Working Conditions Bill aims to decentralise policy to company level

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In February 1998, a legislative proposal to amend the Working Conditions Act was submitted to the Upper (Second) Chamber of the Dutch Parliament. The Government aims to ensure that the implementation of its policy on working conditions is carried out at company level as far as possible.

In March 1996, the Dutch cabinet published a policy document called Rethinking working conditions policy and the Working Conditions Act (nota Heroriëntatie arbobeleid en Arbowet). With this document, the Government sought to increase the effectiveness and efficiency of its policy on working conditions, raising the level of responsibility of employers for policies relating to working conditions and sickness absence from work. Similarly, the Government wishes to create greater opportunities for employers and employees to reach agreements themselves regarding the details of working conditions policy (that is, room for "customising" this policy). This standpoint is based on earlier governmental decisions which assigned greater financial responsibility to employers regarding sickness absence and working conditions (NL9710138F).

Much of this has been endorsed by the Social and Economic Council (Sociaal Economische Raad, SER), a body which contains representatives from both employers' and employees' organisations. Parties within the SER have proposed that certain working conditions regulations should be implemented at company level in ways that deviate from the letter of the law. However, in order to apply an alternative strategy, there must be a consensus between management and the employees about this. According to the SER, this consensus must either take the form of a collective agreement or consist of a written agreement between the employer and the works council.

Legislative proposal

On 7 February 1998, the Government submitted a legislative proposal to amend the Working Conditions Act (Arbeidsomstandighedenwet) to the Upper (Second) Chamber of the Dutch Parliament (Tweede Kamer 1997-8, Wetsvoorstel Arbeidsomstandighedenwet 1998, 25 879). The proposed legislation is largely consistent with the current Act: employers must ensure a very high level of safety and health protection, and must promote the welfare of their workforce. In order to implement these guidelines, a periodic risk inventory and evaluation must be first drawn up to form the basis of a working conditions and sickness absence policy. The outcome of this policy must be regularly monitored, and if necessary, adapted. This "working conditions cycle" has remained largely intact under the new proposal.

The Bill contains mostly general provisions. The specific rules which have traditionally played an important part in the area of working conditions are not included in the Working Conditions Act itself, but in the "Working Conditions Decree" based on the Act and in the working conditions regulations. The cabinet's goal of enabling customisation is contained in Article 16 of the Bill, and follows the SER proposal mentioned above. Regulations may also be implemented which depart from the provisions of the Working Conditions Act if agreement to this effect is reached with the trade unions, the works council or the personnel forum (personeelsvertegenwoordiging- the new "mini works council" for small undertakings - NL9802162N).

Working conditions services

The assistance of a certified "working conditions service" (arbodienst) is already required for various aspects of the employer's working conditions policy. This service supplies employers with independent expert advice, and must be called in when drawing up the mandatory risk inventory. It also provides absence guidance to sick employees, conducts labour-health research, carries out medical examinations in the context of selection, and holds office meetings to discuss working conditions. Work councils have a right of consent concerning how the expert assistance is provided, meaning that they always have a say in the content of the contract with the working conditions service, and, presumably, the choice of the service itself.

Trade unions have begun critically to examine these working conditions services. In early February 1998, the Dutch Trade Union Federation (Federatie Nederlandse Vakbeweging, FNV) opened up a complaints line, which received about 100 calls in the first month alone. According to the FNV, doctors at these working conditions services sometimes force sick employees back to work, and confidential information is sometimes passed on from doctors to personnel officers. On the other hand, the head of the trade association of working conditions services feels that out of the two million cases of illness reported each year, 100 complaints is certainly an acceptable number.

Enforcement

During the course of piecing together the new legislative proposal, lengthy discussions took place about the best way to ensure compliance with the rules regarding working conditions. The proposal defines two kinds of sanctions depending on the severity of the violation. The Labour Inspectorate (Arbeidsinspectie) is responsible for carrying out enforcement. Serious violations regarding such matters as significant health and safety risks, personal injury or repeated offences could result in criminal prosecution. The "administrative fine" is a newly developed penalty, and is expected to reduce the time between the date that the violation was committed and the governmental response. Less serious violations will result in a NLG 10,000 fine, as opposed to NLG 25,000 for serious offences.

A recent study by the Hugo Sinzheimer Institute has shown that the Labour Inspectorate is unable to address all cases of non-compliance ("Handhaving van de Arbeidsomstandighedenwet", WGA Hazewindus and ACJM Wilthagen, in Commissie Bestuursrechtelijke en Privaatrechtelijke Handhaving, Handhaven op niveau, WEJ Tjeenk Willink, Deventer (1998, ISBN 90-271-4840-6). However, the people interviewed during the study differed in their opinions regarding both the reasons behind inadequate enforcement and possible solutions. A notable result is that works councils, the Labour Inspectorate and smaller companies are all less than enthralled about the element of customisation which has become such an important part of the legislative proposal, and expect more clarity in the form of concrete and accessible standards.

The new Works Councils Act

Co-determination in the area of working conditions is addressed in the Works Councils Act (WOR). It is therefore worth noting some recent changes made to the WOR which took effect on 4 March 1998 (NL9802162N). From now on, the works council has a right of approval in cases where management wishes to modify arrangements regarding absence. Management must also gain the approval of the works council concerning decisions on absence registration. Moreover, a previous limitation - that the right of approval does not apply if the Labour Inspectorate issued a demand or a directive to the employer - has also been abolished. On the other hand, the trade unions will continue to have priority over the works councils: the right of approval will not apply if the subject is already substantively covered by the collective agreement.

Commentary

The legislative proposal for a new working conditions Act fits seamlessly into the general trend in the Netherlands towards decentralising decision-making about terms and conditions of employment. Although the objectives surrounding working conditions regulations are still legally defined, the way in which these objectives are reached may be up to the different parties involved at company level. The extent to which this will actually transpire remains to be seen. Works councils in particular, including those in large companies, often feel ill-equipped to act as a bone fide negotiating party. In some respects, the cabinet's ideal of decentralisation has come into conflict with European regulation. The cabinet has already announced that it will address this problem at a European level.

An interesting point is that, in the Working Conditions Act and its subsequent case law, "new" issues such as work-related stress and repetitive strain injury are still overshadowed by more "classic" subjects such as noise and lifting heavy loads, although studies have shown that work-related stress in particular is a growing problem (NL9802163N). In the meantime, however, the trade unions have given work-related stress a prominent place on the collective bargaining agenda. (Robbert van het Kaar, HSI)

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