Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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

The Committee notes the joint observations of the National Federation of Christian Trade Unions (CNV), the Netherlands Trade Union Confederation (FNV) and the Trade Union Federation for Professionals (VCP) received on 31 August 2017.

Article 1 of the Convention. Information on migration flaws, and laws and regulations relating to emigration and immigration. In its previous comment, the Committee had requested the Government to provide statistical information on migration flows. The Committee takes note of the information provided by the Government in its report indicating that in 2016, a total of 4,535 work permits had been issued to non-EU nationals and that the first countries of origins were India (1,559 permits), the United States (587 permits), and China (377 permits). The Committee further notes the indication from the Government that the current immigration policies favour the immigration of skilled migrant workers. In this regard, the Government indicates that the requirements for workers in start-up companies and graduate students to remain in the country to seek and pursue high skilled employment have been relaxed. In addition, according to the statistical data published by the Central Bureau of Statistics (CBS), the Committee notes that in 2017, 49.4 per cent of the jobs filled by foreign workers were occupied by EU citizens (of whom 43.5 per cent were Polish nationals), and that migrant workers were mainly employed in the sectors of business services and agriculture.

Directive (EU) 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. The Committee previously noted the FNV’s comments that the free movement of service is increasing and should be better regulated, and requested the Government to provide information on the implementation of European Directive 96/71/EC on the posting of workers in the framework of the provision of services. The Committee notes that the Government indicates that the Minister of Social Affairs and Employment took the initiative, together with six ministers from other EU Members States, to send suggestions to the European Commission in order to find a better balance between free movement of services and the protection of workers’ rights. This initiative led to the adoption of Directive (EU) 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. In this regard, the Committee welcomes the adoption of Directive (EU) 2018/957, pursuant to which Member States of the European Union shall apply to posted workers the terms and conditions of employment of the host country in a series of matters, that include remuneration, maximum work periods and minimum rest periods, minimum paid annual leave, minimum age, health, safety and hygiene at work, and accommodation. The Committee notes that Member States of the European Union shall adopt by 30 July 2020, the laws, regulations and administrative provisions necessary to comply with this Directive. On the application of the EU Directives on the posting of workers in practice, the Committee notes the concerns expressed by the Government concerning their improper or abusive use. The Committee also notes that in their observations, the CNV, the FNV, and the VCP call for a better implementation of the existing instruments to combat undesirable, exploitative and illegal practices against posted workers, including through the strengthening of the capacity of the labour inspectorate and an increased transnational cooperation. The Committee requests the Government to provide information on the measures taken to ensure that posted migrant workers benefit from the protections provided for by the Convention in practice.

Article 3 and Annex I, Article 3. Measures against misleading propaganda and supervision of private agencies. In its previous comment, the Committee noted the Government and FNV’s statement that a high number of European migrant workers were victims of abusive arrangements made by private employment agencies and requested information on the supervision of these agencies. The Committee also noted the Government’s indication that all parties agreed that further improvements were needed with regard to the self-regulation of private employment agencies. The Committee notes the Government’s information that a series of measures have been agreed upon with the social partners, leading to the improvement of the quality of the inspections and a better exchange of information between the Tax and Customs Administration, the labour inspectorate (SZW), and the foundations in charge of the self-regulation of private employment agencies (such as the Labour Standards Foundation (SNA), and the Collective Labour Agreement for Temporary Agency Workers Foundation (SNCU). In their observations, the CNV, the FNV, and the VCP, point out that the SNA issues certificates of compliance with the applicable standards to employment agencies that use schemes such as bogus self-employment, subcontracting and outsourcing to evade the application of the Collective Labour Agreement for Temporary Employment Agencies – resulting in unequal treatment and abuses. In this regard, the Committee takes note of the Government’s indication that the Dutch Labour Market Fraud (Bogus Schemes) Act, which penalizes exploitation, displacement, and unfair competition in labour conditions, was adopted in July 2015. In that regard, the Committee notes that the United Nations Human Rights Committee expressed concern about the growing number of migrant workers, particularly from Poland and Hungary, who are coerced by employment agencies to work under exploitative conditions. (CCPR/C/NLD/CO/5, 22 August 2019, paragraph 26). The Committee requests the Government to provide further information on the measures taken to regulate and supervise the activities of private employment agencies and the obstacles encountered.

