Be prepared: Labour Inspectorate focuses on yacht and shipyards

_{By Kirsten Boele en Muhyadin Mohamud}

Starting from the final quarter of 2024, the Dutch Labour Inspectorate will pay extra attention to working at shipyards. On October 16th, the starting signal was given by a meeting organized by industry organization Netherlands Maritime Technology (NMT) and the Labour Inspectorate. The focus that day was what kind of work is performed at a ship repair yard and a super yacht building yard, how inspections are carried out and what inspectors will look for.

Inspectors are allowed to do a lot

The Dutch Labour Inspectorate checks compliance with health and safety regulations, working and rest periods and payment of the legal minimum wage and minimum holiday allowance. During an audit, inspectors are allowed to inspect documents and question individuals. The most notable contact persons are the employees who are responsible for safety, working conditions and working conditions. But the inspectors do not need to limit themselves to them; they may question anyone on the shipyard. Even crew members already signed on during refit or during construction can be questioned.

They may also check the “papers” of all those present in the yard: passport and any work authorisation. Anyone walking around, regardless of whether they are temporary workers, as well as the crew of the ship, can be included in this. A check is then made for compliance with the Foreign Nationals Employment Act. This Act contains the rules regarding allowing foreign workers to work.

Good preparation for audits pays off

Practice shows that good preparation for audits visits pays off. An audit can be expected or unexpected. Make sure that within the organisation the preparatory work is done and a manual is ready.

Tips:

• Carefully check the RI&E in advance.
• Check whether the various points of the RI&E are also properly observed at the worksite.
• Identify the different groups of workers and check their papers again.
• Identify the contact person for the audit.
• Prepare those involved for possible questions.

Stay alert during the audit

During an audit, it is important to pay close attention: what do the inspectors want and what exactly are they asking? It is important that those being questioned understand what they are being asked. Does someone not speak Dutch? Then pay close attention to whether everyone understands each other well in English. If this is not the case or you are unsure, make sure a translator is present. If that is not possible, perhaps another appointment can be made or maybe it can be arranged that the questions may be answered later by e-mail.

Tips:

• Make sure the right persons are available to speak to the inspectors. If those persons are not present, try to schedule another appointment with the inspectors.
• Be wary of suggestive questions or incorrect assumptions.
• Ask for clarification if the question is unclear or open to multiple interpretations.
• Give clear, matter-of-fact and unambiguous answers.
• Outline context if necessary, such as to understand the work properly.
• If necessary, ask to be allowed to return to a question later.
• Read statements carefully yourself and do not hesitate to modify statements.

And if irregularities are discovered?

Of course it is possible that things are not right after all. Sometimes these are minor points for which no sanctions will follow. In such cases, the inspectorate will always conduct a follow-up inspection. Make sure that everything is in order before then. If the issues are serious, contact a lawyer immediately. The Dutch Labour Inspectorate can impose fines, and some fines are high. Before a fine is imposed, the yard still has the opportunity to submit a formal view. It is wise to get this right the first time. Not only to avoid fines, but also reputational damage. After all, the Dutch Labour Inspectorate also publishes the findings of its investigations online.

Don’t forget: the Foreign Nationals Employment Act and ITR

Fines for violations of the Foreign Nationals Employment Act are particularly hefty. These fines are imposed on every link in the supply chain; from the temp agency providing the worker to the head contractor all the way up in the chain, such as a Jeffrey Bezos ordering the construction of a super yacht.

The shipyard can also be fined for a violation of the Foreign Nationals Employment Act.

As a shipyard, it is good to be aware of the following when a foreign worker comes to work:

• Foreign workers who are present at the shipyard and who are involved in some way in the construction/repair of a ship or yacht may soon be considered to be performing “labour”.
• The shipyard may quickly be considered ‘the employer’ of that worker as defined in the Foreign Nationals Employment Act. Even if the shipyard does not have an employment contract with that person.
• Anyone with the nationality of one of the countries of the European Economic Area (EEA) or Switzerland may work in the Netherlands without the need for work authorisation, as the right of free movement of workers applies to this group.
• Foreign employees with other nationalities need a valid work authorisation. A work authorisation usually consists of a valid work permit or a notification based on the International Trade Regulation (ITR).

The latter regulation, the ITR, can be attractive to shipyards that temporarily bring in non-European workers from a foreign company to do specialised work, such as finishing and fitting a custom-built radio system or crew supervision on the construction of a super yacht. The shipyard can register a project based on the ITR, rather than filing separate applications for work permits for each foreign worker. After a project is admitted to the ITR, foreign workers can be registered with the Labour Directorate (UWV).

If the conditions are met, a work permit or admission to the ITR can be requested from the UWV. The decision period is 5 to 7 weeks.

Persons of foreign nationality are employed on most construction sites, especially on large construction projects. Using the ITR on such a project is a good way to comply with the Foreign Nationals Employment Act and will reduce the chances of finding irregularities during inspections.

This article was written in collaboration with Wybenga Lawyers.

Muhyadin Mohamud is a lawyer at Everaert Advocaten in Amsterdam and specialises in immigration law.

Kirsten Boele is a partner at Wybenga Advocaten in Rotterdam and specialises in maritime labour law.