Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 97) sur les travailleurs migrants (révisée), 1949 - Pays-Bas (Ratification: 1952)

Autre commentaire sur C097

Observation

2012

Demande directe

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The Committee notes the joint observations of the National Federation of Christian Trade Unions (CNV) and the Netherlands Trade Union Confederation (FNV) received on 30 August 2023, and the Government’s reply received on 26 October 2023.

Article 1 of the Convention. Migration flows. The Committee notes the Government’s indication, in its report, that a total of 401,351 persons immigrated to the Netherlands in 2022. According to the Central Bureau of Statistics (CBS), 63.9 per cent of those immigrants had an European background, mainly from Central and Eastern Europe, with labour being the most common motive for immigration. According to CBS data, the share of immigrants in work remains lower for non-European Union (EU) nationals: of all immigrates from outside the EU/EFTA (European Free Trade Association) who entered the Netherlands in 2017 and were still there after one year, 17.3 per cent were employed or self employed, compared to 51 per cent for all EU/EFTA nationals. In 2022, a total of 32,370 work permits were issued out of which 76.3 per cent were issued for highly skilled migrants or EU Blue Card holders. The Committee requests the Government to continue to provide statistical information on: (i) the employment of migrant workers (European Union citizens and third-country nationals, distinguishing between third-country nationals with temporary, long-term and permanent residency permits) in the various economic sectors, disaggregated by sex and nationality, where available; and (ii) the number of permanent Dutch emigrants.

Information on national policies, laws and regulations. The Committee welcomes the Government’s indication that, in January 2022, the Foreign Nationals (Employment) Act (Wav) was amended with two main goals, namely: (1) extending the maximum duration of the work permit from 1 to 3 years; and (2) introducing compulsory wire transfers for the payment of remuneration to workers by prohibiting cash payments. The Government adds that several steps have been taken to ensure the protection of posted workers by transposing Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018, namely by: (1) amending the Terms of Employment of Posted Workers in the European Union Act (WagwEU) and Minimum Wage and Minimum Leave Allowance Act (WML); and (2) launching an online notification portal, in March 2020, to better identify when posted workers are in practice not receiving the employment conditions that they are entitled to. Furthermore, on 1 June 2023, the national legislation to implement EU Directive 2020/1057 also entered into force for posted workers in the road transport sector. The Committee further welcomes the Government’s indication that several information campaigns are being carried out by the Ministry of Social Affairs and Employment so that both employers and workers know their rights and obligations. The Committee however notes the Government’s statement that although more posted workers were registered in 2022, underreporting is still likely as figures only rely on data provided by the service providers and service recipients through the online notification portal. The Government adds in its reply that several measures are being implemented to get a better overview of migrant workers, including an investigation on how a duty of care on the part of employers in the registration process of migrant workers can be shaped. In that regard, the Committee notes that, in their joint observations, the CNV and the FNV express concern about the under-registration of posted workers which result in large governance gaps and a lack of accurate overview of the number of migrant workers in the Netherlands. The CNV and the FNV also remain concerned about exploitative working conditions of posted workers in practice as well as the lack of effective supervision, including regarding the length of postings. The Committee notes with concern this information and refers to its 2022 observation on the application of the Labour Inspection Convention, 1947 (No. 81), where it noted that the FNV and the CNV reiterated that the labour inspectorate is neither authorized nor sufficiently equipped to ensure the application of the collective agreements in relation to temporary posted workers. Noting the recent legislative developments, the Committee asks the Government to take steps to ensure thatposted migrant workers benefit from the protection provided for by the Convention, in practice. It further asks the Government to provide information on: (i) any awareness-raising activities carried out for employers and posted migrant workers regarding their rights and obligations with the aim of ensuring compliance with the legal requirements; (ii) the number of posted migrant workers registered in the Netherlands; and (iii) any assessment carried out of the impact of such measures, including the number of violations registered as a result of non-compliance with the WagwEU and the WML, sanctions imposed and remedies granted. The Committee asks the Government to continue to provide information on national policies, laws and regulations elaborated and implemented to give effect to the provisions of the Convention.

