Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 81) sur l'inspection du travail, 1947 - Pays-Bas (Ratification: 1951)

The Committee takes note of the observations made by the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Confederation of Middle and Higher Level Employees’ Unions (MHP) in a communication dated 31 August 2011 which was communicated to the Government on 19 September 2011. It notes that in their comments, the three trade union organizations reiterate to a large extent observations already made in their communications of September and August 2007 with regard to the impact of the revised Working Conditions Act, 2007 (and the related Working Conditions Decree and Working Conditions Regulations) on the functioning of the labour inspection system. The Committee requests the Government to make any observation it deems appropriate in relation to these comments.

Articles 3, 5, 7, 9, 10, 13 and 16 of the Convention. Functioning of the labour inspection system in the area of occupational safety and health (OSH). The Committee notes the information contained in the annual report on the work of the labour inspectorate to the effect that between 2008 and 2010, the number of labour inspectors was further reduced from 465 to 431 and that the number of inspection visits decreased from 35,000 to 31,849. It notes that according to the previous and current comments of the FNV, CNV and MHP, the chance for a company to be visited by an inspector is only once in every 30 years on average and that one inspector corresponds to about 30,000 workers.

The Committee notes that, in the view of the Government, this reduction has to be seen in the context of the new national occupational safety and health policy, introduced after the entry into force of the revised Working Conditions Act in 2007; this policy has resulted in efficiency gains in the deployment of inspectors and in very good conditions for workers (corroborated, according to the Government, by surveys affirming the high level of worker satisfaction, as well as a risk level of occupational accidents that is below the European average).

In the opinion of the Government, the differentiation made by the new OSH policy between the “public and private domains” allows for “self-activation”, meaning that the social partners have the opportunity to find appropriate ways of complying with targets in the various sectors, thus enabling labour inspectors to focus on sectors with substantial working environment problems. General rules and targets for the protection of workers are laid down by the Government in the “public domain”, while in the “private domain” the social partners agree on ways and methods to achieve and implement these public targets by means of “catalogues (or Arbocatalogues)” which, once approved by the labour inspectorate, are legally binding and taken into account by labour inspectors during inspections. Over 150 “catalogues” have been concluded between employers and workers, in the framework of a Government subsidy scheme covering over half of the workers in the country, and the social partners are taking measures to implement the “catalogues” in individual workplaces.

The Government adds that the function of providing technical information and advice to employers and workers on means of complying with legal provisions, in the context of the new national occupational health and safety (OSH) policy, is largely assumed by private occupational safety and health services (the so-called Arbodiensten), which provide advice on working conditions and occupational safety and health policy to companies in a way which is adapted to their specific situation. The Government further indicates that Arbodienst enterprises cover about 92 per cent of the workforce, are independent and required to comply with certain legal obligations, including sufficient expertise in industrial medicine, safety and hygiene and organizational science and, according to the Government, they help companies to convert legal commitments and scientific views into specific measures.

The Committee also notes the Government’s indication that measures are to be adopted in 2011 to help employers cope with the new requirements of the so-called “ARIE” Regulations on working with dangerous substances, which the Confederation of Netherlands Industry and Employers (VNO–NCW) had described in the past as too complex and creating a heavy administrative burden. These measures encompass the design and dissemination of relevant education as well as information measures taken following the feasibility studies carried out by the National Institute for Public Health and the Environment (RIVM) as well as tailor-made consultation and advice in individual workplaces, by means of: (i) the system of Arbodiensten; and (ii) several private institutions which provide information on OSH, training for employees, certification and monitoring of workplaces and machinery.

The Committee recalls that according to Article 10 of the Convention, the number of labour inspectors should be sufficient to secure the effective discharge of the duties of the inspectorate in the light of the number of the workplaces liable to inspection, the number of workers employed therein, the number and complexity of the legal provisions to be enforced as well as the material means placed at the disposal of the inspectors and the practical conditions under which visits of inspection must be carried out in order to be effective. Moreover, according to Article 16, workplaces should be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions.

