Labour Inspection (Agriculture) Convention, 1969 (No. 129) - Netherlands (RATIFICATION: 1973)

CMNT_TITLE

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.

Article 5(a) of Convention No. 81 and Article 12 of Convention No. 129. Cooperation between the labour inspection services and private institutions engaged in similar activities. The Committee notes that in reply to its previous comment, the Government indicates that inspectors and external experts (belonging to an OSH service or otherwise) operate independently of each other. The independence of the external expert is safeguarded by the system of certification. The Committee recalls once again 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). Therefore, the Committee urges the Government 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), as well as on the impact of these activities on the work of the labour inspectorate. In this respect, the Committee also requests the Government to provide information on any measures adopted or envisaged following 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), which was noted in the Committee’s previous comment. 

Articles 12(1)(a) and 15(c) of Convention No. 81 and Articles 16(1)(a) and 20(c) of Convention No. 129. Inspections without previous notice. The Committee notes the Government’s reiterated statement, in reply to its previous comment, that in principle, the labour inspectorate only carries out unannounced inspection visits, and that the only exceptions to this principle are inspections of enterprises falling under the legislation relating to the control of major hazards involving dangerous substances. The Government indicates that in enterprises which fall under the legislation relating to the control of major-accidents hazards involving dangerous substances, the labour inspectorate checks whether the safety management system is well described, but also whether it works in concrete situations. Such inspections are extensive, usually take several days and require a great deal of involvement from companies. The Committee also notes the information provided on announced inspection visits in 2019 and 2020 (343 and 597 visits, respectively) and the Government’s indication that the capacity allocated to inspect the above enterprises has significantly increased since 2017. Lastly, it notes the Government’s indication that the labour inspectorate also carries out partially unannounced inspections. The Committee requests the Government to provide information on the meaning of “partially announced inspections” and to continue to provide information on the number of unannounced inspections visits (disaggregated into totally and partially unannounced visits), the number and nature of violations detected and the measures undertaken.

Noting that the FNV and CNV reiterate that unannounced inspection visits are particularly important with respect to the control of major hazards involving dangerous substances, the Committee again requests the Government to provide its comments in this respect.

Article 14 of Convention No. 81 and Article 19 of Convention No. 129. Notification of occupational diseases. With regard to its previous comments on measures adopted or envisaged to ensure that the labour inspectorate is notified of cases of occupational diseases so that it carries out its duties effectively, theCommittee notes the Government’s indication that the Netherlands Centre for Occupational Diseases (NCvB) publishes annual reports on occupational diseases reported by occupational physicians and OSH services and that the labour inspectorate uses this information to establish inspection priorities. In this respect, the Committee notes that the FNV and CNV reiterate their view that employers should have the obligation to notify occupational diseases to the labour inspectorate, rather than holding only occupational physicians and OSH services responsible for notification to the NCvB.

While the Committee notes the more frequent publication of reports on occupational diseases by the NCvB (which is now annual and no longer biennial), it is bound to recall 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) considered that the system for the reporting of cases of occupational diseases did not appear to enable the labour inspectorate to carry out its preventive activities in a satisfactory manner given that the then biennial reports published by the NCvB enabled the inspectorate to take preventive action with regard to specific sectors, but did not enable it to react rapidly and carry out preventive activities or inspections in the specific workplaces concerned (paragraph 151). The Committee therefore requests the Government to continue to examine concrete ways in which the current system for notification of occupational diseases can be improved 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).

The Committee also requests the Government to refer to its comment regarding the application of Article 11(c) (notification of occupational diseases) of Convention No. 155.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Annual report on the work of the labour inspection services. The Committee notes that the labour inspection report of 2020, hyperlinked in the Government’s report and available in Dutch, appears to contain information on most of the subjects listed in Article 21 of Convention No. 81, with the exception of information on the number of workers employed in workplaces liable to inspection and statistics of violations detected. The Committee also notes that, in reply to its previous comment on Articles 26 and 27 of Convention No. 129, the Government indicates that there is no specific annual report for agriculture and that the labour inspection report of 2020 refers to the Agriculture & Green programme, which contains goals, activities and outcomes. The Committee also takes note of the Government’s indication that 400 inspections were carried out in agriculture between 2019 and 2020, most of them in the fields of OSH and fair work. Lastly, the Committee notes that the labour inspection report of 2020 does not appear to contain specific statistics for agriculture on the subjects listed in Article 27 of Convention No. 129. The Committee requests the Government to clarify whether the annual reports on the activities of the labour inspection services contain information on the number of workers employed in workplaces liable to inspection (Article 21(c) of Convention No. 81) and statistics of violations detected (Article 21(e) of Convention No. 81). It also requests the Government to clarify whether the above-mentioned reports contain information for agriculture on all the subjects listed in Article 27 of Convention No. 129.

