Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 181) sur les agences d'emploi privées, 1997 - Pays-Bas (Ratification: 1999)

Netherlands (ratification: 1999)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019. 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 18 August 2019 as well as the observations submitted with the Government’s report and with the Government’s supplementary information.

Scope of the Convention.  In its previous direct request, the Committee had referred to the situation of payroll workers (those that have an employment contract with a payroll company but work for another company-the hirer) and had invited the Government to provide a general appreciation on the manner in which the Convention is applied and to indicate the number of workers covered by the measures giving effect to the Convention. The Committee notes the entry into force on 1 January 2020 of the Balanced Labour Market Act (WAB) which contains provisions applicable to private employment agencies and payroll companies. The Committee notes that the WAB introduces a new specific definition for the “payroll agreement” where the payroll employer does not have an “allocation function” in the labour market and the worker is made available exclusively to one client (for example the hiring company). The Committee notes that the statutory regime that applies to temporary employment agencies will no longer be applicable to payroll employees. The WAB establishes that payroll employees will receive at least the same employment conditions and will have the same legal positions as employees who are employed by the hiring company. The law further provides that payroll employees will be entitled, as of 2021 to adequate pension schemes, which can take place in two manners: either they participate to the hirer’s pension scheme or the payroll company has its own pension scheme. The Committee also notes the adoption of the Collective labour agreement for temporary agency workers for the period 2019-2021 (ABU). The Committee also notes that the Collective labour agreement for temporary agency workers for the period 2019-2021 does not apply to private employment agencies that provide workers in the construction or infrastructure industry. Furthermore, the Committee understands that payroll employees will in principle no longer be covered by collective labour agreements for employment agencies (ABU) and the Netherlands Association of Intermediary Organisations and Private Employment Agencies (NBBU). However, they will be covered by the labour agreement and other labour conditions in force in the hirer company where the employee works. The Committee notes that in their observation, the FNV, the CNV and the VCP refer to the use of agency workers to cut costs and to the fact that agency workers are on temporary or zero hour contracts. They also indicate that temporary agents are often misinformed and are victims of abuse. The Federations further refer to high discrepancies in labour protection affecting temporary agency workers and to the unprecedented proliferation of temporary work agencies: 10000 new agencies have been created since 1998. The Committee requests the Government to provide further details concerning the implementation of the Balanced Labour Market Act (WAB) on both payroll companies and private employment agencies and the manner in which it affects the application of the Convention. The Committee requests the Government to indicate whether and how the issues highlighted by the FNV, the CNV and the VCP have been addressed by the WAB. The Committee also requests the Government to provide detailed information on the legal regime applicable to private employment agencies and to payroll companies. The Government is also requested to indicate if there are specific regulations (including collective labour agreements) for private employment agencies operating in specific economic sectors such as construction or the infrastructure industry and provide statistical information on the number of workers covered by the Convention. The Committee requests the Government to provide available information on the impact of the COVID-19 outbreak and the measures taken to mitigate them on the implementation of the WAB and on the operation of private employment agencies.

COVID-19 pandemic and measures taken to mitigate its negative impact. Temporary agency workers. The Committee notes the Government’s information concerning the adoption of the Temporary Bridging measure for Flex Workers (TOFA) that have been laid off after 1 March due to the COVID-19 outbreak, with a substantial loss of income (more than 50 per cent in April compared to February and who cannot claim other benefits). The Government indicates that the scheme consists of a one-off gross payment of 1,650 euro in total for the period March, April and May 2020. The Committee notes, however, that in their additional information, the Federations refer to the large number of workers with flexible contracts (temporary agency workers and workers with a fixed term contract) who have lost their jobs due to the COVID-19 crisis and that only enjoy a very limited duration of their unemployment insurance (WW). This means that for a large number of workers who lost their jobs during the first 2 months of the crisis, the insurance period (which is only three months for workers who do not have a long employment history) has already expired. Finding another job in the current crisis is difficult, if not impossible. The Federations have requested an extension period for these workers without success. The Committee also notes that in their additional information, the FNV, the CNV and the VCP indicate that temporary agencies are the main employers of migrant workers and that these categories of workers are facing a particularly difficult situation due to the COVID-19 outbreak with respect to social distancing and personal protective equipment (PPE) in housing and transportation. The Committee requests the Government to provide detailed information, including statistics, on the situation of temporary agency workers, including migrant workers, due to the COVID-19 crisis as well as on any additional support measures that would benefit them.

