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Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 29) sur le travail forcé, 1930 - Pays-Bas (Ratification: 1933)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Pays-Bas (Ratification: 2017)

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The Committee notes the observations from the Netherlands Trade Union Confederation (FNV) and the National Federation of Christian Trade Unions (CNV) received on 28 August 2018.
Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Legal framework and law enforcement. The Committee previously noted the amendments adopted in 2013 to section 273f of the Criminal Code, which criminalizes human trafficking. The amendments aim, inter alia, at increasing the applicable prison sentences. The Committee also noted the statistical information provided by the Government on the number of prosecutions and convictions for trafficking in persons for the period 2010–14. According to these figures, an average of 150 suspects appeared in court every year. Convictions were imposed in 76 per cent of the cases in 2014, compared to 61 per cent in 2010. The average prison sentence had increased every year from 2010, from 617 days in 2010 to 804 days in 2013. In this regard, the Committee noted that, in its observations, the FNV acknowledged the increased efforts from the Government to combat trafficking for labour exploitation as a criminal phenomenon.
The Committee notes the Government’s information in its report that, in 2016, 220 suspects of trafficking were registered by the Public Persecutor’s Service, of which 174 were summoned to the court and 103 were convicted. Moreover, an annual fund of up to €50 million was allocated to the Inspectorate SZW (Sociale Zaken en Werkgelegenheid, Social Affairs and Employment), in order to allow an recruitment of 300 additional staff, and to expand labour inspections and criminal investigations with a focus on decent work. In particular, in addition to supervising compliance with labour regulations, the Inspectorate SZW is competent to detect and investigate labour exploitation and human trafficking cases, under the supervision of the Public Prosecutor’s Office. The Committee also notes from the 2018 Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the Netherlands (hereafter “the 2018 GRETA report”) that, in 2017, following a motion adopted by Parliament in 2016, the National Police and the Public Prosecution Service received additional funds to strengthen the fight against trafficking. One million euros was made available in 2017 and €2 million will be available each year from 2018 onwards. These funds are used to increase the number of police detectives certified to investigate cases of trafficking by 5 per cent a year and an investment in the capacity and expertise of the public prosecution service. Frontline police will be trained in recognising signs of trafficking and the Expertise Centre on Trafficking and Migrant Smuggling will also be able to hire more analysts (GRETA(2018)19, paragraph 23). The Committee notes from the observations of FNV and CNV that the National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children (hereafter “National Rapporteur on Trafficking”) estimated in her 2017 report on human trafficking that 25 per cent of the cases of trafficking involved labour exploitation in regular sectors. Moreover, referring to the labour inspection report, she states that there is a tendency of professionalization of labour exploitation by criminal organizations, with inventive ways to keep exploitation out of sight from the authorities. The FNV and CNV also indicate that they increasingly encounter situations of exploitation in several sectors at high risk, including transport, agriculture, logistics, as well as food processing and services. They are regularly alarmed by testimonies referring to excessive overtime, severe underpayment, social isolation, random fines or wage deduction, intimidation, as well as dangerous and unhealthy working environments. While taking due note of the Government’s efforts to combat trafficking in persons, the Committee requests the Government to continue to take measures to strengthen the capacity of law enforcement authorities, including the labour inspectorate. The Committee also requests the Government to continue its efforts to ensure that investigations and prosecutions are carried out against all persons engaged in trafficking in persons, and that adequate penalties are applied to perpetrators. In this regard, it requests the Government to continue providing information on the application of relevant provisions of the Criminal Code in practice, including the number of investigations and prosecutions carried out, as well as the specific penalties applied.
2. Plan of action and monitoring mechanisms. The Committee previously noted that the National Rapporteur on Trafficking was formally instituted by law. The Committee also welcomed the strengthening of the comprehensive institutional framework that had been developed over the years, including the Task Force on Human Trafficking established in 2008, and the specialization in human trafficking of public prosecutors in each Public Prosecution Service District, of police officers in all regional units, as well as of the judiciary.
The Committee notes from the 2018 GRETA report that, in 2017, the mandate of the Task Force was extended for another three years. The Task Force is expected to focus on new forms of trafficking, such as trafficking for the purpose of criminal activities, and examine the linkages between trafficking and migrant smuggling (GRETA(2018)19, paragraph 19). A new National Rapporteur on Trafficking was appointed in September 2017 and took up his duties in February 2018 (paragraph 25). However, there has been no national action plan against trafficking in the Netherlands since the expiry of the previous National Action Plan for 2011–14. On 25 May 2018, the Government approved a letter to Parliament on the development of the new National Action Plan. This Action Plan is developed in close cooperation with, and supported by, all relevant partners, both governmental and non-governmental. In order to collect inputs from these partners, 16 workshops were organized. The publication of the National Action Plan is expected by the end of 2018 (paragraph 26). The Committee therefore requests the Government to continue providing information on the measures undertaken to strengthen the overall monitoring framework aimed at combating trafficking in persons, as well as the activities of the National Rapporteur and the Task Force on Trafficking. It also requests the Government to provide information on any progress made regarding the adoption of the new National Action Plan, and to provide a copy once adopted.
