Worker participation relates to the involvement of workers in the management decision-making processes. In this article attention is focused on worker participation related to occupational safety and health in the Netherlands. Worker participation can refer either to direct or indirect participation by the worker. Indirect participation involves employee representation, while direct participation relates to individual involvement in management’s decision-making processes.
In the Framework Directive 89/391/EEC two articles (art. 10 and 11)  are explicitly dedicated to the involvement of workers in occupational safety and health issues. At the same time Directive 2002/14/EC  provides a general framework for informing and consulting employees in the European Community. Both directives have been implemented in the Dutch legislation on occupational safety and health.
This article describes the role of workers and workers representatives on three levels: national, sectoral and company level, with special attention to occupational safety and health issues. As the Dutch legislation pays no attention to direct forms of participation, it describes workers indirect participation.
Already in Article 6 of the European Social Charter of 1961 a right of collective bargaining is mentioned to “to promote joint consultation between workers and employers" . This is a very general provision for the countries involved in the charter as they include a variety of different forms of worker participation. The Netherlands was a contracting party of this European Social Charter.
The International Labour Organization (ILO)  is a tripartite organisation. Within the ILO, labour unions have the role as representatives of workers trying to establish international treaties and recommendations on issues such as worker participation and occupational safety and health. Regulatory provisions on worker participation are contained in Article 19 of ILO Convention C-155  . This convention has been ratified by the Netherlands. Article 12 of the (non-binding) ILO Recommendation R-164  describes more specific rights and possibilities for employees and their representatives with respect to worker participation. Recommendation R-129 contains general recommendations on communication between employers and workers .
The European Directive 2002/14/EC  establishes a general legal framework for informing and consulting employees in the European Community. The directive makes it a requirement for employers to inform and consult employees via the workers’ representatives in the company, in three specific areas:
- The recent and probable development of the undertaking's or the establishment's activities and economic situation;
- The situation, structure and probable development of employment and any anticipatory measures envisaged;
- Decisions likely to lead to substantial changes in work organisation or in contractual relations.
The directive was transposed into Dutch legislation by a relatively small change of the Dutch Works Council Act of 2 December 2004 .
The main legal source for worker information and consultation on Occupational Safety and Health (OSH) on a European level is the OSH Framework Directive 89/391/EEC . Worker participation is a fundamental part of the OSH management framework promoted in this directive. In the Netherlands this Framework Directive was transposed into the Working Conditions Act, by a change of this Act in 1994. .
The main elements of workers’ consultation and workers' representative rights in the Netherlands can be found in the Works Council Act . Of course these rights are mentioned in other acts as well, but they are not as comprehensively laid out as in the Works Council Act. Some specific rights on workers’ participation can be found in the Working Conditions Act  , the Working Hours Act  and other public law acts.
Regarding forms of worker participation, all the Dutch national public law acts to which we refer focus on indirect worker participation. Forms of direct participation are hard to find in the public law acts. It is up to the employer to decide how the organisation handles direct participation.
In the Netherlands there is a private infrastructure that allows social dialogue to develop. This social dialogue in the private sector consists of three levels, each discussed in the next section:
- Sectoral and;
In the Netherlands there are two consultative bodies that provide a forum for advice and dialogue between the social partners on socio-economic federal matters : the Social and Economic Council of the Netherlands  and the Labour Foundation .
The Social and Economic Council
The Social and Economic Council (Dutch acronym: SER) was established in 1950, by the Industrial Organisation Act of 27 January 1950 . Its primarily function is that of advisory to the Dutch government and parliament on a variety of social, economic and financial issues. The SER is a very influential body, and very often referred to as a typical example of the so-called Dutch ‘polder’-model.
Representatives of the Dutch government and most important employers’ and workers’ organisations are member of the SER. The SER consists of 33 seats; these seats are equally divided between representatives of employers’ organisations, trade unions representatives and the ‘crown members’.
Crown members are appointed by the Dutch government but not accountable to the government. The crown members are often university professors and specialists in law, sociology, finance and economy. Two crown members are always members of the SER because of their function: the president of the Dutch Central Bank (Dutch abbreviation: DNB)  and the director of the Netherlands Bureau for Economic Policy Analysis (Dutch abbreviation: CPB) .