Article 3 and Annex I, Article 3. Measures against misleading propaganda and supervision of private agencies. The Committee notes the Government’s indication that, in October 2020, the Migrant Worker Protection Task Force made about fifty recommendations, in its report entitled “Not Second-Class Citizens”, for tackling abuses against migrant workers. According to the report, migrant workers often work for minimum wage, on flexible contracts and for temporary employment agencies, in sectors and occupations where native Dutch workers are difficult to find, and are often exposed to retention of wages and withholding of housing costs. The Committee welcomes the Government’s statement that it has decided to implement the Task Force’s recommendations as a matter of great urgency, as too many abuses are still taking place against migrant workers. In that regard, the Committee notes that the Bill on the Authorisation of the Supply of Labour was submitted to the House of Representatives in October 2023 in order to set up a mandatory certification system for temporary employment agencies operating in the Netherlands, regardless of whether they are established in the Netherlands or in another country. The Committee however notes that, in their joint observations, the CNV and the FNV highlight that, notwithstanding the Government’s proclaimed intentions, the situation is still deeply disturbing mainly as a result of the lack of public enforcement of existing laws and regulations. The Committee asks the Government to take effective steps to ensure adequate protection for migrant workers recruited or placed in its territory by private employment agencies in order to prevent them from becoming victims of misleading propaganda. It asks the Government to provide information on: (i) any measures implemented to that end, in particular as a result of the recommendations made by the Migrant Worker Protection Task Force; (ii) any legislative developments regarding the setting-up of a mandatory certification system for temporary employment agencies operating in the Netherlands, and any assessment made of its impact; and (iii) the number of prosecutions initiated against those making use of misleading propaganda to recruit migrant workers, and the penalties imposed.

