 No worker is held in debt bondage 4 No child labour, according to national legislation 5 Compliance with labour legislation, legislation on child labour CAB comment Consultation Document Labour requirements for fisheries and supply chains 10

11 SECTION B: Additional information to be provided by entities where flag or port state or national jurisdiction within which the company operates, is listed as a Tier 2 watch list or Tier 3 country in the most current Trafficking in Persons (TIP) Report Subject Y/N Policies, systems, procedures in place or other justification to identify to ensure this issue is addressed All employed and subcontractor employees are aware of recruitment policies and practices. If used, only licensed recruitment agencies are used No recruitment fees are required All workers have contracts All workers both employed and subcontracted have control of their own Identification paper/documents CAB comment Consultation Document Labour requirements for fisheries and supply chains 11

12 FOR CONSULTATION {Insert Consultation Dates} Annex 2: Process for self-declaration Consultation Document Labour requirements for fisheries and supply chains 12