Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Pays-Bas

Convention (n° 81) sur l'inspection du travail, 1947 (Ratification: 1951)
Convention (n° 129) sur l'inspection du travail (agriculture), 1969 (Ratification: 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 and 129 together.

Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (2) of Convention No. 129. Functions of labour inspectors with regard to foreign workers. The Committee previously noted the Government’s indication that labour inspectors are responsible for controlling whether foreign workers hold the required work permit, but not whether they hold the required residence permit. It also noted that labour inspectors are often accompanied by the police department that deals with residency and other issues for foreigners during inspection visits. The Government indicated that the labour inspectorate tries to prevent labour exploitation by controlling compliance with the legal provisions, and by preventing employers from hiring individuals that are not authorized to work in the Netherlands, who are especially vulnerable to exploitation. The Government further explained that there are no immediate consequences for workers when they are illegally employed, and that only employers may be fined under the relevant legal provisions.

The Committee notes the Government’s indication, in reply to the Committee’s request, that where labour inspectors detect non-compliance with regard to the payment of wages, they inform the workers concerned about this violation and the obligation of their employer to pay the outstanding wages. The Government reiterates that workers, including undocumented foreign workers, can bring a claim against their employer for outstanding wages, and that they ultimately can bring their claims before the civil courts but that labour inspectors have no role in this respect. It also notes the Government’s reply to the Committee’s request that no information is available on the number of cases in which foreign workers without the required work permit or residence permit have been granted their due rights. In this respect, the Committee also notes the observations made by the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation for Professionals (VCP) received on 31 August 2017 that with respect to preventing abusive labour conditions for foreign workers, there is a pressing need to enforce the existing regulations. These three unions indicate that migrant workers are the most affected by violations relating to the minimum wage and other labour rights as they are over-represented in at-risk sectors, such as building and construction, transport and agriculture. The unions further indicate that very few cases are actually brought to the courts by foreign workers without the required work permit or residence permit. The trade unions add that while these possibilities exist formally, the protection of undocumented foreign workers lacks substance. In addition, the FNV, CNV and VCP observe 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 recalls its General Survey on labour inspection, 2006, in which it pointed out that the primary duty of labour inspectors is to protect workers and not to enforce immigration law and that any cooperation between the labour inspectorate and immigration authorities should be carried out cautiously keeping in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers, and to improve their working conditions (paragraphs 78 and 161). In this respect, the Committee also recalls that in its General Survey on certain occupational safety and health instruments, 2017, it indicated that 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 the loss of their job or expulsion from the country (paragraph 452). The Committee requests the Government to reply to the comments made by the FNV, CNV and VCP. The Committee requests the Government to provide information on the manner in which it ensures that any inspections performed in conjunction with the police department that deals with residency do not interfere with the main objective of labour inspectors to ensure the protection of workers in accordance with labour inspectors’ primary duties as provided for in Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129.

Article 5(a) and (b) of Convention No. 81 and Articles 12 and 13 of Convention No. 129. Cooperation between the labour inspection services and other government services and public or private institutions engaged in similar activities. 1. Cooperation among the labour inspection services at the Ministry of Social Affairs and Employment, and with inspection services in other ministries. The Committee previously noted the call of the FNV, CNV and VCP for a more uniform line of action in the different operation modes of the various inspectorates. The Committee notes that the Government refers, in reply to the Committee’s request to discuss this issue with the social partners, to the existing cooperation mechanisms between the labour inspection services and to the institutionalization of discussions on labour inspection issues between the labour inspection services of the Ministry and the FNV, including through the setting up a joint working group with representatives of the labour inspectorate and the FNV. The Committee takes note of this information.

2. Activities to promote effective cooperation between labour inspection and private occupational safety and health (OSH) services. 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) noted the lack of access of the labour inspectorate to the information held by private OSH services (for example, on emerging risks or trends), which cover 93 per cent of employees. In this respect, the Committee notes the Government’s reference, in reply to the Committee’ request, to the initiation of discussions between the labour inspectorate and relevant actors, such as medical specialists, the association of occupational physicians (NVAB) and the association of OSH services (OVAL). The Committee requests the Government to continue to provide information on the measures taken to promote effective cooperation between labour inspection and private OSH services (in particular for the exchange of relevant data), and to provide information on the impact of these activities on the work of the labour inspection services.

Article 7(3) of Convention No. 81 and Article 9(3) of Convention No. 129. Training of labour inspectors. The Committee recalls that the abovementioned tripartite committee set up to examine the representation made under article 24 of the ILO Constitution considered that, where specialized technical tasks are assigned to labour inspectors, they should receive additional training. The Committee notes the Government’s indication, in reply to the Committee’s request to consider discussing specific training needs with the Works Council and the social partners, that these training needs are already being regularly discussed with the Works Council; the Government adds that such needs were discussed in the working group set up with representatives of the labour inspectorate and the FNV in 2016, and that they will continue to be discussed in the regular meetings between the labour inspectorate and the FNV in 2017. The Committee takes note of this information.

