Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the Government’s report received in August 2013 which includes information in reply to its 2011 observation and to the concerns raised by the Netherlands Trade Union Confederation (FNV) in 2010. It also notes the most recent observations made by the FNV in August and September 2013. The Committee notes that a concern to the FNV is the rise of the so-called “contracting companies” that provide workers to a third party (user enterprise), but do not fall within the scope of the Collective Labour Agreement for Temporary Agency Workers. The FNV indicates that work is being done on the basis of a fixed price and supervision take place by the contracting company, and not by the hiring company (user enterprise). Still, the workers are employed by the contracting company and are sent to user companies to work. The Committee notes that another concern to the FNV is the so-called “payrolling”, a situation in which an employee is hired by a company but is given an employment contract with the payrolling company that pays the wages. Furthermore, the Committee noted in its 2011 observation the remarks made by the FNV indicating that the Placement of Personnel by Intermediaries Act (WAADI) prohibits a company confronted with a strike from hiring workers from a temporary employment agency. The FNV added, however, that 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, and the FNV was of the opinion that the Act should be revised. In its 2013 observations, the FNV indicates that companies affected by a strike do not only make their own personnel perform the duties of the striking workers but also hire personnel employed to a third party, not part of the affected company and not a temporary employment agency according to the WAADI. The FVN adds that the WAADI does not cover this situation and that there is no supervision by public organizations. The Committee invites the Government to provide in its next report information with regards to the concerns raised by the FNV.

Supervision of the operation of private employment agencies. The Government indicates in its report that the estimated number of temporary agency workers is about 200,000 daily, and that public and private laws are applicable to all temporary agency workers. Enforcement of legislation is in the hands of public and private organizations: the Labour Inspectorate is responsible for the enforcement of public laws and the Labour Standards Foundation, a private enterprise, is responsible for the control of the certification system. Enforcement by the private sector is executed by the Foundation for monitoring compliance with the Collective Labour Agreement for Temporary Agency Workers (SNCU). The Government adds that public and private organizations are working together in the monitoring of the so-called system of self-regulation. Moreover, the Government indicates that in 2012 a special project was launched with the aim of reducing the number of fraudulent and illegal temporary employment agencies and to eliminate human trafficking. Tax authorities, the SNCU, the Labour Standards Foundation, the Chamber of Commerce, the Ministry of Economic Affairs and the Ministry of Social Affairs and Employment are working together in this project. The FNV reiterates its concerns about the system of self regulation, stating that it does not eliminate fraudulent and illegal temporary work agencies. It adds that it supports the monitoring efforts of private organizations but maintains that the Government has its own responsibility in implementing and fulfilling the obligations of the Convention. The Committee invites once again 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, as well as information on the measures taken to eliminate fraudulent and illegal temporary work agencies (Part V of the report form). It also requests the Government to indicate how it ensures that the system of self-regulation of temporary work agencies is monitored and supervised by the labour inspectorate or other competent public authorities (Article 14(2)).

Article 6 of the Convention. Protection of personal data. The Government indicates that temporary work agencies do not have full access to the data files of the registered unemployed persons at the public employment service (UWV). Unemployed persons must give their consent before personal data can be viewed by the temporary work agencies. The FNV indicates that the Government is not clear about the measures taken to protect personal data. The Committee invites the Government to provide in its next report further information 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. The Government indicates that temporary agency workers have a right to vocational training according to collective agreements, such as the Collective Labour Agreement for Temporary Agency Workers. Moreover, the Government indicates that if a temporary agency is certified, the user enterprise is relieved from liability for the continued payment of wages. In the event of bankruptcy, the temporary worker may apply to the UWV who will continue to make the payment of wages for several months. The Committee invites the Government to continue to provide information on the practical application of Articles 11 and 12 of the Convention.

Article 13. Cooperation between the public authorities and private employment agencies. The Government indicates that the UWV and the municipalities work together on labour market policies in the 35 labour market regions. It adds that, in order to develop these policies, the UWV works with private employment agencies. 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.