Observación (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Países Bajos

Convenio sobre la inspección del trabajo, 1947 (núm. 81) (Ratificación : 1951)
Convenio sobre la inspección del trabajo (agricultura), 1969 (núm. 129) (Ratificación : 1973)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos. 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee notes the joint observations of the Netherlands Trade Union Confederation (FNV) and the National Federation of Christian Trade Unions (CNV) on Convention No. 81, received in 2021, which reiterate the observations of the FNV, CNV and the Trade Union Federation for Professionals (VCP) received in 2017 and refer to the additional matters addressed below.

Articles 3, 10 and 16 of Convention No. 81 and Articles 6, 14 and 21 of Convention No. 129. Number of labour inspectors and the frequency of labour inspections to ensure the effective discharge of inspection duties. Workload of labour inspectors. Time spent on administrative tasks. Further to its previous comment on ensuring a sufficient number of labour inspectors and inspections to achieve adequate coverage of workplaces liable to inspection, the Committee notes that the Government indicates in its report that: (i) given the lack of information on the capacity of the labour inspectorate, in 2017 the inspectorate started with the Inspection Control Framework (ICF), which allows it to focus on certain risks or subjects, determine what it requires in terms of capacity (financially) to cover the chosen focus, as well as to use risk-based supervision and to be result-oriented; (ii) also in 2017, the coalitions parties in the Parliament made 50 million euros per year progressively available for strengthening the enforcement chain of the labour inspectorate in accordance with the ICF; (iii) between 2018 and 2020, the available resources of the labour inspectorate were mostly used for the recruitment, selection and supervision of new labour inspectors and investigators; (iv) in 2019 and 2020, the labour inspectorate had 1,335 and 1,348 full-time labour inspectors, respectively, and it is projected to grow to 1,541 full-time labour inspectors by the end of 2022 and to be at full capacity in 2023; and (v) in 2019 and 2020, 11,744 and 15,462 inspection visits were carried out, respectively. The Committee also notes the Government’s indication that the labour inspectorate currently pursues four goals under the ICF, namely: (a) restoring the balance between reactive investigations and active prevention-oriented inspections in the field of OSH; (b) increasing the proportion of joint inspections ofcompanies falling under the legislation relating to the control of major hazards involving dangerous substances; (c) increasing the extent to which the labour inspectorate works in an information-driven way; and (d) increasing the inspection coverage of fair working conditions. The Committee requests the Government to provide detailed information on the implementation of the Inspection Control Framework, the achievement of each of its four goals and its concrete impact on the work of the labour inspectorate, including on the inspectorate’s capacity to carry out its primary functions as set forth in Article 3(1) of Convention 81 and Article 6(1) of Convention 129, and to inspect workplaces with the necessary frequency and thoroughness. Noting the above-mentioned increase in the number of labour inspectors, it requests the Government to continue to provide information on the total number of labour inspectors, inspection visits, workplaces liable to inspection and workers employed therein, violations detected and penalties imposed, as well as on the number of industrial accidents and occupational diseases. The Committee requests the Government to specify in the requested information the statistics relating to the agricultural sector.

Furthermore, the Committee notes the information provided by the Government in reply to its previous comment on the meaning of the term “social impact” of the work of the labour inspectorate, which implies that the labour inspectorate tries to enforce regulations at workplaces where the risks are the highest and that by eliminating the highest risks it makes sure that the main harm is taken care of. In this regard, the Committee recalls that the report of the tripartite committee adopted by the Governing Body at its 322nd Session (November 2014) concerning the representation made under article 24 of the ILO Constitution relating to Conventions Nos. 81 and 129 and the Occupational Safety and Health Convention, 1981 (No. 155) requested the Government to ensure that the number and frequency of labour inspections is sufficient to ensure the effective discharge of inspection duties and compliance with the respective legal provisions in all workplaces, including enterprises that are not considered to be in high-risk sectors and small enterprises (paragraph 137). The Committee requests the Government to provide information on the measures adopted or envisaged to ensure that non-high-risk workplaces and small enterprises are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions.