Furthermore, the Committee requests the Government to refer to its above comment on Article 14 of Convention No. 81 and Article 19 of Convention No. 129 (notification of occupational diseases) as well as to its comment in its observation regarding the application of 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, workload of labour inspectors and time spent on administrative tasks).

CMNT_TITLE

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.

CMNT_TITLE

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.

CMNT_TITLE

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.

The Committee notes the joint 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) on Conventions Nos 81 and 129, received on 31 August 2017, reiterating that no noticeable improvements in the application of the Conventions have occurred following the recommendations in 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). In this respect, the Committee notes that the trade unions emphasize that they appreciate the exchange and work with the labour inspectorate, but that the Government does not provide sufficient means to the labour inspectorate.

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. The Committee recalls that the tripartite committee in its report 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, particularly in enterprises that are not considered to be in high-risk sectors, and in small enterprises. The tripartite committee also encouraged the Government to ensure that administrative tasks entrusted to labour inspectors do not affect the effective discharge of their primary duties, in accordance with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129.

The Committee notes the observations made by the FNV, the CNV and the VCP that only 3.5 per cent of companies in high-risk sectors are inspected (where vulnerable categories like migrant workers are overrepresented), that the labour inspectorate is extremely understaffed and would require at least an additional 100 full-time labour inspectors as a result of having to deal with an extreme workload (due to an increase in the number of occupational accidents, the increasing scope of inspections and the increasing complexity of labour market fraud). The organizations indicate that if the capacity of the labour inspectorate is not substantially increased, there is a significant risk that workers will be exploited.

The Committee notes the information provided in the Government’s report that the number of labour inspections has continued to decrease to 21,138 in 2015 and 18,910 in 2016 (continuing the decreasing trend previously noted, from 39,610 inspections in 2005 to 22,641 in 2014). In this regard, the Committee also notes the Government’s indication that, since 2015, an increased focus has been placed on the social impact of labour inspection activities, with the number of inspections remaining important, but no longer being an objective in itself. The Committee also notes that the Government confirms the reiterated observations made by the FNV, the CNV and the VCP relating to an increased workload as a result of the need of labour inspectors to deal with an increasing number of legal objections and appeals from employers against the decisions and actions of the labour inspectorate. In this respect, the Committee notes the Government’s reiterated indication that the inspectorate intends to reduce the time spent on administrative tasks as much as possible and that inspectors are encouraged to address inefficient work processes and administrative loads and make proposals for the improvement of the inspectorate’s management.

The Committee finally notes the Government’s indication that the capacity of the labour inspectorate was subject to an independent assessment carried out at the request of Parliament in 2016. The Government states that the assessment found that annual plans and multi-annual plans of the inspectorate were well developed and based on sound risk evaluations. The assessment noted that determining whether the inspectorate had sufficient capacity required further information and depended on more explicit goal setting. The Committee once again requests the Government to ensure a sufficient number of labour inspectors and labour inspections to achieve adequate coverage of workplaces liable to inspection for the effective discharge of inspection duties. In this respect, the Committee requests the Government to provide information on any follow-up measures taken following the assessment of the capacity of the labour inspectorate in 2016, as well as any measures taken or contemplated to facilitate labour inspectors’ capacity to fulfil their duties in light of the increasing number of legal objections and appeals from employers.

