Responding department: Office of Human Rights, Ministry of Foreign Affairs and Cooperation
Note: This response was originally submitted in Spanish. Unofficial English translation provided by Business & Human Rights Resource Centre.
Has your government taken any initiatives to reduce companies’ negative impacts on human rights that you consider particularly successful?
- The Spanish Agency for International Development Cooperation (AECID), which is attached to the Ministry of Foreign Affairs and Cooperation (MAEC), has designed a ‘Protocol for the management of public-private partnerships for development’, with a focus on human rights, which includes a series of exclusion criteria and other assessment criteria in relation to partner or participant companies. The exclusion criteria include: direct or indirect use of child labour, forced labour or slave labour; anti-union practices; actions classified as bribery or corruption; and environmentally damaging activities. With regard to the assessment criteria, companies' adherence to the following internationally recognized principles and guidelines is valued as positive: the fundamental conventions of the International Labour Organization (ILO); the OECD Guidelines for Multinational Enterprises; the ten principles of the United Nations Global Compact; ISO standard 26000 on corporate social responsibility; the ILO's Tripartite declaration of principles concerning multinational enterprises and social policy; the United Nations Guiding Principles on Business and Human Rights; submission by the company of a sustainability report and corporate social responsibility (CSR) reports.
- In 2014, the AECID launched a call for development cooperation grants for development innovation ventures, which was open to all stakeholders as well as to the private business sector. The call offers financing to ventures that promote innovative solutions in Spanish cooperation partner countries. Such innovations will have already been developed and tested at the pilot level, for the purpose of implementing them as well as demonstrating their replicability on a larger scale and their potential positive impact on the living conditions of those at the base of the socio-economic pyramid. They should address economic, environmental and social problems of development and adopt a multi-disciplinary approach, going beyond the merely technological domain. According to the grant call: “within the framework of the Policy Coherence for Development strategy led by the OECD, successful applicants will be required to comply with the standards and guidelines on human rights, gender equality and corporate social responsibility, the principles of the United Nations Global Compact, the United Nations Principles for Responsible Investment, the World Labour Organization's conventions on decent work and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Consequently:
1. They must not perform or finance any action that entails an unacceptable risk of contributing to or being complicit with acts or omissions that infringe on those principles, such as human rights violations, corruption or environmental and social damage.
2. They must neither offer nor give to a third party, nor request or accept or have promised, directly or indirectly, for themselves or for another party, any donation or payment, compensation or benefit of any kind that is or could be considered to constitute an illegal and corrupt practice.”
- On 24 October 2014, the Spanish government approved the Spanish Corporate Social Responsibility Strategy, led by the Ministry of Employment and Social Security. This Strategy and the National Plan on Business and Human Rights (NPBHR), which is pending approval, have been coordinated with each other. Hence, the Strategy refers to respect for and protection of human rights throughout the value chain. Especially at the international level, companies must cooperate to ensure respect for human rights within their sphere of influence, paying particular attention to environments in which there are insufficient guarantees regarding the respect and protection of human rights.
What department or departments have significant responsibility for business and human rights within your government?
- Ministry of the Presidency
- Ministry of Foreign Affairs and Cooperation
- Ministry of Justice
- Ministry of Finance and Public Administration
- Ministry de Employment and Social Security
- Ministry of Industry, Energy and Tourism
- Ministry of the Economy and Competitiveness. The Directorate-General for Trade and Investment of the State Secretariat for Trade is the National Contact Point specified in the OECD Guidelines.
- Ministry of Health, Social Services and Equality
The draft NPBHR envisages the creation of a Monitoring Committee, on which the different departments with responsibilities in relation to business and human rights will be represented.
Has your government undertaken new business & human rights initiatives or strengthened existing ones since the endorsement of the UN Guiding Principles in June 2011?
What are the top 5 priority issues that your government has taken steps to address since June 2011?
Types of company impacts prioritised:
- Forced labour & trafficking
- Sexual Harassment
- Women's Rights
- Other priority issue: Access to Justice
Actions on forced labour & trafficking
The Spanish government is currently undertaking a reform intended to improve victim identification procedures and better meet the special needs of trafficked children.
Organic Law No. 10/2011 of 27 July amended Article 59 bis of Organic Law No. 4/2000 of 11 January on the rights and freedoms of foreign nationals in Spain and their social integration, with the aim of improving the protection of possible foreign victims of trafficking that are in an irregular situation, and facilitating their cooperation with the authorities in the investigation of those crimes.
The Framework Protocol for the Protection of Victims of Human Trafficking of 28 October 2011.
