Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Migration for Employment Convention (Revised), 1949 (No. 97) - Netherlands (Ratification: 1952)

The Committee notes the observations of the Netherlands Trade Union Confederation (FNV), dated 20 August 2012, which were forwarded to the Government for its comments.

Article 6 of the Convention. Equality of treatment with respect to remuneration and enforcement. The Committee notes from the Government’s report that the most important change in the Government’s migration policy has been the free movement of workers to and from eight Central and Eastern European countries which joined the European Union (EU) in 2004. The Committee notes the results from the annual report of the labour inspection services on violations of the Foreign Nationals Employment Act (VAW) and the statutory minimum wage (WML). It notes that administrative penalties were introduced for violations of the VAW from 1 January 2005 and of the WML from 1 January 2007, as a condition for allowing the free movement of workers from Central and Eastern European countries. The Committee notes that in 2010, the labour inspection services detected 564 workers being paid below the statutory minimum wage, approximately 50 per cent of whom came from new EU Member States; 40 per cent were of Polish nationality and approximately 20 per cent of the workers were Dutch nationals. According to the Government, the data for 2011 were probably comparable to those of 2010. The Committee notes that the FNV draws attention to the lack of capacity of the labour inspectorate to monitor the working conditions of migrant workers and considers that the inspection services should concentrate on monitoring the payment of equal wages to nationals and migrant workers for work of equal value, rather than just the statutory minimum wage. The Committee notes that in its observations on the Labour Clauses (Public Contracts) Convention, 1949 (No. 94), the FNV indicates that the wage difference between the wage set by collective agreement and the statutory minimum wage can be as high as 20 per cent in labour-intensive sectors of the Dutch economy. Noting that the FNV considers that the full implementation of Convention No. 94, would substantially contribute to the prevention of discrimination between migrant workers and nationals, the Committee also refers the Government to its comments on this Convention. Furthermore, the Committee takes note of the recommendations of the FNV, in its letter of 21 June 2011 to the Minister of Social Affairs and Employment, to improve the knowledge and awareness of migrant workers from Central and Eastern Europe of their rights and terms and conditions of employment, to provide an information “log book” to migrant workers upon arrival, to strengthen the capacity of the labour inspection services to undertake “on-site” inspections, and to create a greater monitoring role for the social partners. The Committee requests the Government to reply to the observations raised by the FNV and recalls that Article 6 of the Convention requires ratifying States to apply, without discrimination based on nationality, race, religion or sex, to migrant workers lawfully in the country, treatment no less favourable than that which applies to its own nationals in respect of remuneration, in law and in practice. The Committee also requests the Government to provide information on the measures taken to further strengthen the capacity of the labour inspectorate to monitor equal treatment regarding wages paid to migrant workers and nationals beyond the minimum wage.

Article 3 and Annex I, Article 3. Measures against misleading propaganda and supervision of private agencies. The Committee notes that, according to the FNV, there are 300,000 workers from Central and Eastern Europe in the Netherlands, half of them working for temporary agencies, and recalls the importance of measures to protect migrant workers from misleading information stemming from intermediaries or employers, in accordance with Article 3 of the Convention. The Committee notes the Government’s statement that combating fraud in the labour market is one of the priorities of the Ministry of Social Affairs and Employment and that as of 1 January 2013, the administrative fines for labour law offences will be substantially increased. The Government also refers to the launching by the Ministry of Social Affairs and Employment of a multidisciplinary project which aims to strengthen the capacity of the labour inspectorate to tackle “mala fide” temporary work agencies, and to analyse policy measures. The first concrete measure resulting from the project, in which the FNV also participates, was the establishment of a hotline placed within the labour inspectorate, on “mala fide” temporary work agencies for all citizens and companies. The Committee notes that the FNV, while supporting the measures taken by the Government, draws attention to some persistent abusive arrangements by “mala fide” agencies in the construction and transport sectors, leading to discrimination against migrant workers and false competition in the labour market. The FNV further states that the system of self-regulation of private recruitment agencies, which became fully effective in January 2007 and which was to be evaluated in 2008, is not yet well functioning and that certified agencies do not always comply with the rules either. The Committee asks the Government to reply to the observations made by the FNV and to continue to provide information on the supervision of temporary work agencies and the results achieved. Please also indicate whether any code of conduct or other guidelines have been put in place to prevent the use of misleading propaganda leading to abusive practices by temporary work agencies as well as abuse and discrimination by private agencies of migrant workers.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2014.]