The SER has the right to make advisory reports on their own initiative, but in most cases the SER is asked by the Dutch government to come forward with an advisory report on a specific socio-economic topic. This can vary from education issues to social security issues. All the advisory reports can be searched and accessed online .
In the past a separate OSH Council existed however, nowadays the SER is also the main national advisory council on all OSH issues. The SER produce advisory reports regarding OSH issues; these OSH advisory reports have had and still have a profound influence on OSH aspects in the Netherlands. For example, in 2006, the SER advised the Government to create the so-called: OSH catalogues . These OSH-catalogues are made by organisations of employers and trade unions on the branch level. OSH catalogues provide practical solutions for organisations in a specific sector. If a company is using such an OSH catalogue the employer knows the company has acted according to the provisions of the Working Conditions Act. In 2012 an advisory report was published on the Dutch occupational safety and health systems . One of the important aspects of this advisory report was the rising shortage of occupational safety and health physicians.
The Labour Foundation
Composition and activities
The Labour Foundation (Dutch abbreviation: StvdA)  was established in 1945. It is a national consultative body organised under private law. Its members are the three main trade union federations and three main employers’ associations in the Netherlands.
The Foundation provides a forum in which its members discuss relevant issues in the field of labour and industrial relations. Some of these discussions result in memorandums, statements or other documents in which the Foundation recommends courses of action for the employers and trade unions that negotiate collective bargaining agreements in industry or within individual companies. Upon request, the Foundation also advises the government on labour-related topics.
The Labour Foundation has published documents regarding how to set up OSH-catalogues, and also organised conferences about this issue. Sectoral instruments for the risk inventory and assessment should be sent to the Labour Foundation for official recognition . If an employer is using a recognised sectored risk inventory and assessment instrument they are allowed to not hire an OSH professional to check the company’s risk inventory and assessment. This measure can be seen as a cost-saving procedure especially made for small enterprises (with 25 or less employees).
Collective labour agreements
For many sectors of the Dutch economy a collective labour agreement (CLA) is available. A CLA is an agreement between one or more trade unions and one or more employers’ organisations in which individual and collective relations between employers and employees in companies or in an industrial sector are established and the rights and obligations of the contracting parties laid down.
CLAs are binding and relate to such things as working conditions, pay, sickness leave and training possibilities. The CLA is binding for those employers who are member of an employers’ organisation that signed the CLA. In principle, this should mean that employers who are not organised have an economic advantage—indeed they are not bound to the CLA. Therefore the CLA-contracting parties in the Netherlands ask the Minister of Social Affairs and Employment to declare the CLA binding for all companies in that specific sector. As it is the main instrument for indirect worker participation in the Netherlands, the importance of a CLA cannot be underestimated.
Although the judicial status is slightly different it is also possible to make CLA-like arrangements in the public sector, for example, for officials in municipalities. CLA’s can be made for (big) companies as well.
OSH issues can also be regulated via the CLA. Sometimes the provisions that are already issued by the Working Conditions Act or Works Council Act are mentioned in the CLA explicitly. Often CLA’s contain more specific OSH obligations for employers and employees. For example, they may contain obligations related to:
- Specific training possibilities;
- Personal protective equipment;
- Health surveillance for certain professions or;
- Worker participation.
Sometimes the OSH catalogue is an integral part of the CLA. For example, in the CLA for the primary school sector, the OSH catalogue is an integral part of the CLA .
Many sectors have been made OSH catalogues, and are still diligent in maintaining the standards set forth within. Trade unions and employers’ organisations in a sector have the freedom to create (or not) an OSH catalogue. If they choose to create a catalogue, they can develop solutions for certain problems. For example: in the garage sector, by creating an OSH catalogue they were able to find ways to minimise the exposure to diesel motor exhaust .
If both parties have agreed on the content of such an OSH catalogue, this OSH catalogue is sent to the Labour Inspection. The Labour Inspection tests if the OSH catalogue contains information that is contrary to the provisions of the Working Conditions Act. If the Labour Inspection agrees with the OSH catalogue, employers in that sector can use the OSH catalogue. These employers know that they are implementing solutions for certain OSH-issues that are officially approved. At the same time they are in compliance with the Working Conditions Act .
The OSH catalogue is a simple and smart instrument especially for the small and medium sized enterprises (SMEs), because instead of looking for the adequate OSH solutions by themselves, they can use OSH solutions that are nearly tailor-made for them. This is cost-effective and timesaving for the organisations that are using the OSH catalogue .