Lastly, with regard to the administrative tasks entrusted to labour inspectors, the Committee takes note of the Government’s information indicating that multiple measures have been taken to facilitate labour inspectors in administrative tasks, such as the provision of standardized formats for letters and fine reports, the deployment of senior inspectors as peer review of, or support for, other inspectors in the drafting of reports, as well as the establishment of an inspection support desk (“Inspectieondersteuning”) which assists inspectors in the administrative preparation of inspection projects by refining information, conducting preliminary research and selecting the correct addresses of companies to be inspected. The Government also indicates that the adoption of measures to facilitate the work of inspectors will continue to be one of the focuses of the labour inspectorate. The Committee takes note of the information provided and it requests once again the Government to specify the proportion of time spent by labour inspectors on administrative tasks, in relation to the primary functions of labour inspection.

Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (3) of Convention No. 129. Functions of labour inspectors with regard to foreign workers. Further to its previous comment on inspections performed in conjunction with the police department that deals with residency issues, the Committee notes that the Government indicates in its report that when working jointly with the police department, while the police investigates whether there are migrants in an irregular situation, the labour inspectorate is concerned with compliance of the labour legislation with respect to migrant workers, who are entitled to fair work and wages irrespective of their legal status. The Committee recalls that the involvement of inspection staff in joint operations with the police is not conducive to the relationship of trust that it is essential to enlisting the cooperation of employers and workers. Workers in a vulnerable situation may not be willing to cooperate with the labour inspection services if they fear negative consequences as a result of inspection activities, such as being fined, losing their job or being expelled from the country. The Committee requests the Government to provide further information on the concrete actions undertaken by labour inspectors in cases where, in the discharge of their duties, they encounter violations of the legal provisions related to conditions of work and protection of wages for migrant workers, including those in an irregular situation, specifying how it ensures that these workers are actually granted their statutory rights, such as the payment of unpaid wages, social security benefits or the conclusion of an employment contract, and further specifying the amounts recovered and the number of contracts concluded in this respect.

The Committee notes that the FNV and CNV reiterate that migrant workers are especially vulnerable to abusive labour conditions and are very critical of the results of the work of the labour inspectorate in this respect, indicating that: (a) cases (i.e. accidents at work, physical abuse and unpaid wages) take so long to be inspected that, in the meantime, the workers concerned may be dismissed, feel victimized or are discouraged from filing again a complaint; (b) obvious infringements are not inspected, nor are they fined; and (c) inspections operate in a very fragmented manner, with the result that cases are not coordinated. The Committee requests the Government to provide detailed comments in this respect.

The Committee notes that the FNV and CNV also reiterate that very few cases of non-compliance are actually brought to the courts by migrant workers without the required work permit or residence permit and that while these possibilities exist formally, the protection of undocumented migrant workers lacks substance. Moreover, the FNC and CNV state that the number of prosecuted cases of labour exploitation and convicted offenders decreases every year and therefore the prosecution of such cases is lagging behind and labour exploitation often remains unpunished in the Netherlands. In this respect, the Committee notes the Government’s indication that several complaints are filed with the labour inspectorate on cases that may involve labour exploitation, but that only a few are brought to court because most cases either do not have the characteristics of labour exploitation or do not meet the high burden of proof established in this respect, although in such cases there may be a serious detriment to workers by employers that can be examined and investigated under administrative law. The Committee requests the Government to provide information on the number and outcome of judicial proceedings on all matters, including labour exploitation, resulting from inspections carried out or actions taken by labour inspectors.

Lastly, the Committee also notes that the FNVandCNV indicate that the aforementioned vulnerability of migrant workers is sustained by the role of temporary employment agencies, which number 14,000 companies (22,000 if payrolling enterprises are included) and actively recruit migrant workers in the Netherlands, sometimes under deceptive pretentions. The FNV and CNV also indicate that migrant workers have become a business model for temporary employment agencies as well as for housing facilitators and transporting companies. In this regard, the Committee notes the Government’s indication that an advisory team was set up to advise the Cabinet on the protection of migrant workers and actions to be taken with respect to them, including combating labour exploitation, and that in October 2020 this team recommended increasing the capacity of the labour inspectorate in order to strengthen supervision in the temporary employment agency sector. The Government states that if a new Cabinet decides to consider such a recommendation, the labour inspection’s coverage of the temporary employment agency sector would increase and thus also the likelihood of detection of malpractices. The Committee requests the Government to provide information on the measures adopted or envisaged to strengthen labour inspection in temporary employment agencies, including the follow-up measures taken following the recommendation of the Cabinet's advisory team in 2020 on this matter.

Noting that the FNV and CNV reiterate that the labour inspectorate is neither authorized nor sufficiently equipped to ensure the application of the collective agreements in relation to temporary posted workers, the Committee again requests the Government to provide its comments in this respect.

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