Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152) - Netherlands (RATIFICATION: 1998)

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The Committee observes that the Netherlands Trade Union Confederation (FNV) submitted observations in August 2017 indicating that, although the law gave effect to the Convention, in practice its implementation could be improved by addressing certain matters the Committee refers to hereunder.

Article 38(2) of the Convention. Minimum age limit for workers operating lifting appliances. In previous comments, the Committee had requested the Government to indicate the measures taken, in law and in practice, to ensure that young persons above the age of 16 and below the age of 18 who can operate a lifting or other cargo-handling appliance are persons under training, as required by this Article of the Convention. The Committee notes that, in its latest report, the Government refers to sections 1.36, 1.37 and 7.18 of the Working Conditions Decree, 1997, as giving effect to this Article of the Convention. The Government states that section 1.36 of the Decree obliges the employer to carry out a specific assessment of the risks and take the necessary precautions if persons under 18 years of age are involved. It adds that the supervision of young workers operating cranes is always for training purposes and that in the event that a young worker is found to be operating cranes without supervision during an inspection, a fine would be imposed on the employer.

In this regard, the Committee notes the allegations of the FNV pointing out that although the Working Conditions Decree, 1997, provides that young workers can only perform lifting or other load handling work under training and that the mandatory guidance of an experienced colleague is required, in practice in many port terminals, too many young workers, without sufficient training, operate lifting machines without the proper supervision of an experienced worker. According to the FNV, although there should be a supervisor on each shift, in practice, the latter mainly carries out his own activities and does not supervise the young trainees. Finally, the FNV points out that the lack of expertise of the labour inspectorate on the specificities of the lifting work in ports is detrimental to the adequate protection of young trainees under the age of 18 operating a lifting or other cargo-handling appliance. The Committee requests the Government to indicate the measures taken or envisaged to ensure that young trainees above the age of 16 and under the age of 18 operate lifting or other cargo-handling appliances under appropriate supervision, as required by the law and this Article of the Convention. In this regard, the Committee requests the Government to provide any available record of the labour inspectorate on the number of contraventions reported and the sanctions imposed.

Part V of the report form. Application in practice. The Committee notes the statistical data provided by the Government according to which, between January 2017 and December 2021, around 100 inspections were carried out on dock work, 60 of which took place after an accident occurred. The Government also reports five fatalities among the accidents reported. Furthermore, the Committee takes note of the observations of the FNV in relation to the statistics provided in 2017 by the Government and whereby the union regrets that fatal accidents are not systematically investigated by the labour inspectorate and that there is a lack of transparency on the decisions to investigate. According to the union, this is illustrative of the lack of knowledge of the specificities of dock work by the labour inspectorate and the Government should take corrective measures in this regard. The Committee requests the Government to continue to provide detailed information on the practical application of the Convention, including statistical information on the number of occupational accidents, the number of workers covered by the legislation, as well as the number and nature of violations reported, and the measures taken in this regard. In addition, the Committee requests the Government to indicate any measures taken or envisaged to address the concerns expressed by the FNV in relation to the need to train the labour inspectorate on the specificities of the work performed in port terminals and to ensure that, when fatal accidents occur, they are investigated in a more transparent manner and their outcome duly reported.

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Article 38(2) of the Convention. Minimum age limit for workers operating lifting appliances. The Committee notes the reference in the Government’s latest report to section 7:18(3) of the Working Conditions Decree 1997, which states that hoisting and lifting machines should be operated by persons having specific expertise to this end. In addition, section 1:37 ensures that young employees carrying out activities must be adequately and expertly supervised and that in cases where this expert supervision cannot be organized in such a manner to prevent specific hazards, the work should not be carried out by young employees – all work by persons under the age of 16 being prohibited by section 3:2(1) of the Working Time Act. Recalling that Article 38(2) states that a lifting appliance or other cargo-handling appliance shall be operated only by a person who is at least 18 years of age and who possesses the necessary aptitudes and experience or a person under training who is properly supervised, the Committee requests the Government to indicate the measures taken or envisaged, in law and in practice, to ensure that young persons above the age of 16 and below the age of 18 who can operate a lifting or other cargo-handling appliance are persons under training.

