Transparency in Supply Chain Legislation - Overview
California Transparency in United Kingdom Modern Slavery France Duty of Vigilance Act Australia Modern Slavery Act Supply Chains Act Act Summary • Requires qualifying organisations to • Requires qualifying organisations to make a • Requires qualifying organisations to make a • Requires qualifying organisations to make make a single widely-accessible public widely-accessible public statement each public statement to shareholders each a widely-accessible public statement each statement about their enterprise and its year about their enterprise, supply chains year about their enterprise, subsidiaries and year about their enterprise, supply chains direct supply chains for tangible goods and any steps taken to address modern supply chains. and any steps taken to address modern offered for sale. slavery. • Imposes specific requirements on content slavery. regarding implementation of reasonable • Has some mandatory content • Imposes specific requirements on • Does not impose specific requirements on vigilance measures concerning risk requirements for the modern slavery content regarding steps taken to address content regarding steps taken to address identification and prevention of severe statement. modern slavery. modern slavery. violations of human rights, serious bodily injury or environmental damage. • Companies operating in New South Wales should take note of the lower reporting threshold and penalties of related New South Wales Modern Slavery Act. Expectations • Having provided detailed guidance on • Having provided detailed guidance on what • In establishing a new duty for a limited Having provided detailed guidance on what it what it views as best practice, the State it views as best practice, the Government number of very large French companies, the views as best practice, the Government Government expects careful scrutiny by expects careful scrutiny by the public, Government seeks to go beyond routine expects careful scrutiny by the public, NGO’s supply chain transparency statements, and and other actors to stimulate comprehensive the public, NGO’s and other actors to NGO’s and other actors to stimulate sets a high standard to which all will comply. and transparent reporting. stimulate comprehensive and comprehensive and transparent reporting. transparent reporting. • Having provided guidance on preparation • In turn, this is expected to drive and effective implementation of a vigilance In turn, this is expected to drive organisations • In turn, this is expected to drive organisations to develop and implement plan, the Government expects careful to develop and implement meaningful plans organisations to develop and implement meaningful plans to address modern scrutiny by all interested parties to stimulate to address modern slavery in their enterprise and business relationships. meaningful plans to address modern slavery in their enterprise and business comprehensive and transparent reporting. slavery in their enterprise and business relationships. relationships. Who is From 1 January 2012, any company that From 31 March 2016, any company that meets From 1 January 2018, any company that at the From January 1st 2019: affected meets all three conditions below in any one all three conditions below in a financial year: end of two consecutive financial years: tax year: California Transparency in United Kingdom Modern Slavery France Duty of Vigilance Act Australia Modern Slavery Act Supply Chains Act Act 1. Identifies as a retail seller or manufacturer 1. Commercial organisation that supplies 1. Employs at least 5000 employees in the in its California tax returns; goods or services including a trade or company and its direct and indirect subsidiaries Entities will need to report under the Act if 2. Satisfies the legal requirements for “doing profession; with its headquarters on French territory; OR they: 2. Employs at least 10000 employees worldwide business” in California; and 2. Carries on business or part of a business in its direct and indirect subsidiaries with its • have a consolidated revenue of at least 3. Has annual worldwide gross receipts (even if its main function is non-commercial) headquarters on French territory or abroad. exceeding US$100 million in a single tax in any part of the United Kingdom; and AUD$100 million over its twelve month year. 3. Has total annual turnover of not less than reporting period (for New South Wales, this threshold is AUD$50 million) GBP36 million.