3. Identification and protection of victims. The Committee previously noted from the FNV observations that proceeding a case exclusively under criminal law entailed the serious shortcoming that the possibility of effective remedies for the victim was very limited. The criminal prosecution of the perpetrator should be complemented by the administrative enforcement machinery of the labour inspectorate as well as by civil proceedings in which trade unions would play an active role. The FNV considered that a labour law approach could achieve a more effective remedy, and that this opinion was supported by the National Rapporteur on Trafficking in the ninth report. The FNV considered that when potential victims of trafficking are identified, they should urgently obtain support in the framework of their civil proceedings in order to obtain effective remedies through compliance with labour rights. The FNV stressed in this regard that trade unions had no access to these workers in order to help them achieve effective remedies.
The Committee notes from the observations of the FNV and CNV that there are significant obstacles and hurdles for victims of labour exploitation to access remedies. For example, severe infringements causing the labour inspectorate to impose financial penalties do not lead to any compensation for the worker concerned. The FNV and CNV also refer to a case of exploitation of truck drivers from Eastern European countries and the Philippines. Their drivers lived in extremely harsh conditions, worked very long hours and were paid excessively low wages. Sometimes, they were not allowed to leave their trucks for months. However, the drivers did not dare to report abuses, because they did not obtain a regular status from the hiring company. With the assistance of the FNV and a Dutch NGO, the case was reported to the Labour Inspectorate. While a few drivers were identified as victims of trafficking and provided with a regular legal status, some others in the same situation did not obtain such status and were sent back to the Philippines. The FNV considers that such a practice prevents victims from seeking the help of the public authorities.
The Committee notes the Government’s information that all victims of trafficking have the right to free legal assistance, both in criminal and civil procedures. In response to the observations of the FNV and CNV, the Government states that criminal procedural requirements apply in cases of labour exploitation. For that reason, the calculation of the arrears of wages is more complicated than in the cases of violations of the labour law. The Ministry of Social Affairs and Employment is making efforts to improve the compensation of unpaid salaries for victims in this regard. The Committee requests the Government to strengthen its efforts with regard to the identification of victims of trafficking, to ensure their access to remedies in both civil and criminal procedures, and to ensure that appropriate protection and assistance is provided to such victims. The Committee also requests the Government to provide information on the measures taken and the results achieved in this regard, including the number of victims who have been identified, who have received appropriate remedies and who have benefited from adequate protection.
Articles 1(1) and 2(1). Work imposed as a condition for receiving social benefits. The Committee previously noted that, in its observations, the FNV referred to the Participation Act adopted in 2015, according to which the entitlement to minimum social benefits is conditional on the acceptance and performance of unpaid work. No wages are paid since work is considered reciprocal to the financial benefit received. The municipalities are responsible for the administration and enforcement of the Act. Refusal to perform labour activities for the benefit of the society entails the withdrawal of 100 per cent of the benefits for at least one, but up to three months. The FNV alleged that the mandatory cut of 100 per cent of the benefits constitutes an extremely strict sanction and that, in practice, abuses had been observed in the implementation of the measure with beneficiaries performing formerly regular jobs as unpaid work. The Committee considered that in cases in which benefits do not constitute an entitlement based on previous work or contributions, but consist of a social measure granted to persons on purely social grounds, a requirement to perform some work in exchange for the allowance, would not in itself constitute compulsory labour within the meaning of the Convention, and requested the Government to provide information on the nature and duration of the activities imposed.
The Committee notes that, in its observations, the FNV once again expresses its concern at relevant provisions of the Participation Act and their implementation in practice. It observes that the compulsory work of beneficiaries is replacing regular and productive work, which leads to unfair competition. For that reason, the FNV has launched a civil suit against the PostNL (the major company providing post service) for its systematic use of a large number of recipients of social benefits to perform regular work. The FNV also indicates that it is not uncommon that the concerned persons are obliged to perform unpaid work of up to 32 hours per week for several months, sometimes up to a year, which can hardly be considered as “some work”. According to the FNV, the Netherlands Institute for Human Rights has repeatedly expressed its concern at the arbitrary criteria that municipalities use, including the length of the unpaid work, the number of weekly working hours and the disproportionate sanctions imposed on persons already living under the minimum subsistence level. The CNV additionally states that studies carried out in Rotterdam show that the implementation of “work in return for social benefits” indeed leads to crowding out of regular employment without any reintegration contribution to the recipients of social benefits. The FNV and CNV both consider that the role of municipalities in the implementation of the Participation Act needs to be better regulated.
The Committee notes the Government’s information that unpaid work is imposed only as a condition for receiving social benefits under the Participation Act, which is a social measure not based on an employment history or earlier contributions. The Municipal Executive lays down rules with respect to the duration and nature of the unpaid work, which in principle has to be of limited duration and scope, must be socially useful and shall not lead to displacement in the labour market. Moreover, single parents and people with caring responsibilities are exempted from this obligation. Regarding employee insurance schemes, the benefit is granted based on earlier work, for which there is no requirement of performing unpaid work, but an obligation to accept appropriate paid work. The Committee therefore requests the Government to provide detailed information on the implementation of the Participation Act in practice, such as relevant arrangements applied in different municipalities, including the number of persons performing unpaid work, the types of work performed, working hours and duration of the unpaid work, as well as the level of benefits received by concerned persons.
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