The Committee would be grateful if the Government would provide information on:

• (i) the impact of the new OSH policy on levels of compliance with labour law and the prevention of industrial accidents and cases of occupational disease including psychosocial aspects, which constitute one of the priorities mentioned in the Government’s previous report (Articles 3(1)(a) and (b));
• (ii) the evaluation of the needs of the labour inspection system in terms of human resources in the light of the number of workplaces liable to inspection and the number of workers employed therein in the context of the new OSH policy (Article 10);
• (iii) the powers given to the labour inspectors with a view to remedying defects observed in plant, layout or working methods which they may have reasonable cause to believe constitute a threat to the health and safety of the workers, including measures with immediate executory force in the event of imminent danger to the health and safety of the workers (Article 13);
• (iv) the impact of the collaboration with the social partners in the implementation of the “catalogues” on labour law compliance in workplaces in various sectors and branches (Article 5(b));
• (v) the operation in practice of the system of “Arbodiensten”, in particular, the procedure for the authorization of these enterprises, the manner in which they are supervised by the labour inspectorate, their functioning (scope of activity, safeguards of independence, whether the use of their services is voluntary or statutorily mandated, the costs associated with their services, their availability to small- and medium-enterprises, etc.) as well as their impact on compliance with labour legislation in individual workplaces (Articles 5(a) and 9);
• (vi) the measures adopted to facilitate compliance with the so-called “ARIE” Regulations and their impact (Articles 3(1)(b) and 5(b));
• (vii) the implementation of a pilot project mentioned in the Government’s report which includes training to inspectors with respect to nanotechnology risks (Articles 3(1)(b) and 7(3)).

Articles 3(1) and (2). Additional functions entrusted to labour inspectors. The Committee notes from the annual report on the work of the labour inspectorate that among 31,849 inspection visits in 2010, 10,500 related to the control of illegal employment (i.e. the Act on Employment of Foreigners Workers (WAV) and the Minimum Wage and Holiday Allowance Act (WML)). It understands that among the current inspectors, 171 have been charged with the control of illegal employment and wages in collaboration with the Social Security Investigation and Information Service (SIOD), a special department working together with the police and tax authorities. The Committee further notes that inspections were targeted at sectors where the risk of illegal employment was suspected to be very high. Such inspections were facilitated through research and joint actions with the Immigration and Naturalization Service (IND), the Employee Insurance Agency (UWV), the Tax Department, the Social Insurance Bank (SVB), the municipalities, the SIOD and the police, as well as through data exchange between the IND and the UWV.

The Committee would like to recall that the primary role of the labour inspectorate, pursuant to Article 3(1), is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers and to supply technical information and advice; any further duties which may be entrusted to labour inspectors should not be such as to interfere with the effective discharge of the primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers (paragraph 2 of the same Article). The Committee notes that, in view of the diminishing human resources available to the inspection services, calling upon inspectors to monitor the legality of the employment relationship will necessarily entail a proportionate reduction in inspection of conditions of work. With regard to workers from third countries (non-EU) in particular, the Committee recalls that according to paragraph 78 of its 2006 General Survey on labour inspection, the primary duty of labour inspectors should be to protect workers and not to enforce immigration law. The function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers if it is to be compatible with the objective of labour inspection.

The Committee requests the Government to specify the impact of the activities carried out by the labour inspectorate in the area of illegal employment on the enforcement of legal provisions relating to conditions of work and the protection of workers including the outcomes of administrative decisions, court rulings, etc.

The Committee also asks the Government to specify the role of the labour inspectors in the framework of joint actions with the IND and the police and to indicate the manner in which the enforcement of employers’ obligations with regard to the rights of undocumented foreign workers is ensured for the period of their effective employment relationship, especially in cases where such workers are expelled from the country.

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