At the company level the most important act related to worker participation is the Works Council Act ; it obliges companies with 50 or more employees to create a Works Council. This Act is also applicable for the public sector; however, there are some exceptions to that rule. For example, in the public education sector there are special acts for workers’ participation; these are especially designed for the participation of students and parents.
For companies with less than 50 employees there is no obligation to create a Works Council. The employer is, of course, free to establish various forms of direct and indirect participation. Companies with a least 10 employees and fewer than 50 employees have the obligation to organise a meeting with all employees twice a year.
A CLA can oblige the company to establish some sort of direct or indirect participation. Work meetings can be a typical form of direct participation of employees. The creation of a staff representative body is also a possibility for the employer. This is an example of indirect participation. If the employer has chosen to create such a staff representative body, some of the provisions of the Works Council Act are applicable.
Based upon research data from 2011 some general remarks can be made regarding the Works Councils in the Netherlands .
- 71% of all companies which are legally obliged to establish a Works Council does have one. For the companies which do not have a Works Council the most heard arguments were: the employees are not interested in this form of worker participation and we cannot find candidates for the Works Council.
- Sectors with a (relatively) high score of organisations which do not have a Works Council are the agricultural- and transportsector. Sectors with the highest score of organisations with a Works Council are the mining industry and the government sector.
The Netherlands Working Conditions Survey (Dutch acronym is: NEA - Nationale Enquête Arbeidsomstandigheden)  is a large-scale periodical investigation into the working conditions of Dutch employees. Some 23,000 employees per year have responded to the surveys.
Interesting aspects about the worker participation in company level decisions are:
- In 40% of all companies with 10 employees or more there is a works council or a staff representation body;
- The importance of indirect worker participation, such as a works council, is rated with the mark 7.3 (1 is very dissatisfied and 10 is very satisfied);
- Satisfaction with the existing works council or staff representation body is rated with the mark 6.3 (1 is very dissatisfied and 10 is very satisfied) and;
- In nearly every company there are some sort of work meetings.
The works council is primarily a consultative body between the employer and the employee representatives; the employees of the company choose its members. You can become a member of the works council if you have worked for the company for one year. The employer cannot be a part of the Works Council.
The company’s employees elect the members of the Works Council every four years from a list of candidates. This list can be submitted by representative trade unions. Another way for a candidate to become eligible for a Works Council is to collect signatures of thirty employees who are allowed to choose the Works Council. In smaller companies the signatures of one third of the total amount of employees is sufficient to become a Works Council candidate.
Every three years elections should be held to establish a new Works Council; however, a Works Council is allowed to shorten this period to every two years or lengthen it to every four years. The length of time between elections should be made clear in the regulations established by each Works Council.
In general terms the Works Council discusses and negotiates with the employer all social and economic items that affect the company. The works council monitors the company’s social, economic and financial situation, gives advice and input on decisions and formulates proposals regarding the functioning of the company.
More specific duties of the Works Council are promoting as much as possible:
- The compliance with legal obligations related to working conditions, occupational safety and health;
- The direct workers’ participation within the company;
- The equal treatment of men, women and disabled and;
- Measures related to the environment.
Rights of the Works Council
The most important rights of the Works Council are:
- The right of consultation
- The right of information
- The right of advice
- The right of endorsement
- The right of a written agreement
Right of consultation Discussions between the employer and the Works Council take place in the so-called consultation meeting. Twice a year the general business of the organisation must be discussed in the consultation meeting. Both the employer and the Works Council have the right to request a consultation meeting, which, according to regulations, should be organised within two weeks. This request has to be motivated. This is an interesting right of the Works Council, because it offers the possibility to discuss general or more specific issues with the employer. Issues, for example, dealing with problems related to occupational safety and health and issues that are quite urgent can be discussed with the employer or with a representative of the employer. The Works Council can also make proposals during that consultation meeting.
Outside the framework of the consultation meeting the works council always has the right to submit proposals to the employer. After having at least one discussion at the consultation meeting the employer can decide upon the proposal.