Noting the Government’s indication that it focuses on the social impact of labour inspection activities, the Committee requests the Government to provide information on the meaning of the term “social impact” in this context as well as on how such impact is measured, and requests it to continue to provide labour inspection statistics (including on the number of labour inspectors, the number of workplaces liable to inspection and the workers employed therein, the number of labour inspections, the number of violations detected and the penalties imposed, as well as the number of industrial accidents and cases of occupational disease). The Committee also once again requests the Government to specify the proportion of time spent by labour inspectors on administrative duties, in relation to the primary functions of labour inspection, and on any concrete steps taken to reduce the time spent on such tasks.

CMNT_TITLE

The Committee notes the observations made by the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation of Professionals (VCP) (formerly the Trade Union Confederation of Middle and Higher Level Employees’ Unions (MHP)), as well as the joint observations made by the Confederation of Netherlands Industry and Employers (VNO–NCW) and the Royal Association of Dutch SME Entrepreneurs (MKB Netherlands), communicated by the Government with its report.

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 report of the committee set up to examine the representation alleging non-observance by the Netherlands of the Labour Inspection Convention, 1947 (No. 81), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Occupational Safety and Health Convention, 1981 (No. 155), made under article 24 of the ILO Constitution by the FNV, the CNV and the VCP was adopted by the Governing Body at its 322nd Session (November 2014).

The Committee refers the Government to its comments under Convention No. 81 concerning the follow-up given to the recommendations in the report of the tripartite committee, which relate to the application of Articles 3(1) and (2) and 10 (workload of labour inspector and time spent on administrative tasks), Article 5(a) (cooperation between the labour inspection services and other government services and public or private institutions engaged in similar activities), Article 7(3) (training of labour inspectors), Articles 10 and 16 (number of labour inspectors and frequency of labour inspections), Article 14 (notification of occupational diseases), Article 15(c) (principle of the confidentiality of complaints). These provisions correspond to Articles 6(1) and (2) and 14; Article 12; Article 9(3); Articles 14 and 21; Article 19; and Article 20(c) of the Convention.

The Committee notes the indications provided by the Government in response to the Committee’s previous request concerning the training of labour inspectors in agriculture (Article 9) and the conclusion of so-called occupational safety and health catalogues in the agricultural sector (Article 13).

Articles 26 and 27. 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 work of the labour inspection services in agriculture (either as a separate report or as part of its general annual report). However, it notes that the Government has provided statistical information in its report communicated to the ILO in 2015 on the number of agricultural workplaces liable to inspection, the number of labour inspections in agriculture, the number of violations detected and penalties imposed. It notes that no information is available on occupational accidents and diseases in the agricultural sector, but that such information was provided by the Government in its report communicated to the ILO in 2014. The Committee requests the Government, once again, to publish and send to the ILO an annual report on the work of the inspection services in agriculture, in accordance with Article 26(1) of the Convention, either as a separate report or as part of its general annual report.

CMNT_TITLE

Referring to its observation, the Committee wishes to raise the following additional points.

Articles 26 and 27 of the Convention. Annual report on the work of the inspection services in agriculture. The Committee notes the Government’s reference to the information on the labour inspection activities in horticulture from 2011–14, in a document attached to the Government’s report. While the Committee notes the statistical information provided by the Government concerning the incidence of occupational accidents in agriculture from 2009–13, it notes that the Government, once again, has not communicated to the ILO an annual report on the work of the inspection services in agriculture containing the information required under Article 27 of the Convention. The Committee therefore asks the Government, once again, to publish and send to the Office an annual report on the work of the inspection services in agriculture, in accordance with Article 26(1) of the Convention, either as a separate report or as part of its general annual report, and containing information on all the subjects listed in Article 27 (a)–(g). The Committee also asks the Government to provide information on any difficulties encountered in this regard.

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

CMNT_TITLE

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 Labour Inspection Convention, 1947 (No. 81), the Convention, 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 application of the Convention with regard to the issues raised in the report in respect of the application of the Convention and Conventions Nos 81 and 155.

The Committee requests that the Government provide information on the issues raised by the tripartite committee for their examination by the Committee at its next session. In this regard, it also refers the Government to the information requested in relation to the Labour Inspection Convention, 1947 (No. 81), and asks it to provide specific information in answer to those requests concerning labour inspection in agriculture, where applicable.

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 the questions dealt with in the above representation correspond, to a large extent, to the questions dealt with in the previous comments made by the Committee. 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.

