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Health and Safety Representation

In the Netherlands, the works council is the key body representing employees’ interests in the area of health and safety, which it deals with alongside its many other responsibilities. It can delegate its powers to a health and safety committee but a majority of the members of this committee must also be works council members.

Basic approach at workplace level

 

The employer must ensure that the health and safety of employees is protected and is particularly required to operate a policy aimed at preventing or eliminating “employment-related psychosocial pressure”. There should be an active exchange of information between the employer and the employee representatives on working conditions.

 

Employee health and safety bodies

 

The key body representing employees in the area of health and safety is the works council (ondernemingsraad) or in smaller organisations the personnel delegation (personeelsvertegenwoordiging), sometimes also known as the staff representation body, where this exists. Both bodies also have a wide range of other responsibilities.

 

In addition works councils will often set up a standing committee (vaste commissie) to deal with health and safety issues. This committee is normally known as a safety, health, well-being and environment committee (Veiligheid, Gezondheid, Welzijn en Milieu Commissie – VGWM-commissie), although sometimes it does not include the environment. A majority of the members of the committee must also be members of the works council.

 

Numbers and structure

 

Works councils should be set up in all organisations employing at least 50 people and its size increases with the number employed (see table).

 

Number of employees

Number of works council members

50 to 100

5

100 to 200

7

200 to 400

9

400 to 600

11

600 to 1,000

13

1,000 to 2,000

15

With a further two members for every extra 1,000 employees, up to a maximum of 25

 

The works council, which is a purely employee body, should elect both a chair and a deputy chair.

 

A personnel delegation should be set up in organisations with between 10 and 49 employees, where the employer decides to set it up, or where a majority of employees request it.

 

The decision on setting up a health and safety committee is taken by the works council, although a majority of the committee’s members must be works council members and it is also an entirely employee body.

 

Research by the European Agency for Safety and Health at Work (EU-OSHA) in 2014 found that 12% of workplaces in the Netherlands had a health and safety committee. This is below the EU-28 average of 21% (The figures are for workplaces with five or more employees.)[1] However, a separate EU-OSHA report on worker participation in 2017 suggested that 2014 results might be based on some “confusion” between different forms of employee representation, leading to the figures for separate health and safety committees being overstated.[2]

 

Separate national figures for 2016 found that only 8% of workplaces had either a works council (OR) or a personnel delegation (PVT). However, the frequency with which they were found increased with the number employed. While only 3% of workplaces with fewer than 10 employees had a personnel delegation, this increased to 18% for workplaces with 10 to 49 employees. At workplaces with 50 or more employees, where the law states that works councils must be established, 71% had them.[3]

 

Tasks and rights

 

The employer should consult the works council or personnel delegation on issues relating to “working conditions policy” (health and safety) and its implementation. The legislation states that this should involve “an active exchange of information”. Where there is no employee representation, the employer should consult employees directly.

 

Importantly, the works council can, if it chooses, delegate all or part of its powers in the area of health and safety to the committee, which can then exercise all the rights set out below. The only exception is the power to institute legal proceedings.

 

The works council (or health and safety committee – see above) or personnel delegation has the right to have confidential discussions with labour inspectors when they visit the workplace, as well as to accompany them in their inspections, unless this would hinder the inspectors’ work. The works council or personnel delegation have the right to submit requests to the health and safety authorities that they should intervene and they should also be sent reports produced by the inspectors.

 

The works council or personnel delegation should also be informed by and cooperate with the employer’s own health and safety experts about measures that have been taken or are being planned to improve working conditions as well as how they are implemented. The works council or personnel delegation should also be given a copy of any advice on risks and risk assessment and the results of employees’ medical examinations provided by the occupational physician, although in a form which prevents individuals being identified.

 

Specifically, the legislation provides a clear role for the works council in being informed about, and having the opportunity to express its view on, a wide range of potential hazards, including asbestos, biological agents, noise and radiation.

 

The works council’s agreement is required where the employer wishes to make changes to internal regulations relating to working conditions. And, since legal changes in July 2017, the works council or personnel delegation has the right to approve the appointment of the prevention worker (preventiemedewerker), an employee who has a key health and safety role (see below).

 

More generally, in order to provide greater flexibility, employers and the works council can reach agreements on health and safety issues, which differ from the precise requirements of the legislation, provided there is no worsening in the level of protection.

 

The requirement for the expert health and safety service, occupational physician and prevention worker to cooperate with the works council or personnel delegation in health and safety issues has been strengthened by the 2017 legal changes.

Frequency of meetings

 

The works council itself decides how frequently both it and the health and safety committee – if one has been set up – will meet. However, it must also meet the employer at least twice a year to discuss the general operation of the organisation.

 

Election and term of office

 

Works council members are elected by the whole workforce on the basis of lists of nominations from the unions present in the workplace or nominations from the non-union members. The term of office is normally three years, although it can be shortened to two or extended to four.

 

The personnel delegation, where it exists, is elected by a direct ballot of all employees.

 

It is up to the works council to decide whether to set up a committee to cover health and safety (it can also set up committees on other issues). This is done by a formal resolution and the works council must also inform the employer in writing of the intention to do so, as well as setting out the duties, composition, rules of procedure and powers of the committee. The works council chooses the membership of the committee and the membership ends with the term of office of the works council. 