Actions on discrimination
The Institute of Women and Equal Opportunities - within the framework of a collaboration agreement entered into with the Ministry of Health, Social Services and Equality, through the State Secretariat for Social Services and Equality and the Foundation for Diversity - is promoting the compilation of good business practices in diversity management, with the aim of disseminating, promoting and contributing to greater implementation of the Diversity Charter. This process will culminate in a public act of acknowledgement of the best practices identified, and the drafting of a compilation thereof for the purpose of disseminating and transferring good practices.
A support service for Victims of Racial or Ethnic Discrimination ([link]) has been set up by the Council for the Elimination of Racial and Ethnic Discrimination, which is attached to the Ministry of Health, Social Services and Equality. Although this service does not exclusively deal with the business sector, it does frequently receive complaints and assist potential victims of discrimination in the area of employment, therefore undeniably playing a role in relation to respect for human rights by businesses. The service is provided by a network of non-governmental organizations with expert knowledge in matters relating to equal treatment and non-discrimination. It has offices throughout Spain, with the aim of guaranteeing maximum accessibility to any victim of racial or ethnic discrimination that may seek its assistance.
Since 2011, there have been numerous legislative improvements with regard to equal opportunities between women and men. Among other laws, the following have been approved: Royal Decree-Law 11/2013 of 2 August on the protection of part-time employees and other urgent economic and social measures; Law 27/2011 of 1 August, which amends the General Social Security Act with regard to women's social and economic benefits; the Consolidated Text of the Law on the Regulation and Supervision of Private Insurance has been amended, with the aim of eliminating differences on grounds of gender in insurance premiums and benefits; Law 14/2011 of 1 June on Science, Technology and Innovation, the general objectives of which include promoting the inclusion the gender perspective in those fields; or Law 3/2012 of 6 July on urgent measures to reform the labour market, which maintains "qualified assistance" to facilitate the recruitment of women.
The government has also approved a Strategic Plan for Equal Opportunities 2014-2016 which defines priority objectives and measures for eliminating any gender-based discrimination that might persist and achieving equal opportunities between women and men.
To help ensure the right to work with equal opportunities for women and men through the use of legally established equality measures and plans in companies, there are, on the one hand guidance and technical support instruments for companies via the institutional website ([link]), and incentives to support the voluntary preparation and implementation of equality plans in Small and Medium Enterprises (SMEs) through annual grant calls.
To recognise companies that stand out for their application of equality policies among their employees, an “Equality in the Workplace” seal of approval has been introduced. To identify and raise the visibility of good practices that could be used by other companies, in June 2013, the network of companies with the "Equality in the Workplace" seal of approval was inaugurated.
The Agreement of the Council of Ministers of 21 June 2013, which approves measures to reduce administrative burdens and improve regulation, includes several measures to make the following resources, among others, available to businesses: a self-diagnosis gender pay gap tool, which makes it possible to detect and correct wage inequalities between women and men; an online technical advisory service for companies, to support the design and drafting of equality measures and plans.
On 8 July 2013, the Ministry of Health, Social Services and Equality, and the Ministry de Employment and Social Security signed a cooperation agreement for permanent monitoring effective equality between women and men at companies. The aim of this Agreement is to articulate collaboration between the two ministerial departments with the aim of establishing the necessary mechanisms to make it possible to maintain, promote and increase compliance with all the legislation in force regarding business obligations intended to achieve effective equality between women and men, and to prevent and avoid gender-based discrimination, and sexual and gender-based harassment, in companies.
Actions on sexual harrassment
The measures set forth in the 21 June 2013 Agreement of the Council of Ministers, which approves measures to reduce administrative burdens and improve regulation, include providing companies with a reference manual for preparing a protocol for the prevention of sexual harassment and gender-based harassment in the workplace.
The cooperation agreement for permanent monitoring in companies of effective equality between women and men, which was signed on 8 July 2013 between the Ministry of Health, Social Services and Equality and the Ministry of Employment and Social Security, aims to articulate collaboration between the two ministerial departments and establish the necessary mechanisms to make it possible to maintain, promote and increase compliance with all the legislation in force regarding business obligations intended to prevent and avoid sexual and gender-based harassment.
Actions on women
On 19 June 2012, the Ministry of Health, Social Services and Equality launched the “Companies for a society free of gender-based violence” initiative, through signing cooperation agreements with large national companies in different sectors. The initiative addresses awareness-raising and/or social and labour integration of women who suffer gender-based violence and, when the situation so requires, facilitating their geographical mobility. The Ministry of Health, Social Services and Equality is also entering into cooperation agreements with not-for-profit organizations, to facilitate labour mediation between companies and women who have been subjected to gender-based violence.
