Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Netherlands (Ratification: 1952)

The Committee notes the observations of the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Union and the Trade Union Federation for Professionals (VCP), received on 31 August 2017. The Committee requests the Government to provide its comments in this respect.

Articles 1 and 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to provide additional explanations with regard to the nature, scope and content of the Code for responsible market behaviour in the cleaning industry and its possible impact on the practical application of the Convention. The Government indicates that the pilot version of the Code from 2011 was applied only in the cleaning sector, but that the Code is now more widely applied beyond the cleaning industry, and is now also used for movers, as well as in the security and contract catering sectors. The Government also indicates that, by signing the Code, the parties (commissioning parties, contractors, trade unions and intermediaries) undertake to apply a set of principles regarding working conditions, including the correct payment of wages. The Government adds that the Code assists the parties to describe, accept and carry out assignments in a socially responsible manner, with respect for the quality of the services being provided. To monitor the implementation of the Code, each sector has a specific committee, composed of the social partners and contractors for each sector, which is authorized to examine complaints alleging inefficient or inadequate application of the Code. After hearing both parties, the committee decides whether a sanction should be imposed for non-compliance. In this respect, the Committee notes the observations of the workers’ organizations, in which they point out that the Code is a private initiative which does not contain any legally binding provisions implementing the requirements of the Convention. The Committee notes that, in accordance with Article 1(1)(c), the Convention applies not merely to a specific sector, but to all public contracts, whether for works (construction, alteration, repair or demolition of public works); goods (the manufacture, assembly, handling or shipment of materials, supplies or equipment); or services (the performance or supply of services). The Government reports that, to improve social conditions for workers, it has put in place a so-called “chain of liability for wages”, which makes all legal entities in the chain (the main clients, contractors, subcontractors and employers) jointly responsible for payment of wages of the workers hired under the contract. If the workers do not get paid or are underpaid, they can hold each link in the chain liable for payment of their wages. The workers’ organizations note in their observations that the “chain of liability” procedure is too unwieldy because each link has to be addressed separately and each claim must be fully examined before the employee can move up to the next link in the chain. The workers’ organizations underline that this requirement makes the process too long, especially for foreign workers that often leave the country before even the first link in the chain is fully addressed. In their observations, the workers’ organizations once again express concern regarding the non-application of the Convention, indicating that the Public Procurement Act, which entered into force on 1 April 2013 and provides a general legal framework for public procurement regulations, implements the public procurement European Directives without ensuring the application of the Convention. In this regard, they note that section 2.115, paragraph 1, of the Public Procurement Act essentially reproduces section 26 of the Order of July 2005 on procedures for the award of public works, supply and service contracts implementing the EU Public Procurement Directive of 2004 and does not ensure the application of Article 2 of the Convention. The workers’ organizations point out that section 2.115, paragraph 1 of the Act is drafted as a purely permissive provision, as it authorizes the contracting authority to require the contractor to observe certain social, environmental and/or innovation criteria, but does not require the contracting authority to require the contractor to adhere to such criteria. As the Committee has noted in previous comments, the core requirement of the Convention concerns the inclusion of labour clauses of the type provided for in Article 2. The Committee therefore requests the Government to provide information on progress made in ensuring effective application of the core requirements of the Convention. The Committee also requests the Government to provide updated information on the Code and its impact, and on the number and type of sanctions imposed by the sectoral committees in cases of non-compliance.