Article 6(1)(a)(i). No less favorable treatment with respect to remuneration. Legislative developments. In its previous comment, the Committee noted the Government’s efforts to limit the deductions of housing and health insurance costs from the wages of migrant workers and requested information on the application of the principle of equal treatment with respect to remuneration. The Committee notes with interest the indication from the Government that the Dutch Labour Market Fraud (Bogus Schemes) Act (WAS), adopted in July 2015, introduced a joint liability for the payment of wages, from the lead principal contractor to the subcontractor. The Government also indicates that in order to avoid frauds: (i) the WAS introduced the obligation to pay at least the amount of the statutory minimum wage by bank transfer; (ii) real costs could no longer be deducted from the minimum wage – with the exception, under strict conditions, of average nominal premiums for health insurance and housing costs; and (iii) that deductions for housing costs are not authorized when the employer is responsible for providing housing to the workers (as is often the case for migrant workers). The Government adds that on 1 January 2017, corresponding changes were introduced in the Minimum Wage and Minimum Holiday Act. The Committee takes note of this information.

Article 6(1)(a)(iii). No less favorable treatment with regard to accommodation. The Committee notes the Government’s indication, in reply to its previous request for information on compliance with the applicable housing standards for migrant workers, that adequate housing standards are set in the collective agreement of the Federation of Private Employment Agencies (ABU) and the collective agreement of the Dutch Association of Job Placement Services and Private Employment Agencies (NBBU). The Government adds that a number of basic requirements for accommodations have also been included in the Collective Labour Agreement for Temporary Agency Workers and that ABU and NBBU members who work with migrants workers must meet the accommodation requirements set down in this agreement. The Government further indicates that the Foundation for Flexible Housing Standards (SNF) audits on a yearly basis the accommodation offered to migrant workers and that ABU and NBBU review whether their members comply with these accommodation standards. The Committee notes that, in their joint observations, the FNV, the CNV and the VCP indicate that ABU and NBBU do have standards on accommodation but points out that there are no guidelines on the housing price and that migrant workers are often offered zero or few hours contracts, just sufficient to pay for the bed rental and that if they are working more hours the bed rental price increases. The Committee asks the Government to provide information on the price-fixing for the rental of accommodation to migrant workers, as well as on the activities of the foundations and the labour inspectorate to enforce the minimum standards for the accommodation of foreign workers.

Enforcement. The Committee notes that, in their observations, the FNV, the CNV and the VCP highlight that there is a pressing need to enforce existing legislation applicable to the employment of migrant workers and that most infringements relate to the non-payment of minimum wages and unlawful deductions. The Committee notes that, while the FNV, the CNV and the VCP acknowledge that the WAS represents an advancement, they also indicate that in practice, it is difficult for migrant workers to file claims as they depend on their employer for their salary but also, in most cases, for housing. Therefore, the three organizations also call for a deeper cross-border cooperation between labour inspectorates, tax authorities and social insurance funds to combat fraud, such as bogus self-employment schemes. Regarding labour inspection, the Committee takes note of the Government’s indication that the labour inspectorate verifies whether employers comply with the national legislation on labour protection, focusing mainly on higher risk sectors such as agriculture, cleaning, intermediaries and construction. Furthermore, the Committee notes the Government’s indication that the Netherlands Institute for Human Rights (SIM) registered a number of discrimination complaints on the grounds of race and nationality. In this regard, the Committee also refers to its 2017 observation on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No.111), in which it noted the rising trend in the number of cases of racial discrimination reported to the SIM and the Anti-Discrimination Services (ADVs). The Committee requests the Government to provide further information on the activities of the labour inspectorate, such as, for example, information on the number of violations detected and on the sanctions imposed, to ensure that, in practice, migrant workers are not treated less favorably than nationals with regard to the matters covered by the Convention (and, in particular, with regard to remuneration). It also asks the Government to provide information on the number and nature of cases of less favorable treatment of migrant workers dealt with by the Netherlands Institute for Human Rights, the Anti-Discrimination Services, and the courts.