Part V of the report form. Application in practice. The Government has indicated that during the period between 1 June 2012 and 1 May 2012, there have been 31 accidents as a result of dock work of which two were fatal. The Government further indicates that to date there has been no specific impact from the recent shift in the Government’s role on occupational safety and health, and that an inspection project is currently under way focusing on the risk of getting struck by moving vehicles on docks. The Committee would be grateful to the Government to keep the ILO informed of the inspection results from this project and to continue to provide information on the practical application of the Convention.

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The Committee notes the comprehensive information provided by the Government in its latest report in response to the Committee’s previous comments. The Committee notes that the Government has provided information on the provisions of national legislation and regulations that give effect to Articles 1, 3(e)–(h), 22(2)–(4), 25(3), 32(3)–(4) and 37(1)–(2) of the Convention. The Committee further notes that the Government has indicated that no exemptions, as permitted by Article 2, have been granted. The Committee asks the Government to keep it informed with regard to any exemptions that may be granted under Article 2 of the Convention, and to continue to provide information on legislative measures undertaken with regard to the Convention.

Article 38(2) of the Convention. The restriction on the operation of lifting or other cargo‑handling appliances to persons at least 18 years of age, or to persons under training who are properly supervised. The Committee notes the information provided by the Government which indicates that section 8.5 of the Working Conditions Act, 1998 (WCA) states that in cases where workers are under the age of 18, employers must, when carrying out the activities required under the preceding paragraphs, take particular account of the fact that these workers are, because of their age, lacking in work experience and not yet physically or mentally fully mature. Recalling that the provisions of Article 38(2) state that a lifting appliance or other cargo-handling appliance shall be operated only by persons who are at least 18 years of age, and who possess the necessary aptitudes and experience, or by persons under training who are properly supervised, the Committee asks the Government to provide information on the specific measures in law and in practice which ensure that full effect is given to the present Article.

Part V of the report form. Application in practice. The Committee notes the comprehensive information provided by the Government with regard to the application of the Convention in practice. The Government indicates that, in addition to the regular activities of the labour inspectorate, an international conference on safe handling of containers with dangerous substances was organized in 2009 with the support and participation of trade unions, including the Netherlands Trade Union Confederation (FNV). The Committee also welcomes the information provided by the Government on the activities undertaken by the labour inspectorate, including research undertaken in 2007 on the occurrence of work stress in dock workers; the harbour programme consisting of broad surveillances in sea harbours and inland harbours on basic risks such as safety during loading and unloading, exposure to dangerous goods and safe maintenance of machinery and lifting equipment; the Fysical Strain seminar in April 2009 where social partners agreed upon joint action; a meeting between Dutch, Belgian and German harbour inspectors to exchange experiences and join forces on better and smarter methods for improving compliance; and the information campaign focusing on the safety of inland navigation with a view to strengthening compliance with requirements. The Committee further notes the information indicating that the recent shift of the Government’s role in terms of national policy on occupational safety and health has not had any impact, and that it is possible that no impact will be seen on the implementation of this Convention. The Committee also notes that, with respect to self-employed workers, the Government agrees with the FNV that enforcement of the WCA is only partly possible; and further notes the reference made to the ILO code of practice on safety and health in ports, (ILO, 2005) which states in section 2.1.9.1 that “self‑employed persons are responsible for the safety and health of themselves and others who may be affected by their actions”. The Committee asks the Government to continue to provide information on the application of the Convention in practice; to keep it informed of any impact on the implementation of the Convention as a result of the recent shift in the Government’s role on OSH; and to provide up-to-date statistical information on the number of offences, accidents and fatalities recorded as a result of dock work.

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Further to its observation the Committee notes the information submitted by the Government concerning effect given to Articles 4(3), 6(2), 7(2), 15, 16(1), 32(3) and (4), and 35. It requests the Government to provide clarifications and supplementary information with respect to the following points.

