Proposed changes to the current Working Conditions Act (Arbeidsomstandighedenwet) (the Act) are expected to have a direct impact on all companies in the Netherlands. The changes will mainly impact on the current relationship with the occupational health & safety service provider (Arbodienstverlener); existing policies in relation to sickness prevention; and conditions that apply to the services of the company doctor. The employer will also have to attribute a clearer role to the prevention officer (preventiemedewerker) and the works council or employee representative body (ERB) (if any) will have a right to consent to such appointment.
Although there will be a transition period of one year after the implementation date for companies to become fully compliant, it is important to review the changes below as a change to existing policies and procedures is unavoidable.
Most important changes to the Act
Clearer role of the prevention officer
At present, an obligation exists to appoint at least one prevention officer within a company. The officer is responsible for
- the creation and running of the risk inventory and evaluation (RI&E);
- providing information and education;
- recording and investigating accidents;
- advising the works council/ERB; and
- answering questions on health and safety from employees within the organization.
The proposed changes to the Act attribute a clearer role to the prevention officer. The employer will be required to enter into an agreement with the prevention officer in relation to his duties and the performance of his role, and the company doctor must support the prevention officer in the execution of his role and vice versa.
Right of consent for the works council or ERB
The works council or ERB (if any) has the right to consent to the decisions of the employer that relate to the appointment of a prevention officer; his role within the organization and the envisaged cooperation with the company doctor/occupational health & safety service provider; and the appointment of other company doctors/other occupational health & safety service providers who can provide a second opinion. The new Act refers to applicability of Article 27 paragraphs 3-6 of the Dutch Works Councils Act, which means that any of the aforementioned proposed decisions can in principle not be implemented by the employer if such consent is not obtained.
Additional rights and obligations of the company doctor
The amended Act will also introduce additional rights in relation to the roles of the company doctor.
- All employees will have the right to visit a company doctor during office hours without the employer’s prior approval. Such a right also exists even if the employee is not on sick leave or if no health issues are present. These visits are confidential and the employer will not be notified.
- The employer will have to provide the company doctor with full access to the workplace. The idea is that this will increase the ability of the company doctor to advise on sickness prevention from a company broad perspective.
- The company doctor will in principle have to grant employees the right to a second opinion.
- The company doctor can be penalised if he fails to allow the employee a second opinion and he does not have a complaints procedure in place; he does not collaborate with the prevention officer and/or the works council; or he fails to give his advice in relation to the testing of the RI&E to the works council or ERB.
- The company doctor will be granted the right to consult with the works council or ERB (if any). This will mean that the company doctor can be involved in establishing the health & safety policy.
- The company doctor will be obliged to report occupational diseases to the Netherlands Centre for Occupational Diseases (Nederlands Centrum voor Beroepsziekten).
Health & Safety framework agreement
Minimum requirements will apply to the framework agreement with the occupational health & safety service provider, including the requirements for prevention of occupational diseases and long-term absence; the rights and obligations of the company doctor and how these can be safeguarded; and the rights of employees in relation to health & safety, including reference to the second opinion and the complaints procure.
After the implementation date, companies will have a year to amend the existing arrangement with their occupational health & safety service provider and their internal regulations. The existing agreement with the occupational health & safety service provider and internal policies in relation to inter alia health & safety, absenteeism, sustainable employability etc. should be reviewed and then modified to the requirements of the new Act. We expect a pro-active approach from occupational health & safety providers in this respect.
Changes to current policies are essential as the Inspectorate of Social Affairs and Employment (Inspectorate SZW) will have greater scope to impose penalties on employers, occupational health service providers and company doctors in cases of non-compliance with the new regulations.
All Dutch companies are affected by the above changes and should take action to become compliant. Please feel free to contact Maartje Govaert or Thomas Timmermans for any advice or further questions in respect of the above.