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

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

CMNT_TITLE

The Committee notes that the Government has sent one report, containing both information on the application of the Labour Inspection Convention, 1947 (No. 81) and the Labour Inspection (Agriculture) Convention, 1969 (No. 129).

Articles 26 and 27 of the Convention. Annual report on the work of the inspection services in agriculture. Further to its previous comments regarding the publication of an annual report on the work of the inspection services in agriculture, the Committee notes the information provided by the Government on: (i) statistics of agricultural undertakings liable to inspection; (ii) the number of persons working therein; (iii) the statistics of inspection visits; (iv) violations and penalties imposed (without indicating the corresponding period of time for these statistics); as well as (v) the number of accidents in agriculture (from June 2009 to June 2010). However, the annual report of the labour inspection, available on the Internet site www.arbeidsinspectie.nl still does not allow an assessment to be made on the specific operation of the labour inspection in agriculture. Therefore, the Committee asks the Government, once again, to publish and send to the ILO an annual report on the work of the inspection services in agriculture, in accordance with Article 26 (1) of the Convention, either as a separate report or as part of its general annual report.

Article 13 of the Convention. Collaboration between the labour inspection services and employers and workers or their organizations. Referring to its comments under the Labour Inspection Convention, 1947 (No. 81), the Committee notes the increased responsibility of the social partners for the implementation of the national occupational safety and health (OSH) policy in various sectors and branches and the conclusion of so-called “catalogues” or Arbocatalogues between employers and workers, which contain agreements on ways and methods of working to achieve and implement the public OSH targets defined by the Government. These “catalogues”, after submission and approval by the labour inspectorate, are considered legally binding and are taken into account by labour inspectors during inspections. The Committee asks the Government to indicate whether any “catalogues” have been concluded in the agriculture sector and, if applicable, to describe the role played by the social partners in the implementation of such “catalogues” in individual workplaces.

Articles 6, 9 and 14 of the Convention. Number and qualifications of labour inspectors in agriculture. According to the Government, while there are no specific labour inspectors only responsible for inspecting agricultural undertakings, approximately 17 inspectors are assigned for the control of illegal employment and wages and three for the control of working conditions in this area. The Committee requests the Government to provide detailed information on any specific training provided to the labour inspectors assigned for the control of agricultural undertakings to enable them to discharge their missions of supervision, information and technical advice in these undertakings; and if applicable, to indicate any improvements in conditions of work in agriculture achieved through the conduct of such training.

Article 19 of the Convention. Notification of cases of occupational disease. Also referring to its comment under the Labour Inspection Convention, 1947 (No. 81), the Committee would like to remind the Government once again that the labour inspectorate in agriculture should be notified of both occupational accidents and cases of occupational disease occurring in the agricultural sector, in accordance with Article 19(1) of the Convention and that, as far as possible, inspectors should be associated with any inquiry on the spot into the causes of the most serious occupational accidents or occupational diseases, particularly of those which affect a number of workers or have fatal consequences (Article 19(2) of the Convention). In this regard, the Committee would like to emphasize that in order to combat deficiencies of employers in notifying cases of occupational disease, informing and sensitizing employers and workers about this matter is an essential means of encouraging compliance with the relevant legal provisions. Labour inspectors could carry out such activities as part of the duties they perform in pursuance of Article 6(1)(b) and Paragraph 14 of the Recommendation No. 129. The Committee urges the Government to take steps aimed at giving effect to Article 19 of the Convention as to the notification to the labour inspectorate of both occupational accidents and cases of occupational disease; and to ensure that relevant statistics are included in the abovementioned annual report on the work of the inspection services in agriculture, as required by Article 27(e) of the Convention. It asks the Government to keep the ILO informed on all progress made in this matter or on any difficulties encountered.

CMNT_TITLE

The Committee notes the Government’s report received in August 2009 in reply to its previous comments, which related to the communication of the annual report on the labour inspection services in agriculture and the limitation of the competence of labour inspectors, an issue which was raised in 2003 by the Netherlands Trade Union Confederation (FNV).