Article 6. Equality of treatment, including accommodation The Committee notes that, in their joint observations, the CNV and the FNV recall their long established concern regarding EU migrant workers as regards their less favourable working and housing conditions, and deductions from their wages, while highlighting that a very disturbing development relates to abusive situations concerning third-country nationals from non-EU countries (Central and East Asia and South America), whose employers obtain work permits through other EU member states. The CNV and the FNV add that the Government acknowledges that these migrant workers are often in even more vulnerable situations, but does not ensure the enforcement of existing regulations. In that regard, the Committee notes that the Government ackowleges in its reply to the observations from the trade unions that thrid-country nationals are increasingly being posted to the Netherlands through other EU Member States, while highlighting that other EU countries are also facing the same issue. The Government adds that it is looking to work together with those countries in order to be stronger in the European approach and better cooperate with implementing organizations inside and outside the Netherlands. A mapping out of the various posting options for third-country nationals is being carried out in order to examine wether these are legal or whether there are bogus arrangements. As regards more particularly accommodations for migrant workers, the Committee notes that, in their joint observations, the CNV and the FNV indicate that, very often, the rented accommodation does not consist of an apartment or even a separate room, but of a bed that can be rented simultaneously to several workers who work and sleep in shifts. Private initiatives for certification and auditing have been developed but as the national legislation regulating housing and rent control is not applicable to these situations, the housing conditions of migrant workers are so far below any standard. The trade unions ask for the Government to put an immediate end to this situation while ensuring public supervision of accommodations rented to migrant workers. The Committee notes the Government’s statement that the Netherlands Labour Authority (NLA, formerly the Labour Inspectorate – SZW) has no role in the supervision of housing, but the Foundation SNF audits on a yearly basis the accommodations offered to migrant workers. In 2022, 10,000 accommodations were audited and since 2021, it is mandatory to have an SNF information card in the accommodation with relevant (contact) information in Bulgarian, English, French, German, Polish, Romanian and Spanish. The Government adds that this is probably an important explanation for the increase of complaints that were filed in 2022 (188 compared to 48 in 2020). The Committee notes with interest that the Good Landlord Act, which came into force on 1 July 2023, introduces a national basic standard for good landlordship in the shape of general rules, which landlords and rental agents must adhere to. In relation to migrant workers, who are defined in the Act as EU nationals, the general rules concern the prevention and combating of discrimination and intimidation, the obligation to put the tenancy agreement in writing and separately from the employment contract, and the obligation to inform the migrant worker about their rights and obligations with regard to the rented property in a language that the migrant worker can understand. Municipalities must have a hotline for complaints about landlords and, from 1 March 2024, a permit requirement will be introduced for renting accommodations. The Committee further welcomes the Government’s statement that, as a result of the recommendations made by the Migrant Worker Protection Task Force who concluded that there were too few housing sites for labour migrants and too many sites of substandard quality, a Bill will be submitted to Parliament in 2023 to make the point based value system mandatory, while including the rental of rooms or accommodations to migrant workers. This mandatory point-based value system would determine the maximum rent for rented rooms and municipalities, together with the rent tribunal, would be tasked with the enforcement of the maximum rent. The Committee however notes, from the statistical information provided by the Government, that the NIHR registered 59 cases of reported discrimination in the workplace from persons with a migration background in 2022, compared to 27 cases in 2019 (i.e a 118 per cent increase) and issued 24 decisions regarding discrimination on the ground of nationality in the workplace in 2022, compared to 5 in 2019 (i.e. a 380 per cent increase). Welcoming the recent legislative developements regarding the improvement of housing standards and conditions for EU migrant workers, the Committee asks the Government to provide information on: (i) any additional steps taken to ensure that, in practice, no less favourable treatment is applied to migrant workers, including third-country nationals from non-EU countries, than that applied to its own nationals, in respect of the matters set out in Article 6(1)(a)–(d) of the Convention, in particular remuneration, social security and accommodation; (ii) any assessment made of the measures implemented to that end so far; and (iii) the number of complaints about landlords registered by hotlines set up by municipalities and cases of unequal treatment against migrant workers dealt with by the labour inspectors, the NIHR, the courts or any other competent authorities and the penalties imposed.

Awareness-raising and enforcement. The Committee notes the Government’s statement that the labour inspectorate (NLA) is selective in its supervision, as it determines its priorities on the basis of risk analysis. The Government adds that the NLA cannot provide numbers regarding less favourable treatment of migrant workers, as it does not keep records that distinguish between migrant workers and nationals. In that regard, the Committee notes that, in their joint observations, the CNV and the FNV: (1) remain concerned about the lack of measures taken by the Government to ensure the effective enforcement of existing laws and regulations, in particular through the NLA; and (2) express specific concerns regarding the working conditions of migrant workers employed as care and domestic workers by private households, as the current legislation prohibits labour inspectorate to entry into dwellings. In that regard, the Committee notes the Government’s reply that, in some cases, the labour inspectorate is allowed to entry into dwellings. The Government adds that several initiatives are planned to enhance a better access to justice for migrant workers, including by: (1) ensuring a better access to the Legal Helpdesk (‘Juridisch loket’); and (2) making legal proceedings simpler and faster through the setting up of ‘proximity judges’ in a number of districts participating in the experiment. The Committee asks the Government to provide information on: (i) the measures taken or envisaged to strengthen the NLA and other law enforcement institutions in order to ensure that legislative provisions and regulations are adequately enforced, especially in sectors in which migrant workers are mostly employed, including domestic work; (ii) the activities undertaken by the labour inspectorate to that end, including awareness-raising activities for employers and migrant workers on their rights and obligations; (iii) the impact of the measures implemented with a view to ensuring a better access to justice for migrant workers; and (iv) the number and nature of violations detected by or reported to the NLA or other competent authorities, and the sanctions imposed.