AND
are an Australian entity at any time in that reporting period
OR • are a foreign entity carrying on business in Australia at any time in that reporting period. Requirements Each affected organisation must publish a Each affected organisation must publish a Each affected company must: Each affected organisation must publish a statement that: statement that: statement that: 1. Establish and implement an effective vigilance plan; 1. States the steps it has taken to ensure 1. States the steps the organisation has taken 1. States the steps the organisation has taken that slavery and human trafficking is not during the financial year to ensure that slavery 2. Publically disclose the vigilance plan and its during the financial year to ensure that taking place in its direct supply chains for and human trafficking is not taking place in effective implementation, including in the slavery and human trafficking is not taking report mentioned in Article L. 225-102 of tangible goods offered for sale; and any part of its own business and in any of its place in any part of its own business and in the French Commerce Code, which deals with any of its supply chains 2. Is published on the organisation’s website, supply chains; OR state that the organisation the social and environmental consequences of has not taken any such steps; linked in a prominent way on the home the business and its societal commitments to 2. Is approved by the Board of Directors or page. 2. Is approved by the Board of Directors, or promote sustainable development and equivalent management body; equivalent management body; diversity; and 3. Present the report at an ordinary general There is no requirement for this statement 3. Is signed by a Director, or equivalent; and 3. Is signed by a Director, or equivalent; and meeting to be held within six months of the end to be approved or signed by the Board of 4. Is available on the organisation’s website, of the applicable financial year. 4. Is published on a central government Directors. linked in a prominent way on the home page. The publication does not appear to have to be repository on the company’s website nor in English. Statement frequency: The organisation is only ever required to publish one statement, 2 California Transparency in United Kingdom Modern Slavery France Duty of Vigilance Act Australia Modern Slavery Act Supply Chains Act Act no matter how many years it meets the Statement frequency: Each year that the Statement frequency: Each year that the qualifying conditions. company meets the requirements. company meets the requirements.
Penalties • The Act carries no specific criminal or • The Act carries no specific criminal or • If a company does not meet its obligations • The AU MSA carries no specific civil penalties relating to transparency civil penalties relating to transparency with three months of receiving formal criminal or civil penalties relating to statements. statements. notice to comply with its duties, following transparency statements. The NSW the request of any person with a Act contains a range of penalties • The Office of the Attorney General may • The Home Secretary may bring civil legitimate interest, the relevant that have not been provided for in bring civil proceedings against proceedings for failure of companies to jurisdiction can urge said company to the federal proposal. Penalties of up companies that do not report, but not provide the required statement, but not comply with its duties, under financial to 10,000 penalty units or the compulsion if appropriate. equivalent of A$1.1 million will for lack of action against modern for the quality of this statement), or lack apply to companies who do not • slavery in its supply chains. The Office of action against modern slavery in its The author of any failure to comply with comply. the duties specified in Article L. 225-102-4 has not advised any further applicable supply chains. • The Government has the power to of the French Commerce Code shall be penalties. publicly name entities that fail to liable and obliged to compensate for the comply in certain circumstances. harm that due diligence would have The Government can also require permitted it to avoid. The law does not entities that fail to comply to take place an upper limit on this compensation. remedial action, including requiring an entity to provide a statement. Additional Organisations must disclose the extent of An organisation’s slavery and human The vigilance plan should include: The statement should: information their efforts in five areas: verification, audits, trafficking statement may include: 1. A mapping that identifies, analyses and ranks certification, internal accountability, and 1. Identify the reporting entity 1. The organisation’s structure, business and risks; training, specifically whether it: supply chains; 2. Procedures to regularly assess, in accordance 2. Describe the structure, operations and 1. Engages in verification of product supply with the risk mapping, the situation of 2. Policies on slavery and human trafficking; subsidiaries, subcontractors or suppliers with supply chains of the reporting entity/entities chains to evaluate and address risks of 3. Due diligence processes in relation to whom the company maintains an established trafficking and slavery (and specify if this slavery and human trafficking in its business commercial relationship; 3. Describe the risks of modern slavery was not conducted by a third party); and supply chains; 3. Appropriate action to mitigate risks or practices in the operations and supply chains 2. Conducts audits of suppliers to evaluate prevent serious violations; of the reporting entity, and any entities that 4. Areas of its business and supply chains supplier compliance with company the reporting entity owns or controls where there is a risk of slavery and human 4. An alert mechanism that collects reporting of standards for trafficking and slavery in existing or actual risks, developed in working trafficking, and steps taken to assess and supply chains (and specify if the audit was partnership with the trade union organizations 4. Describe the actions taken by the reporting manage that risk; entity and any entity that the reporting entity not independent and unannounced); representatives of the company concerned; and owns or controls, to assess and address those
