Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Labour Inspection Convention, 1947 (No. 81) - Netherlands (Ratification: 1951)

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.

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 this Convention, 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).

It notes that that the FNV, CNV and VCP allege that the Government does not give appropriate follow-up to the recommendations of the tripartite committee, that there is a lack of a meaningful consultation process to find solutions and that no specific measures were proposed or introduced by the Government to address the recommendations in the representation. On the other hand, the VNO-NCW and the MKB Netherlands refer to some recent positive developments in relation to the issues raised in the representation.

Occupational safety and health (OSH) system introduced in the Netherlands in 2007. The Committee notes the Government’s explanations concerning the Dutch OSH policy and legislation. The Government indicates that a framework of rights, duties and goal-based regulations has been established in the national legislation (the public domain), and that the social partners, which are at the heart of a functioning OSH system, agree, in so-called OSH catalogues, on ways and methods to achieve healthy and safe working conditions in specific branches in order to comply with the goal-based regulation (the private domain). The Government indicates that, in this system, it has both facilitating and enforcement roles.

Articles 3(1) and (2) and 10 of the Convention. Workload of labour inspectors. Time spent on administrative tasks. The Committee recalls that the report of the tripartite committee examined the question of increase in the administrative tasks of labour inspectors (such as correspondence and drafting reports) at the expense of labour inspections. In this regard, the Committee requested the Government, in its previous comment, to provide information on the proportion of time spent by labour inspectors on administrative duties, in relation to their primary functions. In this regard, the Committee notes the Government’s reply that the careful recording of information on inspection visits and interventions is an administrative requirement, but that the inspectorate intends to reduce the time spent on administrative tasks as much as possible. This is intended, for example through the digitalization of tasks, and encouraging labour inspectors to make proposals for the improvement of inefficiencies that are observed in the management of work. The Government further indicates that labour inspectors spend 62 per cent of their time on labour inspections and tasks directly related to the handling of cases (preparing inspections and tasks following inspections, such as recording inspection results and findings, preparing improvement/prohibition notices or infringements reports), and that they spend 38 per cent of their time on training and the provision of advice.

The Committee notes that the FNV, CNV and VCP indicate that it is not clear from the Government’s report how much time labour inspectors actually spend on their primary duties. It further notes the indications of the FNV, CNV and VCP that according to the 2014 annual labour inspection report, the decisions of the labour inspectorate are increasingly judicially challenged, which results in labour inspectors spending more time on collecting and recording information and dealing with objections and appeals from employers. In this regard, the Committee also notes the Government’s explanation that the decrease in the number of labour inspection visits is partly due to cases having become more complex and time-consuming (cases involving notorious offenders, cases involving several employers, etc.). The Committee requests the Government to provide its comments to the observations made by the FNV, CNV and VCP, and once again requests the Government to provide information on the proportion of time spent by labour inspectors on administrative duties, in relation to the primary functions of labour inspection. Noting the increase in the complexity of cases, the Committee requests the Government to provide information on the measures it is taking to ensure a sufficient number of labour inspections to ensure the effective discharge of inspection duties.

Article 5(a). 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 notes the Government’s reply to the Committee’s request as to the efforts made to improve cooperation between inspection services, that the operational directorates within the labour inspectorate work closely together, and that there are various instances of cooperation with other state inspection departments and enforcement agencies, including through discussions of the Inspector-Generals of the state inspection departments in the Inspection Council, which meets ten times a year. In this regard, it also notes the reference of the FNV, CNV and VCP in their observations to the 2014 report of a national OSH research institute, which criticized the many different operation modes of the various inspectorates and advocated a more uniform line of action. The Committee invites the Government to discuss with the social partners how cooperation among the operational directorates of the labour inspectorate at the Ministry of Social Affairs and Employment, and with inspection services in other ministries can be improved. 2. The activities undertaken to promote effective cooperation between labour inspection and private occupational safety and health (OSH) services. The Committee notes that the report of the tripartite committee considered the lack of access that the labour inspectorate has to the information held by OSH services (for example, on emerging risks or trends in particular health and safety issues) and noted the Government indications that assessments by the inspectorate to determine high-risk sectors are based on many different sources, but these assessments do not appear to be based on information held by private OSH services which cover 93 per cent of employees. The Committee notes that, in reply to its previous request concerning the promotion of effective cooperation between labour inspection and private OSH services (in particular for the exchange of relevant data), the Government refers to a programme aimed at improving OSH in companies, this includes, among other things, knowledge sharing with OSH services and consultations with the association of OSH services (OVAL). The Committee requests the Government to provide detailed information on the activities undertaken in the framework of the abovementioned programme to promote cooperation between the labour inspectorate and OSH services, and the impact of these activities on the work of the labour inspection services.

Article 7(3). Training of labour inspectors. The Committee notes that the tripartite committee considered that, where specialized technical tasks are assigned to labour inspectors, they should receive additional training. The Committee notes that the Government indicates, in response to the Committee’s previous request on the training provided to labour inspectors in the areas of psychosocial stress, chemical substances, nanoparticles and the evaluation of risk assessments, that meetings are organized with specialized inspectors and experts in the field of biological agents, psychological workload, dangerous substances, etc. It further notes the Government’s reference to a specialized course on psychosocial risks. The Government further indicates that the inspectorate closely monitors developments with regard to new occupational risks, such as nanotechnology and provides special training when sufficient scientific knowledge is available. The FNV, CNV and VCP emphasize that in their view, which is supported by the Works Council of the labour inspectorate, labour inspectors are not sufficiently equipped with knowledge and skills to fulfil their duties. The Committee requests the Government to consider discussing specific training needs with the Works Council of the labour inspectorate and the social partners. Please provide information on the outcome of these discussions, and where applicable, any measures taken as a result.