Article 14 of Convention No. 81 and Article 19 of Convention No. 129. Notification of occupational diseases. The Committee recalls that in its report, the tripartite committee considered that the system for the reporting of cases of occupational disease to the Netherlands Centre for Occupational Diseases (NCvB) (publication by the NCvB of anonymized reports every two years) did not seem to enable the labour inspectorate to intervene rapidly in the specific workplaces concerned, and that the information collected by the NCvB did not appear to be complete as not all cases of occupational diseases appeared to be reported to that Centre.

The Committee notes the reiterated views expressed by the FNV, CNV and VCP that employers should have the obligation to notify occupational diseases to the inspectorate, rather than holding occupational physicians responsible for notification to the NCvB. In this respect, the Committee notes the Government’s indication that while this issue is subject to intense political consideration, it should be recalled that following the introduction of the requirement to report occupational diseases to the NCvB rather than the labour inspectorate, the number of the cases reported had increased significantly. The Committee, with reference to its comment under the Occupational Safety and Health Convention, 1981 (No. 155), notes that the Government also refers to ongoing efforts to increase the notification rate of occupational diseases, including proposed legislative changes to improve reporting by occupational physicians working for occupational health services. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that the labour inspectorate is notified of cases of occupational diseases in a manner that enables the labour inspectorate to carry out its duties effectively, including for example, the intervention in workplaces where necessary (Articles 3(1)(a) and (b), 13, 17 and 18 of Convention No. 81 and Articles 6(1)(a) and (b), 18, 22, 23 and 24 of Convention No. 129) and the publication of annual labour inspection reports containing statistics of cases of occupational disease (Articles 20 and 21(g) of Convention No. 81 and Articles 26 and 27(g) of Convention No. 129).

Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129. Principle of the confidentiality of complaints. The Committee notes the Government’s statement, in reply to its previous request, that in principle, the inspectorate only carries out unannounced inspection visits, and that the only exceptions to this principle are inspections of enterprises which fall under the legislation relating to the control of major hazard installations dealing with dangerous substances, as such inspections are much more complex. Such inspections constituted less than 2 per cent of all inspection visits undertaken in 2014 and 2015, according to the statistics provided by the Government. In this respect, the Committee notes the observations made by the FNV, CNV and VCP that unannounced inspection visits are particularly important with respect to the control of major hazard installations concerning dangerous substances. The Committee requests the Government to reply to these comments. The Committee also requests that any inspections of enterprises relating to the control of major hazard installations concerning dangerous substances, including the extent and nature of prior notice provided, the number of violations detected, and remedial measures undertaken.

Issues specifically concerning labour inspection in agriculture

Articles 26 and 27 of Convention No. 129. Annual report on the work of the labour inspection services in agriculture. The Committee notes that the Government has once again not communicated a report on the labour inspection activities in agriculture (either as a separate report or as part of its general annual report). It notes the information provided by the Government on the number of labour inspections in the agricultural sector, and the Government’s reference to a document communicated with the Government’s report which contains some information on the labour inspection activities in the agricultural sector in 2015 with regard to OSH and undeclared work. Recalling that a considerable number of statistics on labour inspection in agriculture were already provided in previous reports of the Government, the Committee once again requests the Government to publish an annual report on the work of the inspection services in agriculture, or include this information in its general annual report, in accordance with Article 26(1) of the Convention, and to transmit a copy of this annual report to the Office, in accordance with Article 26(3).

Issues specifically concerning the application of Convention No. 81 in the Caribbean Part of the Netherlands

Articles 1–21 of Convention No. 81. Operationalization of a labour inspection system in the Caribbean Part of the Netherlands under the responsibility of the Dutch Ministry of Social Affairs and Employment. The Committee previously noted the Government’s explanations that the Dutch Ministry of Social Affairs and Employment became responsible for ensuring compliance with the legal provisions in the Caribbean Part of the Netherlands. The Committee notes the Government’s indication that the labour inspection authority established in the Caribbean Part of the Netherlands currently employs four labour inspectors, is in the process of ongoing professionalization and forms part of the social affairs and employment unit of the State Agency for Caribbean Netherlands. The Government also indicates that the labour and occupational safety and health laws concerning the Caribbean Part of the Netherlands are currently being reviewed with a view to their modernization and that as of early 2018, annual labour inspection reports as required under Articles 20 and 21 of the Convention will be provided. The Committee encourages the Government to pursue its effort to implement the Convention, and requests it to continue to provide information on the effect given in law and practice to each provision of the Convention in the process of further operationalization of the labour inspectorate, including by indicating the legislative and regulatory provisions relevant to labour inspection. The Committee also requests the Government to provide information on the progress made with the review of the labour legislation, and to provide copies of any legislative texts adopted to this effect.