Observation (CEACR) - adoptée 2014, publiée 104ème session CIT (2015)

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

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

The Committee notes that the Governing Body at its 322nd Session, in November 2014, approved the report of the tripartite committee set up to examine the representation made by the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation for Professionals (VCP) (formerly the Trade Union Confederation of Middle and Higher Level Employees’ Unions (MHP)) under article 24 of the ILO Constitution, alleging non-observance by the Netherlands of the Convention, the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Occupational Safety and Health Convention, 1981 (No. 155) (GB.322/INS/13/7). The Governing Body entrusted the Committee to follow up on the issues raised in the report in respect of the application of the Convention and Conventions Nos 129 and 155.

The Committee asks therefore that the Government provide information on the issues raised by the tripartite committee for their examination by the Committee at its next session, in particular on:

• (i) the steps taken to ensure that administrative tasks entrusted to labour inspectors do not affect the effective discharge of their primary duties. In this regard, the Committee would be grateful if the Government would provide information on the proportion of time spent by labour inspectors on administrative duties, in relation to the primary functions of labour inspection (Article 3(2) of the Convention);
• (ii) the efforts made by the Government to improve cooperation among the operational directorates of the Ministry of Social Affairs and Employment and with the inspection services in other ministries; and the activities undertaken to promote effective cooperation between labour inspection and private occupational safety and health (OSH) services, in particular for the exchange of relevant data (Article 5(a));
• (iii) the provision of additional training where more specialized tasks are assigned to labour inspectors. In this regard, the Committee would be grateful if the Government would provide information on the training provided to labour inspectors in the areas of psychosocial stress, chemical substances, nano-particles in the workplace and the evaluation of risk assessments (frequency, duration and number of participants), in so far as labour inspectors are tasked with duties in this respect (Article 7(3));
• (iv) the measures taken to ensure that the number of labour inspectors and the frequency of labour inspections are sufficient to ensure the effective discharge of inspection duties and compliance with the respective legal provisions in all workplaces, particularly in enterprises that are not considered to be in high-risk sectors and in small enterprises. Please provide relevant statistics in this regard, including on the number of workplaces liable to inspection and the number of workplaces covered by inspection visits (please specify the corresponding number of high-risk workplaces, workplaces not considered to be high-risk and small enterprises); and statistics on violations detected and penalties imposed (including information on the legal provisions to which they relate, in particular the Working Conditions Act (risk assessments and organization of OSH expert assistance) and statistics on industrial accidents and occupational diseases (Articles 10 and 16);
• (v) the outcome of the examination of the ways in which the system for the notification of occupational diseases can be improved and, if applicable, the actions taken in this regard (Article 14);
• (vi) the number of unannounced labour inspection visits, in relation to the overall number of other inspection visits, as one of the means to ensure the confidentiality of complaints (Article 15(c)).

The Committee notes the information in the Government’s report received on 29 August 2014, in reply to the Committee’s previous comments. The Committee notes that most of the previous comments made by the Committee are related to the questions dealt with in the above representation. The Committee will therefore examine the relevant information provided in the Government’s report at its next session, together with the information provided by the Government in response to the issues raised by the tripartite committee.

Other questions

Article 3(1) and (2). Additional functions entrusted to labour inspectors. The Committee previously noted from the annual report on the work of the labour inspectorate that about one third of the labour inspections carried out in 2010 related to the control of illegal employment (that is, the Foreign National Employment Act and the Minimum Wage and Holiday Allowance Act).

The Committee notes the Government’s indication that since two years ago, labour inspectors are also entrusted with controlling whether foreign workers hold the required work permits, but that they have no competence regarding the stay of undocumented foreign workers. It further notes the Government’s indication that labour inspectors are entrusted with controlling compliance with the legal provisions in the areas of minimum wages, working hours and OSH, irrespective of whether foreign workers are undocumented. It also notes that the Government states that the labour inspectorate and the Immigration and Naturalization Service (IND) have separate responsibilities, and do not conduct joint inspection visits. However, the Committee also notes from information available on the website of the labour inspectorate that labour inspectors are often accompanied by the (foreigners) police during inspection visits.

It finally notes the Government’s indications that undocumented foreign workers without the required residence permits can claim their outstanding wages before the civil courts, just as other workers. Referring once again to its indications, in paragraph 78 of its 2006 General Survey on labour inspection, that the primary duty of labour inspectors is to protect workers and not to enforce immigration law, the Committee asks that the Government indicate the measures taken or envisaged to ensure that the functions of verifying the legality of employment do not interfere with the effective discharge of the primary duties of the labour inspectors relating to the observance of workers’ rights, and do not prejudice the relationship of trust with employers and workers.

It asks the Government to provide information on the applicable procedure and the legal and practical consequences for foreign workers, where they are found to be working without the required work permit. It also once again asks that the Government provide information on action undertaken by the labour inspection services in the enforcement of employers’ obligations with regard to the statutory rights of undocumented foreign workers for the period of their effective employment relationship, such as the payment of wages and other benefits, especially in cases where they are expelled from the country.

[The Government is asked to reply in detail to the present comments in 2015.]