 

Resources, time off and training

 

The exact amount of time off for members of the works council and the health and safety committee is to be agreed with the employer, but as a minimum members of the works council and the health and safety committee are entitled to 60 hours paid time off per year, in addition to time in meetings.

 

The employer is required to provide the facilities necessary for the works council and the health and safety committee, where this has been set up, to function. Both the works council and the health and safety committee are entitled to invite experts to their meetings and to ask the expert to provide written advice. These experts are paid by the employer, provided he or she has been informed in advance.

 

Members of the works council and the health and safety committee are also entitled to paid time off for training. Employees who are just members of the health and safety committee are entitled to three days a year; those who are just members of the works council are entitled to five days a year; and those who are on both the works council and the health and safety committee are entitled to eight days a year. The Works Council Act contains provisions for an employer levy to pay for the training of works council members.

 

Protection against dismissal

 

Members of the works council and the health and safety committee, if it has been set up, should not be disadvantaged because of their role. Works council members and members of the health and safety committee can only be dismissed if the worker himself or herself agrees in writing, or if it has been authorised by a magistrate. This authorisation will only be given if there are serious reasons for immediate dismissal or the company, or part of it, closes. Any connection between the dismissal and works council membership makes the dismissal unlawful.

 

Other elements of workplace health and safety

 

Employers are obliged to obtain assistance from an expert health and safety service (arbodienst) or an occupational physician in carrying out the health and safety tasks that the legislation requires. This includes carrying out a risk assessment, advising employees who are unable to work because of sickness and conducting an occupational health review. This expert assistance can be provided internally or it can be provided by an external qualified occupational health service. In both cases the arrangements must be agreed by the works council or personnel delegation. Where it is provided externally a “basic contract” must be drawn up, setting out the rights and duties of the two sides. Changes to the legislation introduced in July 2017 added additional elements to this contract, such as the right for the occupational physician to visit the workplace and right of an employee to make a complaint about the health and safety service.[4]

 

As well as an expert health and safety service or occupational physician, the employer must also appoint a so-called “prevention worker” (preventiemedewerker). This is an individual who is not a health and safety expert (as defined by the legislation), but who supports the employer in health and safety matters. In smaller companies, those with no more than 25 employees, the employer can take this role. Since 2017, the works council or personnel has the right to approve the appointment of this prevention worker.

 

Organisations can also decide to appoint a so-called person of confidence (Vertrouwenspersoon), whose role is to give support to fellow employees who have suffered violence, bullying or sexual harassment. It is not obligatory to appoint such a person, and, where it is done, the ministry responsible (see below) suggests that the works council is consulted.[5]

National context

 

The ministry responsible for health and safety at work is the Ministry of Social Affairs and Employment (Ministerie van Sociale Zaken en Werkgelegenheid). The body responsible for ensuring compliance with Dutch health and safety law is the Ministry’s Inspectorate (Inspectie SZW) which also monitors compliance with labour and social security law more generally.

 

Trade unions and employers are able to influence health and safety policy at national level through their membership of the Social Economic Council (Sociaal-Economische Raad– SER) as well as in the Council’s health and safety committee, the Committee for Working Conditions (Commissie Arbeidsomstandigheden – known as ARBO). The Social Economic Council is a tripartite body with 11 members from the unions, 11 from the employers and 11 so-called “crown” members, who are independent experts nominated by the government. It has a very important consultative role.[6]

 

Dutch health and safety law (Working Conditions Act, 1999) was amended in 2007 to include a specific reference to “employment-related psychosocial pressure” (psychosociale arbeidsbelasting). It requires the employer to operate a policy with the aim of preventing this, or limiting it, if prevention is not possible (Article 3.2). 

Key legislation

 

Act of 18 March 1999, containing provisions to improve working conditions (Working Conditions Act), as amended

Works Council Act 1971, as amended

 

Wet van 18 maart 1999, houdende bepalingen ter verbetering van de arbeidsomstandigheden (Arbeidsomstandighedenwet - Arbowet)

Wet op de ondernemingsraden 1971

 

[1] Second European Survey of Enterprises on New and Emerging Risks, European Agency for Safety and Health at Work, 2016

[2] Worker participation in the management of occupational safety and health — qualitative evidence from ESENER-2: Country report – the Netherlands, by Jan Popma, Bernard van Lammeren, EU-OSHA 2017

[3] Arbo in Bedrijf 2016, Inspectie SZW, March 2016

[4] See OSH system at national level – Netherlands, by Jan Harmen Kwantes and Wendela Hooftman, OSH Wiki, https://oshwiki.eu/wiki/OSH_system_at_national_level_-_Netherlands

[5] See https://www.arboportaal.nl/onderwerpen/vertrouwenspersoon

[6] For more information on the national context see  OSH system at national level – Netherlands, OSH Wiki

L. Fulton (2018) Health and safety representation in Europe. Labour Research Department and ETUI (online publication). Produced with the assistance of the Workers' Interest Group of the Advisory Committee for Safety and Health at Work (of the EU Commission). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.