3 California Transparency in United Kingdom Modern Slavery France Duty of Vigilance Act Australia Modern Slavery Act Supply Chains Act Act 3. Requires direct suppliers to certify that 5. Its effectiveness in ensuring that slavery and 5. A monitoring scheme to follow up on the risks, including due diligence and remediation materials incorporated into the product trafficking is not taking place in its business or measures implemented and assess their processes comply with the laws regarding slavery and supply chains; and efficiency. 5. Describe how the reporting entity assesses human trafficking of the countries in which 6. Training available to staff on slavery and the effectiveness of such actions they are doing business; human trafficking. 4. Maintains internal accountability 6. Describe the process of consultation with standards and procedures for employees or any entities that the reporting entity owns or contractors failing to meet company controls. For joint modern slavery statements, standards on slavery and trafficking; and in the case of a reporting entity being 5. Provides company employees and covered by the statement, the entity giving the statement must be included management with direct responsibility for supply chains with training on human 7. Include any other information that the trafficking and slavery, and mitigating risks reporting entity, or the entity giving the within the product supply chain. statement, considers relevant
8. Be prepared in a form approved by the Minister
9. Be approved by the principal governing body of the entity
10. Include details of approval by the principal governing body of the reporting entity
11. Be signed by a responsible member of the entity Good The following Statements are good examples The following Statements are good examples The following Statements are good examples of No statements have been published under the responses under each of the listed categories. examples of responses that are in line with of responses that are in line with the reporting Act yet. For entities with financial years the reporting requirements of the Act under requirements of the MSA under each of the The Sherpa Vigilance Plans Reference Guidance ending on 30 June, their first reporting period was used to analyze the quality of Statements. each of the listed categories: listed categories: will be 1 July 2019 to 30 June 2020
Verification: GAP, 3M
4 California Transparency in United Kingdom Modern Slavery France Duty of Vigilance Act Australia Modern Slavery Act Supply Chains Act Act Audits: GAP, Merck, Xerox Policies: Marks & Spencer, Tesco, Unilever, Willmott Dixon Risk Mapping: Vinci, Société Générale, Certification: Merck Eramet, Bic, Carrefour Due diligence: Marks & Spencer Internal accountability: 3M, Xerox Subsidiary Assessment Procedures: Vinci, Risk locations: Marks & Training: GAP, 3M, Merck, Xerox Schneider Electric, Eramet, Bic Spencer, Tesco, Unilever GAP‘s Statement also provides a good Risk Mitigation: Vinci, Société Générale, Effectiveness: Marks & Spencer example of additional information on (1) Eramet evaluating risk, (2), measuring effectiveness Training: Marks & Alert Mechanisms: Société Générale, and (3) working with others to increase Spencer, Tesco, Unilever, Willmott Dixon Vinci, Schneider Electric, Danone impact. The statements of Marks & Spencer, Monitoring Scheme: Société Générale Unilever and Willmott Dixon also provide good examples of working with others to increase impact. Common Common areas of non-compliance include: Common areas of non-compliance include: Common areas of non-compliance include: No statements have been published under the mistakes Act yet. For entities with financial years 1. Failure to publish a Statement on the 1. Failure to publish a Statement on the 1. Failure to publish a Statement on the ending on 30 June, their first reporting period company’s website; and company’s website at all; company’s website at all; will be 1 July 2019 to 30 June 2020. 2. No link to Statement provided on the 2. No link to Statement provided on the 2. Using vague / generic language or lacking website homepage. website homepage; concrete measures; 3. Statement not approved by the Board of 3. Lacking transparency/ information (i.e. unclear Directors (or equivalent); and what risks were identified or how companies 4. Statement not signed by a Director (or plan to respond to them); equivalent). 4. Lacking a dedicated “Vigilance Plan” section in As of May 2018, the Modern Slavery reference document, having instead a collection Registry assessed 81% of submitted reports as of references to other chapters or documents; failing at least one of these requirements.
5 California Transparency in United Kingdom Modern Slavery France Duty of Vigilance Act Australia Modern Slavery Act Supply Chains Act Act
Common 5. Having a Vigilance section but frequently referring to other sections of the reference mistakes document rather than detailing the initiatives in one section, making it difficult to assess company efforts; 6. Declaring risk mapping was done without publishing methodology or results; 7. Naming tools used to combat issues / risks without explaining what they are; 8. Risk mitigation actions only partially addressing risks mentioned; 9. Failure to mention consolidating with trade unions in developing alert mechanisms; 10. Lacking a monitoring scheme for implemented measures or mentioning such a scheme is in development without detailing methodology or time frame; 11. Announcing relevant human rights issues without explaining how this was determined.
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