Article 1 of the Convention. Scope of application. The Committee notes that, in response to its query regarding the applicability of the Convention to work incidental to the work of loading or unloading any ship, the Government refers to the most recent legislative changes and that relevant legislation remain applicable to this work. The Committee reiterates its request that the Government provide further information on measures taken to give effect to the requirement that all work incidental to the loading and unloading of ships be covered by national legislation.

Article 2. Exemptions and tripartite consultations. The Committee notes that in its response to the Committee’s query regarding exemptions granted in practice, the Government refers to the relevant sections 9.18–9.20 of the Working Conditions Decree (WCD), 1997 stating that they are applied restrictively under the supervision of the labour inspectorate. The Committee reiterates its request to the Government to indicate whether, in actual practice, exemptions have been granted and if so, to provide further information on such exemptions and measures taken to ensure that the conditions stated in Article 2 are met.

Article 3, subparagraphs (g) and (h). Definitions. With reference to the detailed information provided by the Government, the Committee notes that national legislation uses different terminology to the Convention. It is the view of the Committee that these differences do not appear to be significant in the case of the definitions of “access” and “ship”. The Committee notes, however, that national legislation does not seem to distinguish between the notions of “lifting appliances” and “loose gear”. Noting that this lack of distinction may have an impact, inter alia, on the application of Articles 21–24 of the Convention, the Committee requests the Government to provide further information on how Article 3(e) and (f) of the Convention are applied in practice.

Article 22, paragraphs 2–4. Testing of lifting appliances and loose gear. Taking into account the lack of a distinction made in national legislation between lifting appliances and loose gear as noted above, the Committee notes that in response to its query on the application of Article 22(3), the Government refers, inter alia, to section 7.24 of the WCD which in turn refers to sections 7.29.2–4 of the WCD. Noting the importance to ensure compliance with the requirements of the Convention regarding the periodicity of the inspections carried out on lifting appliances and loose gear in Article 22(2)–(4), and Article 23 respectively, the Committee requests the Government to provide further information on how these provisions are applied in practice in the light of the references made in section 7.29.2 to “suitably tested”, in section 7.29.2 to “effectively tested” and in section 7.29.3 to “regularly and effectively tested”.

Article 25, paragraph 3, and Article 26, paragraphs 1(b) and 2. Certification. The Committee notes the response provided by the Government including reference made to section 7.29, subsections 9 and 10, of the WCD and that the referenced legislative provisions provide that their subject matters will be further regulated by ministerial orders. The Committee requests the Government to provide a copy of the ministerial orders referred to in section 7.29, subsections 9 and 10, of the WCD.

Article 37, paragraphs 1 and 2. Safety and health committees. The Committee notes the information provided in the Government’s report including references to the Works Councils Act (in its available version published in 2003) regulating the setting up, composition and competencies of works councils. The Committee requests the Government to provide further information on how the relevant legislation concerning works councils are applied in practice giving effect to Article 37(1) and (2) of the Convention.

Article 38, paragraph 2. The Committee notes that in its response the Government seems to indicate that it is a legal requirement that lifting appliance and other cargo-handling appliances can only be operated by persons who are at least 18 years of age and who possess the necessary aptitude and experience or persons under training who are properly supervised as provided in Article 2(2), without specifying the relevant legislation. The Committee requests the Government to provide further information on the relevant legislation giving effect to Article 38, paragraph 2, of the Convention.

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The Committee notes the information provided by the Government in response to its direct request including information on amendments adopted in 2007–08 to the Working Conditions Act (WCA), 1998 (available as amended until 18 March 2008) the Working Conditions Decree (WCD), 1997 (available as amended until 18 March 2008) and the Working Conditions Rules (WCR), 1997. The Committee notes with satisfaction that these amendments include provisions which give effect to Articles 22(4), 36(1), and 39 of the Convention.

The Committee also notes that the Netherlands Trade Union Confederation (FNV) submitted observations on 2 November 2007 concerning the application in practice of the Convention, that these observations were transmitted to the Government on 17 December 2007, but that the Government has not provided a response thereto. The Committee requests the Government to provide further information on the following points.

