1998 Working Conditions Act passed

Download article in original language : NL9812112FNL.DOC

In early November 1998, the Lower Chamber of the Dutch Parliament passed a new Working Conditions Act. Under pressure from a majority in the Chamber, it adopted a number of amendments to the previous bill. For the most part, these changes will mean a continuation of the status quo. The most important new measure concerns increased emphasis on the responsibility for risk assessment and evaluation.

In March 1996, the Dutch cabinet issued a policy document on the Reorientation of working conditions policy and the Working Conditions Act (Heroriëntatie arbobeleid en Arbowet). The document aimed to increase the effectiveness of current regulations on occupational safety and health (OSH). Its broad objective was to replace supposedly stifling regulations set out in the current law. In addition, it proposed new enforcement measures: rules pertaining to "minor" risks were no longer to be enforced by the Health and Safety Inspectorate (Arbeidsinspectie), but by means of civil action on the part of employees or the works council. Transgression of regulations pertaining to serious risks could then be sanctioned by means of an "administrative fine" imposed by the Health and Safety Inspectorate.

In drawing up this policy document, the government consulted the Social and Economic Council (Sociaal Economische Raad,SER), a tripartite advisory body made up of both employer and employee representatives as well as independent "crown members". The SER recommendation rejected the proposal for the new enforcement policy, particularly the notion of "minor" risks. In addition, the social partners in the SER proposed new regulations on "tailor-made" OSH policy. These would leave employers and employees free to depart from legal guidelines, provided that the legally required level of protection remained intact and "tailor-made" arrangements between employers and employees were established by means of a collective agreement or a written agreement between the employer and the works council.

Legislative proposal

The proposed enforcement strategy was substantially "watered down" in a legislative proposal drafted on 7 February 1998 (NL9803165F). The administrative fine was the only element of the proposal to remain intact. The cabinet also adopted the SER's proposal for tailor-made policies. The two proposals were basically the only sweeping measures included in the bill, which otherwise limited itself to "streamlining" various provisions in the existing law.

Streamlining in this case would mean scrapping a number of the current legal requirements. The annual OSH plan and its accompanying annual report (obligatory under the current law for companies with over 100 employees) was seen as obsolete by the cabinet, in view of the government's broader commitment to draw up a risk assessment and a subsequent plan of action. The proposal advocated abolishing legal provisions governing employee consultation and information campaigns aimed at younger employees, based on the assumption that these were already implemented in companies to a reasonable extent. Another recommendation was to scrap the term "well-being" from the existing law, as the cabinet claimed this merely led to confusion. Finally, a number of the works councils' legal powers were transferred to the Works Councils Act, whilst certain others were not but were nevertheless removed from the Working Conditions Act. One of the powers that seemed to vanish in this way was the involvement of works councils in determining the content of contracts with the Occupational Health and Safety Service (Arbodienst).

Parliamentary debate

The parliamentary debate on the Working Conditions Bill was rather uneventful. The proposal to instate an administrative fine was passed without much discussion: companies in violation of legal standards may now be fined up to NLG 10,000 or NLG 25,000, depending on the type of rule they breach. The bill also provides for tailor-made policies, based on a collective agreement with trade unions or a written agreement between the employer and the works council.

The remaining debate was mainly characterised by the withdrawal of earlier proposals: employee consultation will remain a legal obligation, as will the provision of information to younger employees. The proposal to do away with the term "well-being" was also withdrawn. In time, the act will contain a legal framework for regulations governing issues such as workload and stress. Finally, the imminent rupture between works councils and occupational health and safety services was staved off - the latter must fully and directly inform and cooperate with the works council (that is to say, without prior interference by the employer).

The only real moot point concerned the issue of whether or not the annual OSH plan and annual report should be omitted from the act. These elements had been scrapped in the bill, as risk assessment and the obligatory action plan were deemed an effective alternative. A number of "progressive" parliamentarians pointed out that although this may be true in theory, in reality efforts to carry out risk assessments were often inadequate, and even more so in the case of action plans. The Labour Party (PvdA) proposed maintaining the annual plan and annual report, unless an agreement could be reached on a fixed period (of one year) in which to carry out the risk assessment.

Finally, the secretary of state for social affairs, Hans Hoogervorst, proposed a compromise. Under the new act, companies would be obliged to write an annual report on the progress required on the basis of the plan of action. This report should also contain an overview of all industrial accidents that occurred in the preceding year. In a highly interesting development, the report is to be discussed annually with the works council or the employees concerned. This would include an evaluation of whether or not the risk assessment is still applicable. In smaller, low-risk organisations, the risk assessment may not have to be carried out on an annual basis, whereas in high-risk companies it may have to be carried out several times a year.

Commentary

The final result of all these legislative proceedings could be seen as "much ado about nothing". The 1998 Working Conditions Act, as the new act is officially known, deviates from the existing Working Conditions Act with respect only to a number of minor points. The fundamental principles behind the act remain intact. These are that the employer must:

• formulate a sound OSH policy, which should be based on a sound risk assessment;

• confer with the employee representatives regarding OSH; and

• be assisted by a certified Occupational Health and Safety Service.

The Lower Chamber restored most of the concrete issues that the cabinet had sought to withdraw.

The novelties in the act will have to stand the test of time. The new administrative fine seems to be an appealing measure, and it will not be strictly enforced in most cases (inspectors will first issue a formal warning). It is safe to assume that the mere threat of a fine will normally prove sufficient for unwilling employers to take appropriate measures. In addition, the Lower Chamber succeeded in pushing through the proposal to appoint more inspectors. It must be noted, however, that the fines may prove too moderate to induce calculating employers to take costly measures, although repeated offences may eventually lead to criminal charges.

Concerning the tailor-made policy, expectations should not run too high. Firstly, Dutch regulations on working conditions are generally (80%) derived from European regulations, from which they cannot deviate. Secondly, actual experience regarding agreements between employers and employees is not very encouraging. Where employers can be induced to establish collective arrangements, their content is generally rather meagre (according to a recent report from the Health and Safety Inspectorate - "Aspecten van arbeidsomstandigheden in cao's", Arbeidsinspectie, Elsevier Bedrijfsinformatie, 's-Gravenhage, November 1998). Thirdly, employers could potentially misuse the issue of working conditions as a bargaining chip in negotiations with trade unions. Finally, the question arises as to whether works councils are properly equipped to establish agreements on working conditions. Time constraints are already a serious problem for works councils. The negotiation of company-specific arrangements places additional strain on already overburdened works council members. In addition, these members do not always possess sufficient knowledge, which means that arrangements cannot always be guaranteed to meet the legal standards on minimum protection.

The only clear-cut progress can be credited to the works councils. The obligation to write an annual report on the progress of the action plan is in fact an extension of the current obligation to draft an annual report on working conditions. Although the new rule does not lay down specific requirements regarding the form and content of the annual report, it does offer a formal anchorage for works councils. The annual report provides them with an opportunity critically to evaluate policy on working conditions and make adjustments where necessary. An important legal means in this respect is the works councils' formal right of approval concerning the action plan. (Jan Popma, Maastricht University)