Articles 10 and 16 of the Convention. Number of labour inspectors and the frequency of labour inspections to ensure the effective discharge of inspection duties. The Committee recalls that the tripartite committee examined the question of the number of labour inspectors and of labour inspections, the focus of inspections on high-risk companies (leaving other companies under inspected) and the absence of inspections in small enterprises (with fewer than 20 workers). In this regard, the tripartite committee noted that, between 2005–13, the number of labour inspectors decreased from 478 to 439 and the number of labour inspections decreased from 39,610 to 23,321. The tripartite committee also noted the Government’s reference to the particularities of the Dutch OSH system and its indication that fewer inspections do not mean a fall in the quality of enforcement or in compliance with laws and regulations, but are rather a consequence of the efficient deployment of inspection capacity and the active involvement of companies and social partners to tackle OSH issues.

The tripartite committee welcomed the involvement of the social partners and of enterprises in compliance monitoring and assessment, as well as the development of new methods of collaboration and involvement, but considered that they cannot replace the compliance and enforcement functions of the labour inspectorate. Especially in workplaces where trade union representation is low, such as in SMEs, workers are unlikely to be in a sufficiently strong position to take over responsibility from the labour inspectorate for ensuring compliance with the legal obligations. In this regard, the tripartite committee also noted that the Government did not reply to the trade union’s allegations that a significant number of employers do not have a risk-assessment system and do not comply with their obligations under the Working Conditions Act to seek expert OSH assistance.

In reply to the Committee’s request concerning the number and frequency of labour inspections (particularly in enterprises that are not considered to be in high-risk sectors and in small enterprises), the Committee notes the Government’s indication that all sectors are covered by labour inspections. It also notes the Government’s indication that, while labour inspectors focus on high risk sectors, inspections are also undertaken following certain signals (such as industrial accidents and complaints from individuals, workers or their representatives). The Committee notes from the statistics provided by the Government that the number of labour inspections has continued to decrease (from 23,321 in 2013 to 22,641 in 2014). According to the Government’s explanation, this is partly as a result of cases having become more complex and time-consuming. The Committee also notes that no distinction is made in the statistics provided concerning labour inspections in enterprises not considered to be high-risk and in small enterprises.

In relation to the statistics provided by the Government, the Committee notes that the FNV, CNV and VCP emphasize the decrease of labour inspections, interventions, preventive measures, sanctions, and financial penalties, whereas the VNO-NCW and the MKB Netherlands emphasize the increase in the number of labour inspectors (from 439 in 2013 to 464 in 2014) which is more than prior to the OSH system reform in 2007, and the decrease in the number of industrial accidents. The Committee requests the Government to continue to provide statistics on the activities of the labour inspection services (including 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 diseases). In this respect, the Committee requests the Government to aggregate the number of labour inspections by indicating the number of labour inspections in high-risk sectors and in small and medium-sized enterprises. Please also provide information on the number of labour inspections carried out following complaints made by workers in small enterprises, and the number of labour inspections concerning the compliance of employers with regard to risk-assessments and their obligations under the Working Conditions Act to seek expert OSH assistance.

Article 14. Notification of occupational diseases. The Committee recalls that the report of the tripartite committee considered that the system for the reporting of cases of occupational disease does not appear to enable the labour inspectorate to carry out its preventive activities in a satisfactory manner. The tripartite committee considered that the anonymized reports of the Netherlands Centre for Occupational Diseases (NCvB), published every two years, enable the inspectorate to take preventive action with regard to specific sectors, but do not seem to enable it to react rapidly and carry out preventive activities or inspections in the specific workplaces concerned. Moreover, it considered that the information in the report of the NCvB does not appear to be complete due to the reporting of occupational diseases.

The Committee refers to its 2015 comments under the Occupational Safety and Health Convention, 1981 (No. 155) where it noted the Government’s indication on the measures that are being considered to improve the reporting of occupational diseases to the NCvB. The Committee also notes the 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. The Committee requests the Government to provide its comments in relation to the abovementioned observations of the FNV, CNV and VCP.

Article 15(c). Principle of the confidentiality of complaints. The Committee notes that the tripartite committee emphasized that unannounced labour inspections should be made to ensure that when inspections are conducted as a result of a complaint, the fact of the complaint is kept confidential.

In this regard, the Committee notes the Government’s indication, in response to the Committee’s request to indicate the number of unannounced labour inspection visits, in relation to the overall number of inspection visits, that in principle, the inspectorate only carries out unannounced inspection visits. The only exceptions are inspections of enterprises which fall under the legislation relating to the control of major-accidents hazards involving dangerous substances, because they are much more complex (447 inspections of the 22,641 inspections in 2013). In the case of a complaint, the inspectorate is required under section 26 of the Working Conditions Act not to disclose any personal details of the worker to the employer. In cases where the possibility exists that a complaint could be traced back to a worker, the inspector can propose to the worker that the complaint be filed by the works council or employee representation.

In this regard, the Committee also notes the observations made by the FNV, CNV and VCP, that the Government’s indications on the relation between announced and unannounced inspection visits is not substantiated and sharply contradicts the experience and observations of other stakeholders. The Committee also notes the observations made by the VNO-NCW and MKB Netherlands that the Dutch system of announced and unannounced inspection visits ensures a good balance. The Committee requests the Government to provide detailed statistics on the number of announced and unannounced inspection visits. Please also indicate how many inspections visits were made as a result of a complaint, compared with regular inspection visits.