Articles 26 and 27 of the Convention. Extent of the obligation respecting the annual report on the work of the inspection services. With reference to its previous comments, in which it requested the Government to provide the ILO with the annual inspection reports mentioned, but which were not received, the Committee notes that these reports are now published on the Internet site of the labour inspectorate and are therefore accessible to any person interested. The Committee however observes that the presentation of the information published does not allow an assessment to be made of the specific operation of the labour inspection services in agricultural undertakings in the light of the present Convention. Furthermore, the Government has not provided a detailed report under article 22 of the ILO Constitution on the application of the Convention for many years. The Committee therefore reminds the Government of the need to take measures for the inclusion, either in a separate report or as part of its general report on the work of the inspection services (Article 26), information on the laws and regulations relevant to the work of labour inspection in agriculture and on the staff of the labour inspection service in agriculture; statistics of agricultural undertakings liable to inspection and the number of persons working therein (both permanent and seasonal workers); statistics of inspection visits, violations and penalties imposed (clauses (a) to (e) of Article 27).

With reference in particular to statistics of industrial accidents and occupational diseases, including their causes (clauses (f) and (g) of Article 27), in respect of which the Government indicated in its report in 2000 that they are not compiled by the inspectorate but by the Central Bureau of Statistics and the Netherlands Centre for Occupational Diseases, respectively, the Committee recalls that, pursuant to Article 12, paragraph 1, the competent authority shall make appropriate arrangements to promote effective cooperation between the inspection services in agriculture and government services and public or approved institutions which may be engaged in similar activities and that, pursuant to Article 19, paragraph 1, the labour inspectorate in agriculture shall be notified of occupational accidents and cases of occupational disease in the agricultural sector. The Committee therefore once again urges the Government to take measures to promote cooperation between the labour inspectorate and the above institutions with a view to the inclusion of statistics of industrial accidents and of cases of occupational disease in agricultural undertakings, as well as information on their causes, in the annual report required under Articles 26 and 27.

Even if, as the Government indicated in previous reports, statistics on occupational accidents and diseases are used by the labour inspectorate to orient its prevention activities, it is important that this information can also be examined by the social partners in correlation with the other information contained in the annual report so as to offer them the possibility of making proposals for the improvement of the situation.

Article 3, paragraph 1(a). Competence of the labour inspectorate. Further to its previous comments on the subject of the limitation of the competence of the labour inspectorate, an issue raised in 2003 by the FNV, the Committee notes the explanations provided by the Government, according to which labour inspectors are not empowered to monitor the application of the provisions of collective agreements on working conditions, but have been authorized since 2007 to verify compliance by employers with the provisions respecting the national compulsory minimum wage and holiday pay, as periodically revised (these provisions apply to all workers, whether national or foreign, permanent or temporary, although there is a differentiation by age group). According to the Government, the payment of wages below the minimum wage is, however, difficult to detect and prove, although inspectors manage to do so when discharging their principal function, which is to combat fraud, including illegal employment, as well as through targeted inspections. The Committee notes the criteria for the determination of fines imposed on employers who are in violation and notes with interest the information on court rulings handed down in relation to complaints against the fines imposed by the Ministry of Social Affairs and Employment on certain employers in agriculture for various offences, such as failure to declare occupational accidents, the absence of protective equipment or footwear, the lack of safety instructions to prevent the risk of falls when pruning trees which resulted in permanent incapacity, the transport of an employee on an inappropriate machine which caused the death of a worker and the failure to provide information on the employment contract of three workers engaged in an orchard. With reference to its general observation of 2007 on the value of effective cooperation between the labour inspection services and the judicial authorities, it notes in particular with interest that the courts in each case came out in favour of the measures applied by the labour inspectorate. The Committee requests the Government to provide information that is as detailed as possible on the results of inspections of the conditions of work for which labour inspectors in agricultural undertakings are responsible, and the measures taken as a result by the judicial authorities, and to ensure that, as indicated above, relevant statistical data are included separately in the annual labour inspection report.

CMNT_TITLE

Article 26 of the Convention. Communication of the annual inspection report. The Committee notes the reference, in the Government’s report received in the Office on 29 August 2007 and covering the period from June 2005 to June 2007, to the annual inspection reports for 2005 and 2006 in relation to the matters covered by Articles 1–27 of the Convention. As these documents were not received by the Office, the Committee would be grateful if the Government would provide them with its next report.

