Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Private Employment Agencies Convention, 1997 (No. 181) - Netherlands (Ratification: 1999)

Supervision of the operation of private employment agencies. The Committee notes the information provided in the Government’s report received in August 2010 in reply to the 2009 direct request. It also notes the new remarks provided by the Netherlands Trade Union Confederation (FNV) and the contribution of the Confederation of Netherlands Industry and Employers (VNO NCW) and the Federation for small and medium-sized businesses (MKB NL). In reply to the issues raised by the FNV in 2009 indicating that a system of permits would be more efficient for combating fraud and illegality, the Government indicates that until 1998 such a system of permits existed in the Netherlands; however this system was not efficient. The Government reports that it was hardly possible to maintain the system and to control all permit holders. It further indicates that it is difficult to confirm if the current system of self regulation eliminates illegal temporary work agencies. The FNV maintains its concerns about the system of self-regulation indicating that it does not eliminate fraudulent and illegal temporary work agencies. It also acknowledges that the previous system of permits was not the most efficient and points out that with sufficient government resources, a better, more efficient and transparent system is possible. The FNV reiterates its previous statement concerning the estimated number of fraudulent private employment agencies in the country, that is, 5,000 to 6,000. The VNO-NCW and the MKB-NL also refer to these estimates, indicating that the figures are based on a 2008 study carried out for the Foundation for Compliance with Collective Agreements in the Temporary Employment Sector (SNCU). The Committee recalls the concerns expressed by the FNV indicating that the purpose of the self-regulatory system is that the labour inspectorate focuses its attention and inspections mainly on the non-registered temporary work agencies instead of inspecting the registered agencies. The FNV indicates that the Government transfers through the system of self-regulation the responsibility of supervision and control over certified agencies on to private parties. Furthermore, the FNV is of the view that, in practice, both registered and unregistered agencies are mainly, if at all, supervised and monitored by private and not public authorities. The Government states that temporary agencies registered in the Labour Standards Register are supervised or controlled by the labour inspectorate. The Dutch Association of Temporary Work Agencies (ABU) periodically produces facts and figures on the activities of private employment agencies. The Committee invites the Government to report on the application of Article 14 of the Convention to all temporary work agencies and to provide extracts from reports of the inspection services and information on the number of workers covered by the Convention (Part V of the report form). It also invites the Government to indicate the manner it ensures that the system of self-regulation of temporary work agencies is supervised by the labour inspectorate or other competent public authorities (Article 14(2)).

Article 6 of the Convention. Protection of personal data. The FNV indicates that it is very critical about the fact that temporary work agencies have access to all the data files of the registered unemployed persons at the public employment service (UWV). The Committee invites the Government to provide information in its next report on the manner in which workers’ personal data is protected.

Articles 11 and 12. Protections for workers and responsibilities of private employment agencies and user enterprises. Replying to the FNV’s previous comments regarding the payment of wages, the Government indicates that it has the responsibility to ensure that minimum wages are paid to all employees, not for the payment of correct wages. It further indicates that, with respect to the matters covered in Articles 11 and 12, the protection of the position of temporary workers is the same as regular employees. The Government also states that the user enterprise explicitly is responsible for the working conditions of the temporary agency workers. The FNV states that the protection of the position of temporary workers is not always the same as regular employees and provides an example indicating that most agency workers have no access to training. The FNV is also of the opinion that a joint liability for full wages should be shared by the agency and user enterprises together as agencies tend to file for bankruptcy if a wage claim is looming. Furthermore, the FNV indicates that Section 10 of the Placement of Personnel by Intermediaries Act (WAADI) prohibits a company confronted with a strike of its workers from hiring workers from a temporary employment agency. However, the Act does not prohibit a company affected by a strike in a contracted company from making its own personnel perform the duties of the striking workers. The FNV is of the opinion that the Act should be revised. The Committee wishes to recall that given the particularities of working arrangements in which employees work for a user enterprise that assigns and supervises the execution of the work and the uncertainty as to responsibility, it is necessary for member States to address theses particularities through measures that ensure that in each case effective responsibility is determined (see paragraph 313 of the 2010 General Survey concerning employment instruments). The Committee invites the Government to provide information with regard to the concerns raised by the FNV and to supply information on the measures taken to ensure protection for workers in the areas described in Article 11 and how it has determined the allocation of the responsibilities between the temporary work agencies and the user enterprises as laid down in Article 12.

Article 13. Cooperation between the public authorities and private employment agencies. The Government indicates that temporary employment agencies play no additional role in the formulation of labour policy of public employment services. Private agencies are positioned at the central floor of the work plazas because they are considered as a useful party in helping people with difficulties in the labour market. At the regional level, public and private employment services are working together. The Government reports on an agreement between the UWV and the ABU concerning the placement of young unemployed persons. The FNV raises concern that an unemployed person asking for an unemployment benefit is obliged to accept a new job not only through the UWV but also through the temporary work agency. If the unemployed person does not accept a suitable temporary job, he or she may lose the benefit. The Committee invites the Government to report on the manner in which efficient cooperation between the public employment service and private employment agencies is promoted and reviewed periodically. Please also provide information on the measures taken to ensure that the competent authority receives relevant information on the activities of the private employment agencies.

[The Government is asked to reply in detail to the present comments in 2013.]