SER proposes new system of occupational health services

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In February 2004, the Netherlands' tripartite Social and Economic Council (SER) issued an opinion, recommending a new system of organising occupation health services in companies. It proposes allowing companies to opt out of using external services, by agreement with trade unions or employee representatives.

On 20 February 2004, a large majority on the tripartite Social and Economic Council (Sociaal Economische Raad, SER) - 30 out of 33 members - issued an opinion on reform of the system of occupational health services. The advice was requested by the government, following a ruling in May 2003 by the European Court of Justice (ECJ) on the Dutch occupational health system.

At present, the Working Conditions Act (Arbeidsomstandighedenwet) obliges employers to seek the assistance of occupational health and safety (OHS) services. This obligation was introduced in 1994. According to the SER, there are several reasons to reconsider the present system.

First, the ECJ has ruled (in case C-441/01 Commission v the Netherlands) that the Dutch system does not conform to Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (NL0302102F). Article 7 of this 'framework' Directive states that 'the employer shall designate one or more workers to carry out activities related to the protection and prevention of occupational risks for the undertaking and/or establishment' (paragraph 1). Paragraph 3 states that 'if such protective and preventive measures cannot be organised for lack of competent personnel in the undertaking and/or establishment, the employer shall enlist competent external services or persons.' The Dutch law allows companies to choose between using internal and external experts to provide such services but the ECJ ruled that the Directive gives priority to the former. In practice, it appears that the Dutch transposition of Article 7 of the framework Directive generally results in companies choosing to engage the services of an external service. With respect to a number of elements of OHS policy, especially concerning absence from work and risk assessment and evaluation, a certified OHS must be engaged. The certification requirements are so high that most companies are prevented from meeting them internally and are therefore forced to seek solutions with an external service.

A second reason is changes in the Dutch social security system. More and more, the costs of sickness and disability have become the responsibility of individual employers. Therefore, the SER questions the appropriateness of the current obligation to seek the assistance of external OHS services. Employers especially resent this obligation, but there is also some discontent among employees. Finally, the present system is seen as lacking flexibility.

For these (and some other) reasons, the SER proposes the following system, under the presumption that it is the responsibility of employers and employees themselves to choose the way OHS services are organised:

• opting out of the present externally-based system should be allowed, under the condition that an agreement has been reached to this end in the sector or in the company;
• in the absence of such an agreement, the employer would be obliged to call in an OHS service:
• the relevant agreements should be checked, but only as far as rules of procedure are concerned;
• the agreements would be valid for a maximum of five years; and
• the new system would be evaluated after five years.

Opt-out agreements at sector level would have to be concluded by trade unions and employers' organisations. At company level, the parties to the agreement would depend on the number of employees (NL0309102T):

• in companies with 50 or more employees, agreements would be concluded by the employer and the works council;
• in companies with more than 10, but fewer than 50 employees, the agreement would be concluded between the employer and the 'personnel representation' (a kind of 'mini-works council'). If no representation exists, this would be done by the 'personnel meeting'; and
• in companies with less than 10 employees, the employer would have to consult individual employees or, if present, the personnel representation.

The advice was not unanimous, however. Three of the 33 SER members - the representatives of the Dutch Federation of Small and Medium-sized Enterprises (Midden en Kleinbedrijf, MKB) - wanted to stick to the original government proposal to develop a system of partial certificates for OHS services.