Right of information The Works Council has the right to be informed by the employer regarding:
- Basic structure and organisation;
- The financial and economic situation of the organisation (at least twice a year)
- The social aspects of the organisation (at least once a year). For example, the number of employees within the organisation, the number of employees with a long term contract and with a flexible contract, experiences with or facts from the occupational safety and health service, etc. and;
- If the Works Council requests specific information the employer is obliged to provide the information that is necessary for the execution of the work of the Works Council.
Right of advice If the employer wants to make a decision about financial and economic issues and the business organisation is obliged to consult the Works Council. Some examples of decisions regarding financial and economic issues or business organisation are:
- Transfer of control of the enterprise or any part thereof;
- Termination of operations of the enterprise or a significant part thereof;
- Major changes to the organisation or to the distribution of powers within the enterprise;
- Making major investments on behalf of the enterprise or;
- The introduction or alteration of an important technological provision.
The concept-decision should be sent to the Works Council. Before the Works Council provides advice on this concept-decision, the concept-decision should be discussed in the consultation meeting. The Works Council has the right to formulate advice regarding this concept-decision. If the employer rejects the advice of the Works Council, the employer must provide justification for their decision.
The only grounds for appeal for the Works Council is that the employer could not reasonably have reached the decision it did had it weighed the interests involved. Some of these decisions also have a relationship with occupational safety and health. For example, the introduction of an important technological provision will influence the health and safety of employees working with that new technological provision.
Right of endorsement The Works Council has a right to endorsements related to regulations made by the social affairs employer. Some examples of such social affairs regulations are:
- Working conditions, sick leave or reintegration;
- Staff training;
- Complaints procedures or;
- Policy on appointments, dismissals or promotion.
If the Works Council does not endorse such new or changed regulations, the employer cannot implement the regulation. However, it is possible for the employer to go to court and ask the judge to overrule the decision of the Works Council. The endorsement of regulations related to working conditions is an especially important right for the Works Council in order to influence the policy of the organisation regarding safety and health.
For example, based upon the risk inventory and assessment the employer is obliged to make an action plan. This action plan regarding how to improve the working conditions is a subject that the Works Council has to endorse.
Right of a written agreement The most far-reaching right of the Works Council is the right of a written agreement. This right is especially important in the field of working and rest. It means that the employer needs to have a written agreement with the Works Council before executing the measures they want to take. If the Works Council does not agree, the employer has to provide another solution.
Standing committee In some organisations, especially in the industrial sector, the Works Councils are setting up standing committees for occupational safety and health and the environment. It is possible for such a standing committee to receive the same rights as the Works Council itself. The attractiveness of the creation of such a standing committee is the fact that a minority of its members can be ‘normal’ employees, in fact not members of the Works Council itself. This can be very helpful for worker participation because it provides the Works Council with information from specialists within the company.
Worker participation based on Working Conditions Act
The most powerful form of worker participation is given to the Works Council. However, as already noted a Works Council is only obligatory for organisations with 50 or more employees. Of course most companies in the Netherlands are much smaller. For some branches there can be an obligation to create a Works Council or another form of worker participation. Additionally, in some organisations a staff representative body is organised by the employer voluntarily. Thus, in many small and medium sized organisations there is no institutionalised form of worker participation.
Nevertheless, the Working Conditions Act  gives some additional rules related to the worker participation and occupational safety and health. The most important provision is the fact that the employer and the employees should work together to implement the occupational safety and health policy of the organisation. Working on the improvement of occupational safety and health is not an issue relevant for to employers: it has a bipartite effort. Both partners, employers and employees should exchange relevant OSH-information actively.
- Parts of the occupational safety and health policy of the organisation and;
- Execution of the occupational safety and health policy of the organisation.
Two specific rights have been given to members of the Works Council or the staff representation body:
- To hold confidential discussions with the supervisor of the Labour Inspectorate when he/she visits the organisation and;
- To accompany the supervisor of the Labour Inspectorate when he/she visits the organisation, unless he/she indicates that this would impede him/her in the proper performance of his/her duties.
In organisations with less than 10 employees the employer organises a consultation meeting with all employees involved regarding the following topics:
- The risk inventory and assessment and;
- The way the prevention worker(s), the OSH-service or OSH-professionals and the employees who have been designated as emergency response experts are organised.
In small and medium sized enterprises in the Netherlands formal (legal) indirect worker participation is not very well developed. At the same time all sorts of direct worker participation are functioning quite satisfactory, especially in the small and medium sized enterprises.
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