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In July 2005, the Dutch government accepted a recommendation from the tripartite Social and Economic Council (SER) on reform of the Working Conditions Act. This involves giving the social partners greater responsibility in the implementation of health and safety at work and cutting the number of rules and regulations, by distinguishing between objectives and means. The government will take responsibility for the objectives, with the Labour Inspectorate monitoring compliance, and employers and employees becoming jointly responsible for the methods used to achieve the objectives.
In October 2004, the government asked the tripartite Social and Economic Council (Sociaal Economische Raad, SER) to issue a recommendation on suggested changes to the 1998 Working Conditions Act (Arbeidsomstandighedenwet, Arbowet) - the main item of legislation regulating health and safety at work (NL9812112F). The government’s main aim was to reduce drastically the number of regulations and to lessen the administrative and financial burden (NL0412102F and NL0408102N). One way of achieving this would be to target the legislation at the 'more serious' health and safety risks and pay less attention to the less significant ones. The government argued that primary responsibility for ensuring good working conditions rests within companies themselves and that more leeway should thus be given to employers and employees to develop this responsibility. It therefore proposed deregulation and the promotion of self-regulation, with special attention to the position of small and medium-sized enterprises.
In June 2005, the SER issued a unanimous recommendation on changes to the Working Conditions Act. It did not subscribe to the government's distinction between more and less serious risks. It did, however, support simplification of the regulations, which should be achieved by introducing a distinction between the public setting of objectives and the private determination of the methods of achieving them. The social partners should be given greater responsibility in determining these methods and become more involved in their implementation.
The government accepted the SER’s proposal in July 2005 as the basis for an amended Working Conditions Act, and has given up the idea of distinguishing between more and less serious risks.
New system
The most important structural change proposed by the SER relates to a distinction between the public setting of goals and their private attainment. The government will set concrete, scientifically underpinned objectives, to which health and/or safety limit values are attached, describing the level of employee protection to be achieved at work. The methods of achieving these objectives, though standards and regulations on processes, should be removed from the Working Conditions Act and its supplementary provisions. Additionally, objectives that cannot be enforced should be done away with and unclear rules clarified. Standards for processes should be agreed at companies in areas where no enforceable objectives can be formulated.
Employees and employers will jointly determine how to attain the objectives set by government. These methods will be established in a 'working conditions catalogue' describing the methods and means recognised by employer and employee representatives. From this selection, a choice can be made as to how to achieve the objectives. The catalogue, which may be formulated at sector level, could include descriptions of best practices, as well as techniques. The catalogue is not to be exhaustive or restrictive.
In its response to the SER’s recommendation, the government welcomes the fact that the Council accepts a less prominent role for government, coupled with a greater role for employers and employees at company level and the social partners at central level. The government says that it is enthusiastic about the proposed new working conditions system. Removing detailed regulations governing methods from the health and legislation could cut the number of rules by two-thirds - though this applies only to domestic Dutch legislation, not measures implementing EU legislation. The responsibility that would be assumed by the social partners in terms of how the prescribed objectives can be achieved appeals to the government (NL0501103F). It holds the promise of broad-based support and greater practical feasibility, in which context the government has expressed its preference for a sector-wide approach as being the most suitable level at which to determine the methods to be included in the new working conditions catalogue.
Enforcement
In the proposed new structure for the regulation of working conditions, the Labour Inspectorate (Arbeidsinspectie) will be awarded a more clearly defined position of control and monitoring over the prescribed objectives, the limit values and the process standards as specified by government in the objectives. The new working conditions catalogues will form an important frame of reference with respect to enforcement. Moreover, the SER believes that a more active approach to enforcement on the part of the Labour Inspectorate should not be limited to negative sanctions alone, but could also offer incentives. The SER rejected the government's idea of 'naming and shaming' companies with a poor record, but did agree with the proposed doubling of the maximum fines that can be imposed. The government will take these SER recommendations on board, and will try to improve predictability in the actions of the Labour Inspectorate, which should serve to lighten noticeably the burden borne by employers.
EU legislation
The SER sees its proposed changes to Dutch health and safety legislation as an interim step on the road to establishing a situation in which EU legislation in this area is similarly structured. In a long-term perspective, it suggests, a 'level playing field' could be established in Europe providing an equal level of protection for all employees. Partly for this reason, the SER proposals include scrapping unclear and 'over-detailed' Dutch legislation on working conditions. The government backs this move, but states that EU legislation directed at achieving an equal level of protection for all employees is very much a long-term goal.
Commentary
Within the next two years, the State Secretary of Social Affairs and Employment, Henk van Hoof, intends to cut employers' administrative obligations of employers derived from working conditions legislation by at least 27% (cutting costs by EUR 300 million). To this end, the number of working conditions regulations are to be reduced by two-thirds. He can count on the SER’s support.
It was noteworthy in this case that, in addition to responding to the government proposal on reform of the Working Conditions Act, the SER in fact tabled its own proposal. Furthermore, the government now intends to adopt the SER’s recommendation as the basis for new legislation, even though this recommendation deviated from the government’s original proposal in one important respect. The fact that the SER proposes cutting the amount of regulation by a different system that rejects the government's idea of distinguishing between higher and lower risks, in favour of distinguishing between publicly-set objectives and privately-organised methods of achieving these goals, appears not to have deterred the government from accepting the SER's advice. The distinction between public objectives and private means makes sense, in particular because the social partners will have the responsibility for determining the means. However, it remains to be seen if the distinction between objectives and means will deliver the desired level of regulation. These measures affect only domestic Dutch legislation; EU Directives will remain untouched. The latter is also considered desirable in the medium to long term when the same working conditions legislation should apply throughout Europe. (Marianne Grünell, HIS)