With the aim of involving all social stakeholders in achieving a society free of gender-based violence, companies are key, due to their capacity to impact and raise awareness, among both employees and customers, of the assistance they provide to women who have been abused.
At present, 56 private companies, six public corporations and two contributing entities - the Spanish Red Cross and the Integra Foundation - are taking part in the initiative.
In the area of awareness raising, companies have undertaken more than 50 actions aimed at increasing social awareness and involving all citizens in achieving a society free of gender-based violence.
In the area of integration into the labour market of women who suffer gender-based violence, in the first half of 2014, 447 contracts were signed and 326 women being recruited. Since the start of the programme, 1,873 contracts have been signed to date.
With the aim of modernising the judicial system and increasing its efficiency, shortening judicial response times, the Action Plan of the Secretariat-General for the Justice Administration 2012-2014, which seeks a structural modification of said administration, has been adopted. To strengthen training in this area, a Continuing Professional Development Plan is prepared each year by the Centro de Estudios Jurídicos [Centre for Legal Studies], which is attended by members of the Public Prosecutor's Office, court clerks, forensic physicians and other personnel working for the Justice Administration, as well as state attorneys.
On 5 July 2011, Law 18/2011 regulating the use of information and communication technologies in the Justice Administration was approved. Its objective is to facilitate the dealings of citizens and professionals with the justice system.
Has your government adopted a National Action Plan on business and human rights as encouraged by the UN Human Rights Council and UN Working Group on business & human rights, or will it do so in the future?
Since 2012, work has been ongoing on the drafting of the National Plan on Business and Human Rights (NAP), which is at the final stage of processing, prior to being sent to the Council of Ministers for approval. The NPBHR sets out, one by one, Guiding Principles based on the United Nations' "protect, respect and remedy” framework.
On 24 October 2014, the Council of Ministers approved the Spanish Corporate Social Responsibility Strategy, which has a human rights focus.
If your government has adopted a National Action Plan or is planning on adopting one, please highlight whether it makes reference to international human rights standards and whether it was developed in consultation with affected stakeholders.
The NAP makes reference to international human rights standards, in particular the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights (International Bill of Human Rights), the principles concerning the fundamental rights established in the ILO Declaration on Fundamental Principles and Rights at Work, the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (ILO), the OECD Guidelines for Multinational Enterprises, the OECD Principles of Corporate Governance and the principles of the United Nations Global Compact and other instruments established within the framework of the United Nations.
The NAP was prepared through a transparent process open to all stakeholders (companies, civil society and public administration). In this process, dozens of intersectoral meetings were held with the aim of harmonising positions and generating consensus. These meetings were attended by around a hundred representatives from government, civil society and businesses.
Access to remedy: What steps have been taken to develop new judicial or administrative remedies or to reduce barriers to existing remedies for victims?
Royal Decree-Law 3/2013 of 22 February, which modifies the legal aid system, recognises the right to legal aid, among others, in the following cases:
“Article 2. Personal scope of application.
In accordance with the terms and scope provided for in this law and in the international treaties and conventions on the subject to which Spain is a party, the following persons shall have the right to legal aid: ….
d) Under labour jurisdiction, in addition, employees and beneficiaries of the Social Security system, both for defence during a trial and for bringing actions to assert labour rights in insolvency proceedings…
g) Irrespective of the existence of the means to litigate, the right to legal aid is recognised and shall be given immediately to victims of gender-based violence, terrorism and human trafficking in proceedings which are related to, arise from or are a consequence of their condition of victim, as well as to minors and persons with a mental disability where they are victims of situations of abuse or mistreatment.
The draft organic law of the Statute of the Victim of Crime, a general catalogue of the procedural and non-judicial rights of victims of crime, regulates restorative justice services for the material and moral redress of the victim, including mediation.
The NAP, which is currently being worked on, provides for the development of the following remedies:
- MEASURE 31: “A report […] will be prepared in line with Measures 2, 5 and 6 on the possibilities for developing judicial remedies for abuses committed, in accordance with the Guiding Principles. The legal remedies that enable claims of civil liability against a company that has harmed or undermined human rights will be studied, including the consequences of failing to act with due diligence to prevent such damage caused by companies' own conduct, by their employees or agents, or by companies belonging to the same group. A review of current legislation will be undertaken in order to identify and eliminate legal or practical barriers to liability claims against companies in the event of human rights abuses or environmental damage caused by their activities, and the impartiality, integrity and capacity of the existing remedies to enforce and uphold the due process of law will be assessed.”