Article 32, paragraphs 3 and 4. Safe handling of dangerous substances. The Committee notes the response provided by the Government with reference to section 4 of the WCD as enforced by the labour inspectorate. The Committee also notes the FNV’s comments that workers are frequently exposed to dangerous goods (notably disinfectants and pesticides) during the handling and trans-shipment of containers and that the FNV regrets the lack of information from the Government on the application in practice of these provisions of the Convention. The Committee requests the Government to provide further information on the practical application of Article 32(3) and (4), taking into account, inter alia, the comments by the FNV.

Part V of the report form. Application in practice. The Committee notes more generally that the Government’s response to the Committee’s request for information on the application in practice is limited to affirmations that the labour inspectorate continues to address the situation regarding dock work, and that, during the period 2001–06, 319 companies active in dock work were visited by the inspectorate. No further details were provided, however, regarding the outcome of these visits. The Committee deems it relevant to note the limited information on the application in practice of the Convention in the light of three different circumstances. (1) The fact that the Government in its response to the Committee’s requests for further information on the application of numerous Articles of the Convention, including Articles 2, 11(1), 15, 16(1), 17(1)(b), 18(1), 20(4), 21(a), 22(2), 24, 29, 38(2) and 41(a) states that enforcement of national legislation is ensured by the labour inspectorate. (2) The observations by the FNV that information regarding application in practice is readily available. The FNV underlines the persistence of a large number of risks for safety and health in dock work, and that enforcement of the WCA is only partly possible because there are many self-employed workers on ships engaged in inland navigation. As a result, a lot of dangerous and unsafe situations remain invisible and unreported. In terms of available information on the application in practice of the Convention, the FNV refers, inter alia, to the 2005 inspection report concerning Inland Navigation (Projectrapportage Inspectieproject Binnenvaart 2005) in which it is noted that 136 offences were recorded on 73 ships out of 210 inspected, and in the period 1997–2003, 12 fatal accidents, in which eight workers drowned, and 100 serious accidents were reported. Major offences consisted of not wearing life jackets during hazardous operations, unsafe workplaces as well as unsafe work equipment. The FNV also refers to the 2005 report on Ports of Trans-shipment A697 (Projectrapportage Inspectieproject Overslag Havens 2005-A697) noting that there were, on average, 32 serious accidents per year in the Dutch transit harbours (a higher average than in any other sector in the Netherlands); that great problems were caused by the exposure of workers to carcinogenic diesel particles (for example by the use of forklift trucks), and that there was no surveillance over the use of personal protective equipment. The FNV concluded its observations by calling for better monitoring of risks and a stricter implementation of legislation. (3) The third factor to be taken into account is that in its reply on the question of application in practice of the Convention, the Government reports on a change in its national policy on occupational safety and health. This change implies a shift of the Government’s role towards formulating basic rules. These basic rules would be further detailed only when a clear need existed and it would be the responsibility of the social partners to develop in further detail these basic rules within the areas of their respective responsibilities. Against this background the Committee requests the Government to provide further detailed information on how the Convention is applied in practice, including as regards the application of Articles 2, 11(1), 15, 16(1), 17(1)(b), 18(1), 20(4), 21(a), 22(2), 24, 29, 38(2) and 41(a) and taking into account the comments by the FNV. The Committee also requests the Government to provide further details on the reported shift in the national OSH policy, whether this new approach has been applied as regards matters relevant for the application of the present Convention and in that case, provide an appreciation of the impact that this shift has had on the application of the Convention.

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

[The Government is asked to reply in detail to the present comments in 2010.]

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1. The Committee notes the detailed information provided by the Government in its first and second reports. It requests the Government to supply clarifications and supplementary information with respect to the following points.

2. Article 1 of the Convention. Scope of application. The Committee notes that the provisions of the Working Conditions Act (Arbeidsomstandighedenwet) of 18 March 1998 (as amended until 1 November 1999) (WCA), and the Working Conditions Decree (Arbeidsomstandighedenbesluit) of 22 May 1997 (as amended until 10 September 1999) (WCD), apply to the work of loading and unloading of ships. Please clarify whether the WCA and the WCD also cover all work incidental to the loading and unloading of ships.

