24 March 2017

Dutch Occupational Health and Safety Act & empowerment of Works Council

Category: Employment law

As an employer, you are responsible to provide a safe workplace for your employees. Every employer has to research the safety and health risks for its employees and is required to document the results. This is done in so called Risk inventory and Evaluations (RI&E). These RI&E’s do not only state the risks but they also contain an Action Plan, to eliminate the risks or at least reduce them as much as possible. The RI&E and the Action Plan are important parts of occupational health and safety policies (OHS policies) of companies.

The First Chamber of the Dutch Parliament voted in favor of the legislative proposal to change the Occupational Health and Safety Act. This change has an impact on OHS policies of companies. The legislative proposal enters into force on 1 July 2017. A transitional period of one year applies to ongoing contracts with occupational health care providers.

The most important changes to the Occupational Health and Safety Act are:

  • Employees have the right to ask for a second opinion from a different company doctor;
  • Employees have the right visit the company doctor during ‘open office hours’;
  • Employers must draw up a basic contract for occupational health care services;
  • The inspectors of the Ministry of Social Affairs and Employment have greater possibilities for enforcement and oversight.

OHS policies and the Works Council/staff representatives: empowerment of the Works Council

The new Occupational Health and Safety Act also has consequences for the Works Council. For example, Works Councils or staff representatives, have among other things a right to consent to rules concerning working conditions. This means specifically that a Works Council/staff rep. must consent to:

  • Implementation of a RI&E;
  • Drafting and application of the Action Plan;
  • Choice of occupational health care provider;
  • Contribution to the creation of the contract with the occupational health care provider;
  • Additionally the Works Council/staff rep. may meet with the inspectors of the Ministry of Social Affairs and Employment, when the inspector visits the company. The meeting may take place without the attendance of others (e.g. HR or the management). Moreover the Works Council/staff rep. are allowed to accompany the inspector during the visit of the company.
  • On 15 November 2016, I informed you of Minister Asscher’s intention to strengthen the position of the Works Council in relation to the OHS policies, by giving the Works Council the right to consent to appointment of a prevention officer. Here is a link to that blog: http://bit.ly/2lfLtiH.
  • Through the new Occupational Health and Safety Act, the Works Council receives, in summary, a right to consent to the appointment of a so-called ‘ prevention officer ‘, his position in the company and the job responsibilities of the prevention officer. At the moment, the Works Council only has the right to consent on the job responsibilities of the prevention officer.
  • The prevention officer is involved in:
  • Establishment and implementation of the RI&E;
  • Providing information and training sessions;
  • Setting up a management system;
  • Registering and investigating accidents;
  • Working with and advising the Works Council;
  • Answering questions of workers, on OHS matters.
  • The consultation between the company doctor, prevention officer and Works Council will, on the basis of the legislative proposal, no longer be optional, but required.

What do with contracts with OHS services?

Contracts with OHS services and company doctors will have to be amended according to the new legislation. The Works Council has a right to consent the appointment of the prevention officer, his position in the company and responsibilities of the prevention officer. It is important for the board of directors and the the Works Council, to discuss the changes and to make use of the new right of consent in article 27 of the WOR (Works Council Act, Wet Op De Ondernemingsraden).

Do you have questions about the amendments to the Occupational Health and Safety Act and the rights of the Works Council/staff rep. in particular?