Articles 3, paragraph 1, and 10. In comments made in 2003, the Netherlands Trade Union Confederation (FNV) deplored, on the one hand, the inadequate numbers of labour inspectors in relation to the duties they are required to perform and, on the other, the limitation of the competence of labour inspectors in relation to wages to checking whether the minimum wage is paid, without inspecting compliance with the provisions of collective agreements in this respect.

In relation to the first issue, the Committee notes the information provided by the Government according to which, as the agricultural sector employs fewer than 2 per cent of the workforce, the creation of specific labour inspection structures is not justified.

With regard to the issue of the fields of competence of the labour inspectorate in relation to wages, the Committee would be grateful if the Government would provide further information in this respect and supply updated information in its report, under Article 3, paragraph 1(a), of the Convention, in relation to the aspects of conditions of work and the protection of workers while engaged in their work which lie within the competence of the labour inspectorate, accompanied by copies of the relevant legal provisions.

CMNT_TITLE

The Committee notes the Government's report and the partial response to its previous comments. The Committee would be grateful if the Government would provide additional information on the following points.

Article 19, paragraph 1. The Government indicates that the 1998 draft text respecting working conditions lays down the obligation to notify occupational accidents to the labour inspectorate only in the event of fatal or serious accidents, the latter being defined as admittance to or treatment in hospital within 24 hours of the accident. Please indicate whether the above text has been adopted and, if so, transmit a copy of the definitive text.

Articles 26 and 27. With regard to accidents which result in leave of absence for three or more days, the Government indicates that the employer is bound to register these accidents within the company, as part of the obligated risk assessment and evaluation. Moreover, the Government points out that in so far as ILO reporting procedures are concerned, a clear distinction is made between those accidents which result in serious injury or death and all other accidents (which result in a leave of absence). As regards accidents which result in serious injury or death, the labour inspectorate is currently collating statistics into a new data bank and statistics for 1998 should be available in 1999. As regards all other accidents, the Government states that a provisional agreement has been concluded with the Central Bureau of Statistics. The Committee trusts that these measures will enable the labour inspectorate to avail itself of the statistics of all occupational accidents with a view to implementing measures to prevent such accidents occurring. The Committee also hopes that statistics pertaining to all occupational accidents will be included in the annual report published by the inspection authority and communicated to the ILO, in accordance with Article 26 of the Convention. Moreover, the Committee again refers to its general observation of 1996 on the Convention, and reiterates its request to the Government to take the necessary measures to include statistics on occupational diseases in the annual report, in compliance with Article 27(g) of the Convention.

CMNT_TITLE

The Committee notes from the annual report on the work of the labour inspectorate in agriculture that a new system of inspection has been introduced which has permitted to carry out inspections in almost every sector of agriculture in 1995, concentrating on the most serious risks relating to physical fatigue, the safety machinery and exposure to toxic substances (including pesticides).

Article 27(g) of the Convention. The Committee notes from the annual report that in 1994 and 1995 there were no reports on occupational diseases in the agricultural industry. Referring also to its general observation under the Convention, the Committee hopes that the new system will help to improve the reporting on occupational diseases. It requests the Government to provide information on developments in this regard.

CMNT_TITLE

The Committee notes the information provided by the Government in reply to its earlier comments.

Article 27(g) of the Convention. Further to its previous comments the Committee notes the information that there are continuing difficulties in compiling more comprehensive statistics on occupational diseases but that efforts are to be made to improve the data. Please provide particulars of further improvements in the situation.

CMNT_TITLE

The Committee notes the information provided in the Government's report.

Article 27 of the Convention. Please describe future developments with respect to the collection of statistics of occupational diseases. Concerning statistics of violations and penalties imposed, the Committee notes the data provided in the report; please include this statistical series in future annual reports on the work of the inspection service in agriculture, as required by the Convention.

CMNT_TITLE

The Committee takes note of the information supplied by the Government in response to its previous direct request.

Article 27 of the Convention. The Committee expresses the hope that future reports on the work of the inspection services in the agricultural sector will also contain statistics of violations and penalties imposed and of occupational diseases (points (e) and (g)).