3. Article 2. Exemptions and tripartite consultations. Please indicate: (i) the measures taken to ensure that safe working conditions are maintained when the exemptions under subsection 4 of section 7.37 and section 9.18 of the WCD are applicable; (ii) the manner in which the employers’ and workers’ organizations concerned were consulted regarding these decisions; and (iii) the reasons for which these exemptions have been made.

4. Article 3(e) to (h). Definitions. Please indicate the provisions of national legislation under which the terms "lifting appliance", "loose gear", "access" and "ship" have been defined.

5. Article 4, paragraph 3. Practical implementation through technical standards or codes of practice. The Committee notes that the implementation of the requirements prescribed in paragraph 1 of Article 4 is assisted by the Working Conditions Policy Rules, 1999 (Beleidsregels Arbeidsomstandighedenwetgeving) of October 1999 (WCPR), a technical standard. In this context, the Committee wishes to draw the attention of the Government to the ILO code of practice on safety and health in ports published in 2005 (online at http://www.ilo.org/public/english/protection/safework/cops/english/) .

6. Article 6, paragraph 2. Consultation of workers concerning working procedures. Please indicate the measures taken to give effect to the requirement of the provision that workers be given the opportunity of expressing their views on the working procedures adopted as they affect safety.

7. Article 7, paragraph 2. Collaboration between employers and workers. Please indicate the measures taken to ensure close collaboration between employers and workers or their representatives in the application of the measures referred to in Article 4, paragraph 1, of the Convention.

8. Article 11, paragraph 1. Adequate width of passageways. Please indicate the measures taken to ensure that passageways of adequate width are left to permit the safe use of vehicles and cargo-handling appliances.

9. Article 15. Safe means of access to ship during loading or unloading. Please describe the measures taken to provide safe means of access when a ship is being loaded or unloaded alongside a quay or another ship.

10. Article 16, paragraph 1. Transport of workers to or from a ship. Please indicate the measures taken when workers have to be transported to or from a ship or other place by water, to ensure their safe embarking, transport and disembarking and the conditions to be complied with by vessels used for the purpose.

11. Article 17, paragraph 1(b). Access to the hold or deck of a vessel. Please indicate the manner in which the competent authority determines the acceptability of "other proper means of access" referred to in subsection 1 of section 7.24 of the WCD relating to access to the hold or deck of a vessel.

12. Article 18, paragraph 1. Construction of hatch covers or beams. The Committee notes that section 3.2 of the WCD generally provides that workplaces should be equipped and maintained in such a manner that danger to the health and safety of employees is avoided as much as possible and that subsections 1 and 2 of section 7.4 of the WCD require work equipment to consist of sound materials and to be constructed properly. Please indicate the specific measures taken to give effect to the requirement that no hatch cover or beams shall be used unless they are of sound construction, of adequate strength for the use to which they are to be put and properly maintained.

13. Article 20, paragraph 4. Safe loading or unloading from holds, ’tween decks, bins or hoppers. Please indicate arrangements made for the safety of persons, including arrangements for safe means of escape, when dry bulk cargo is being loaded or unloaded in any hold or ’tween deck or when a worker is required to work in a bin or hopper on board ship.

14. Article 21(a). Design of lifting appliances, loose gear and lifting devices. Please indicate the measures taken to give effect to the requirement that every lifting appliance, every item of loose gear and every sling or lifting device forming an integral part of a load shall be of good design.

15. Article 22, paragraph 2. Testing of lifting appliances. Please indicate how Article 22, paragraph 2, is applied in practice.

16. Article 22, paragraph 4. Examination and certification of tests carried out. Please indicate whether a ministerial order has been issued under subsection 9 of section 7.19 of the WCD, as indicated in the report and in that case, please submit a copy of that ministerial order.

17. Article 24. Inspection of loose gear and slings. Please indicate the measures taken to give effect to the requirement that every item of loose gear be regularly inspected before use, that in the case of pre-slung cargoes, the slings be inspected as frequently as reasonably practicable and that a responsible person be appointed for such purposes.