Article 6. Protection of personal data.  The Government provides information concerning the activities carried out by the Data protection Agency which supervises compliance with the legal rules for the protection of personal data. The Agency also advises on new regulations and provides information about privacy legislation. It uses a large part of the capacity to investigate compliance with the law. The Agency selects annual themes on which to carry out these examinations. For example, the Data Protection Agency investigated two large temporary employment agencies and summoned them to end the violations of the legal rules for the protection of personal data. The Committee takes note of this information.

Articles 10 and 14. Supervision of the operation of private employment agencies.  The Committee had previously requested 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. The Committee notes in this regard, that the FNV, the CNV and the VCP indicate that the unions are not sufficiently informed about ongoing procedures, infringements detected, and sanctions imposed. They highlight that inspection only focus on the payment of minimum wages and not on the labour conditions agreed in the collective agreements. Furthermore, they highlight that the inspection services are understaffed to carry out investigations based on any complaint concerning infringement of collective agreements or any legislation related to the posting of workers, mainly the Posting of Workers by Intermediaries Act (WAADI). The Committee notes that the Government refers to the report by an Interim Intervention Team to Tackle misconducts in temporary employment agencies. The Inspectorate (SZW), the Tax and Customs Administration and the Public prosecution service participated in this report. The Conclusions of the report refer to abuses by private employment agencies related mainly to the retention of wages and withholding of housing costs from the wage of migrant workers. The Government also provides a mid-term report on temporary employment agencies from the Labour Inspectorate (SZW). The Committee notes that, according to this report, there are approximately 12,000 companies registered with the Chamber of Commerce as temporary employment agencies. This concerns also lending agencies and payroll companies. The Inspectorate estimates that there are 43,000 companies operating in the temporary industry. However, according to the report, there are also numerous unregistered companies. The Government further indicates that extra resources have been allocated to the SZW to ensure enforcement. In this regard, €50 million per year will be made available until 2021 concerning fraudulent practices. The Government also refers to the Sham Constructions Act (WAS) adopted in 2015, which aims to contribute to creating a level playing field in the labour market, preventing unfair competition between companies, strengthening the legal position of employees and guaranteeing compensation for employees, in accordance with the legislation, collective agreements and individual employment contracts. The Government indicates that in application of the WAS, the SZW conducted 862 investigations in the period going from 1 January 2014 to 1 May 2018. The investigations concerned various sectors, such as construction, cleaning, hospitality, retail and the temporary employment sector. The Government further indicates that social partners may submit requests for investigations to the SZW concerning non-implementation of collective labour agreements in case of non-compliance. The Committee requests the Government to continue to provide information on the complaints filed against private employment agencies concerning issues related to the application of the Convention, the institutions dealing with these complaints and the sanctions imposed in case of infringement to the laws and regulations. The Government is also requested to provide information on the measures taken to ensure that private employment agencies employing migrant workers duly respect and apply labour law.

Article 13. Cooperation between the public authorities and private employment agencies.  The Government refers to the intensive and longstanding cooperation between the public employment service (UWV) and private employment agencies in assisting jobseekers. In 2019, the UWV and the ABU signed a renewed joint venture agreement that both extends and updates the cooperation and commitments between both parties. The 2019 joint venture agreement focuses on an increase of the efforts on cooperation between UWV and ABU-members at the regional level. ABU and UWV are also looking to further enhance the sharing of knowledge and experience on labour-related public-private cooperation between UWV and ABU at national and European level. The joint venture will lead to further efforts to increase the visibility and interoperability of the various information sources related to unemployed persons. Lastly, the aim of UWV and ABU is to structurally share labour market information as well as expertise on the mediation between employers and jobseekers. The Committee invites the Government to continue to provide information on any measure taken to foster cooperation between the public employment service and private employment agencies. The Committee requests again 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. The Government is also requested to provide information on any specific measure of cooperation taken to promote employment in the framework of the COVID-19 outbreak.