Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Private Employment Agencies Convention, 1997 (No. 181) - Netherlands (Ratification: 1999)

Scope of the Convention. The Government provides in its report information in reply to the 2013 observation and to the concerns raised by the Netherlands Trade Union Confederation (FNV) in August and September 2013. With respect to the concern of the FNV on the rise of the so-called ‘contracting companies’ that provide workers to a third party (user enterprise) but do not fall within the scope of the Collective Labour Agreement for Temporary Agency Workers, the Government indicates that whether companies fall under the scope of a particular collective labour agreement is actually determined by the parties themselves and not by government. Regarding ‘payrolling’, a situation in which an employee is hired by a company but is given an employment contract with the payrolling company that pays the wages, the Government indicates that a resolution was adopted in Parliament in which the Government is requested to equalize the terms of employment between payroll-employees and the user company’s own employees. The Government is also awaiting the upcoming advice on this matter from the Dutch Labour Foundation. With regard to the issues raised concerning the Placement of Personnel by Intermediaries Act (WAADI), the Government states that the WAADI aims to prevent that the employer of the striking workers hires third party workers (such as temporary agency workers) to take over the work of striking workers. It adds that the commissioning company therefore has the right to have a third party take over the work. Moreover, the Government indicates that, as to the issues mentioned in Articles 11 and 12 of the Convention, the protection of the position of temporary workers is equal to that of regular employees. The Government states that the user enterprise is responsible for the working conditions of the hired temporary agency workers. The Committee invites the Government to give a general appreciation of the manner in which the Convention is applied and indicate the number of workers covered by the measures giving effect to the Convention (Part V of the report form).

Article 6. Protection of personal data. The Committee notes that there are two Acts to protect the personal data of workers: the Medical Examinations Act and the Data Protection Act. The Medical Examinations Act sets restrictions on certain medical examinations and the Data Protection Act regulates the protection of personal data of employees. The Data Protection Agency supervises compliance by employers of the Data Protection Act. The Committee invites the Government to provide further information on the activities of the Data Protection Agency with regard to private employment agencies.

Articles 10 and 14. Supervision of the operation of private employment agencies. The Government recalls that the Dutch temporary work agency system is a mixture of public rules and private commitment. The Inspectorate of Social Affairs and Employment enforces compliance of labour laws concerning minimum wage, working time, working permits, placement of personnel by intermediaries and health and safety. Since June 2012, 69 administrative investigations were initiated by the authorities, focusing on 103 temporary work agencies and 200 employers. In addition to this intervention team, regular inspection teams inspected 655 temporary work agencies and 802 employers in the period 2012–13. In 29 per cent of these investigations, an infringement was identified. In total, 35 criminal investigations were started. The Government further indicates that since July 2012, every staffing agency has to register at the Chamber of Commerce. Staffing agencies that do not register, or clients that hire staff through agencies that are not registered, risk a high administrative fine. Both Dutch and foreign staffing agencies need to register and non-compliance is a signal for potential offence. The Committee notes that, as from 2007, the Dutch social partners have private and voluntary rules describing financial, fiscal and labour conditions. If a staffing agency complies with these rules, it can apply for a certificate that provides the staffing agency with a hallmark. Applying for a certificate means that the staffing agency is subject to inspection twice a year. The obligation to register makes it possible for the Labour Standards Association [Stichting Normering Arbeid (SNA)] to invite temporary work agencies that do not have a hallmark, to apply for the certificate. The Dutch Accreditation Council assesses the certifying bodies which execute the self-regulation and it exercises supervision to guarantee the impartiality and expertise of the certifying body. Furthermore, a bipartite foundation, called SNCU, is installed for the control and enforcement of the Collective Labour Agreement for Temporary Agency Workers. This so-called ‘CLA-police’ closely cooperates with the Labour Inspectorate, the tax authorities and the SNA. The Committee invites the Government to provide extracts from reports of the inspection services, as well as updated information on the measures taken to eliminate fraudulent and illegal temporary work agencies.

Article 13. Cooperation between the public authorities and private employment agencies. The Government indicates that the public employment service (UWV) and private employment agencies have a longstanding intensive cooperation in assisting jobseekers. In 2012, the UWV and the ABU (Federation of Private Employment Agencies) signed a joint venture agreement in which they committed themselves to joint activities focused on leading more jobseekers to work. They also agreed to promote the influx in work/training jobs for specific groups of jobseekers, such as young persons with disabilities, older unemployed persons (over 55 years of age) and people who are unemployed for more than three months. Moreover, the Government adds that private employment agencies do not have to report on their activities. In this regard, the Committee recalls that private employment agencies shall, at intervals to be determined by the competent authority, provide to that authority the information required by it, with due regard to the confidential nature of such information: (a) to allow the competent authority to be aware of the structure and activities of private employment agencies in accordance with national conditions and practices; (b) for statistical purposes (Article 13(3)). The Committee invites the Government to report on the manner in which efficient cooperation between the public employment service and private employment agencies is promoted and reviewed periodically. It also requests the Government to provide information on the measures taken to ensure that the competent authority receives relevant information on the activities of the private employment agencies.