18. Article 25, paragraph 3. Examples of certificates granted or recognized as valid. Please furnish samples of the registers and certificates which are required to be maintained under this Article.

19. Article 26, paragraphs 1(b) and 2. Certification and safe use of lifting appliances. Please indicate the measures taken for the recognition of arrangements made by other Members for the testing, examination, inspection and certification of lifting appliances, items of loose gear or other cargo-handling appliances and for conditioning the use of lifting appliances, items of loose gear or other cargo-handling appliances on measures taken to establish that they can be used safely.

20. Article 29. Safe use of pallets and similar devices. Please indicate the measures taken to ensure that pallets and similar devices for containing or supporting loads are free from visible defects liable to affect their safe use.

21. Article 31, paragraph 2. Safe lashing or unlashing of containers. Please indicate the means provided for ensuring the safety of workers when lashing or unlashing containers.

22. Article 32, paragraphs 3 and 4. Safe handling of dangerous substances. Please indicate the measures taken to give effect to the requirement that when receptacles or containers of dangerous substances are broken or damaged to a dangerous extent, dock work, other than that necessary to eliminate danger, shall be stopped in the area concerned and the workers removed to a safe place until the danger has been eliminated, as well as measures taken to prevent the exposure of workers engaged in dock work to toxic or harmful substances or agents or oxygen-deficient or flammable atmospheres.

23. Article 35. Removal of injured persons. Please indicate the measures taken to give effect to the requirement of the provision that adequate facilities be readily available for the rescue of any person in danger and for the removal of injured persons in so far as is reasonably practicable without further endangering them.

24. Article 36, paragraph 1. Medical examinations. The Committee notes that the Government refers, on the one hand, to the general requirement for periodic medical examinations of employees in section 18 of the WCA and, on the other hand, to the provisions in sections 4.22-23, 4.35, 4.52 and 6.10 of the WCD concerning the medical examination of employees exposed to certain specific hazards. Please indicate how effect is given to the requirements to provide for medical examinations in Article 36, paragraph 1, of the Convention.

25. Article 37, paragraphs 1 and 2.  Safety and health committees. The Committee notes that sections 12 and 15 of the WCA and sections 4.24, 4.46, 4.47 and 4.50 of the WCD refer to works councils. Please provide further information on how the provisions concerning works councils are applied in practice giving effect to Article 37, paragraphs 1 and 2.

26. Article 38, paragraph 2. Minimum age for handling lifting and other cargo handling appliances. Please indicate the measures taken to ensure that lifting appliances and other cargo-handling appliances are operated only by persons who are at least 18 years of age and who possess the necessary aptitude and experience or persons under training who are properly supervised.

27. Article 39. Notification of accidents. The Committee notes that the notification requirement under section 9(1) of the WCA is limited to accidents resulting in "serious physical or mental injury" and that no such limitation is provided for in Article 39. Please indicate the measures taken or envisaged to give full effect to this provision of the Convention. Please also submit copies of the ministerial orders issued under section 2.1 of the WCD concerning the information which ought to be supplied in the written notification of accidents and occupational diseases under sections 9(1) and 9(2) of the WCA, respectively.

28. Article 41(a). Assigned duties in respect of occupational safety and health. Please indicate the measures taken to give effect to the requirement to specify the duties in respect of occupational safety and health of persons and bodies concerned with dock work in Article 41(a) of the Convention.

29. Part V of the report form. The Committee notes the Government’s information regarding the application in practice of the provisions giving effect to the Convention. It notes the information that 284 stevedoring companies perform dock work in the country and, between 1 January 1999 and 1 November 1999, the Labour Inspectorate performed an inspection project on stevedores and that 106 inspections were performed in this period. The inspections found that the most frequent violations were: (a) absence of a risk evaluation; (b) insufficient maintenance of means of transport; (c) risks of falling from a height; (d) absence of working times registration; and (e) absence of or unused personal protective equipment. The Committee also notes that 76 official warnings and eight official reports were issued on the basis of these inspections. Please provide information on the measures taken by the Labour Inspectorate to address the concerns raised in the Government’s report and to continue to provide information on how the Convention is applied in practice.