- MEASURE 32: “The government will develop the necessary instruments to ensure that citizens in general, consumers and stakeholders know and understand the state mechanisms and alternative mechanisms for filing complains and have access to them, removing any cultural, social, physical or financial barriers to accessing that information. To achieve that, a map of existing legal aid resources will be prepared.”
Access to remedy: What steps have been taken to develop new non-judicial remedies, improve existing mechanisms, and reduce barriers for victims?
Spain's public administration has set up a non-judicial system for resolving conflicts between consumers and companies. This system is primarily regulated by Articles 57 and 58 of Royal Legislative Decree 1/2007 of 16 November, which approves the Consolidated Text of the General Law for the Protection of Consumers and Users, and supplementary laws, and Royal Decree 231/2008 of 15 February, which regulates the Consumer Arbitration System.
In relation to labour disputes, since 1996, the Spanish state has had a National Agreement on the Extrajudicial Settlement of Labour Disputes (the so-called ASEC I, II, III and IV), signed by the most representative unions and business associations. In addition, all the Autonomous Communities in Spain have adopted an Agreement on the Extrajudicial Settlement of Labour Disputes.
Mediation in penal matters can be requested by any person who is a victim or defendant in criminal proceedings, although it must be agreed to by the examining (or enforcing) judge in the proceedings and have the approval of the Public Prosecution Service. The mediation process must be accepted by both parties.
In relation to the development of non-judicial remedies, the draft NAP establishes the following:
- “MEASURE 33: The government will implement one or more non-judicial mediation and complaint mechanisms to receive complaints and mediate between the parties, in accordance with the criteria established in Principle No. 31, with the capacity to investigate and the authority to enforce, where appropriate, the redress, establishing criteria of accessibility to ensure that they are accessible to vulnerable groups. The Monitoring Committee will conduct a study for that purpose. After an exhaustive analysis of the current applicable legislation and existing remedies, as well as of the possible needs expressed by the parties, and taking into consideration the recommendations of the study conducted, this working group will recommend either extension of the mandate of the existing non-judicial remedies or the creation of new remedies, one year after approval of this Plan, providing the Monitoring Committee with a schedule and an allocation of responsibilities for the implementation thereof.”
- MEASURE 34: “Spain's National Contact Point for the OECD Guidelines for Multinational Enterprises will be given official status and sufficient (financial and technical) resources, and the reforms and initiatives undertaken by other contact points in recent years will taken into account, to enable it to correctly perform its two-fold role of disseminating the OCED Guidelines for Multinational Enterprises through the Spanish business fabric and contributing to resolving possible cases of non-compliance with those Guidelines by companies.”
- MEASURE 35: “The government will implement coordination tasks with international financial organizations in relation to existing non-judicial remedies or the need to define and implement such remedies. In addition, the government will establish criteria of transparency and public information before and after resolution of the cases dealt with, and will establish a programme for monitoring and enforcing the settlements or agreements adopted to end conflicts.”
Access to remedy: For companies headquartered in your country or their subsidiaries, has your government taken steps to enhance accountability for human rights impacts abroad?
Organic Law No. 1/2014 of 13 March, on universal justice, amended Article 23.4 of the Judiciary Act with regard to the scope and limits of jurisdiction. Spain's Criminal Courts will examine acts committed by Spanish or foreign nationals outside of Spain that could be classified, according to Spanish law, as one of the crimes listed in said legal provision, which includes more serious human rights violations, when the conditions stipulated therein are met.
Furthermore, Organic Law 5/2010 of 22 June, which amends Organic Law 10/1995 of 23 November, on the Code of Criminal Procedure, introduced a new article (Art. 31 bis) on the criminal liability of legal entities.
Meanwhile, Article 116 of the Code of Criminal Procedure establishes the civil liability of legal entities.
Which factors impede your government’s ability to take action on business and human rights?
Most important factor:
- Lack of understanding or awareness of business & human rights in government
- Challenges of coordinating across government departments
- Lack of resources for enforcement, monitoring and prosecution
- Opposition or lack of consensus within government
- Opposition by economic interest groups or business associations
- Other opposition by influential people or groups outside government
Not a factor:
- Political limitations imposed by foreign governments or multilateral institutions
- Concern about deterring foreign investment
What, if any, form of support would your government welcome the most to help advance its actions to improve companies’ impacts on human rights?
Capacity-building and collaborative learning with other countries.