Offenders scot-free, victims not helped

Report | 28-09-2021

The coalition agreement increased funding to tackle labour exploitation. The SZW Inspectorate is a special investigative service of the Ministry of Social Affairs and Employment (SZW). It investigates labour exploitation under the authority of the National Public Prosecutor’s Office, part of the Public Prosecution Service (OM). There are two approaches open to the Inspectorate: via criminal law to investigate labour exploitation as a form of human trafficking and subsequently hand cases over to the OM, or via administrative law to penalise violations of labour laws that seriously disadvantage workers. The current combination of the criminal approach and the administrative approach is not effective.

Why did we investigate labour exploitation?

The SZW Inspectorate is tasked with tackling labour exploitation and serious disadvantage. Measures have been taken in recent years to step up efforts to combat labour exploitation. On the initiative of the State Secretary for Justice and Security, the Minister of Health, Welfare and Sport, the Minister of Foreign Affairs, the Minister for Foreign Trade and Development Cooperation, and the Minister and State Secretary for SZW, the interdepartmental Together against Human Trafficking programme was launched in 2018. One of the programme’s action lines is to tackle labour exploitation. Under the programme, the SZW Inspectorate is responsible for and plays a leading role in tackling labour exploitation.

Fewer and fewer criminal cases

In the 4 years from 2016 to 2019, the SZW Inspectorate investigated 331 reports of labour exploitation made by municipalities, the police and SZW inspectors. Fewer and fewer of them have been handed over to the OM for criminal prosecution. In 2016, 27% of the reports led to a criminal investigation. In 2019, only 4% were. The Inspectorate claims it cannot use criminal law to deal with many reports because they do not meet all elements of the legal definition of human trafficking. It is difficult for the courts to prove people are being forced to work under duress or are being exploited, and sham arrangements are difficult to unravel.
Of the 49 cases investigated by the Inspectorate between 2016 and 2019, 18 were completed and handed over to the OM. The OM dealt with a limited number of them and the courts delivered a judgment on only a handful of those. 

The administrative and criminal approaches have different outcomes for offenders and victims
 

Programme for the administrative approach

The Inspectorate has taken the administrative approach more often since 2017 and fined employers (including temporary employment agencies) that seriously and repeatedly broke labour laws. The fines were so low that they had little deterrent effect. Relatively few multiple fines were imposed. Furthermore, this approach offers the victims of exploitation little help or protection. Victims are therefore often reluctant to cooperate in an investigation because they risk losing their work, temporary accommodation and/or health insurance. Many of the victims are labour migrants who depend on the employer for housing.

Increased efforts not effective

The SZW Inspectorate (which is soon to be renamed the Labour Inspectorate again) has 1,473 FTEs to carry out all its tasks. Parliament has been providing it with additional funding, rising to €50 million, since 2018. The increased efforts taken to tackle labour exploitation have not yet led to more offenders being stopped. The Inspectorate is not achieving its own targets of punishing more offenders and helping more victims. The ministries concerned, Justice and Security and SZW, have been working to improve the legislation for several years but have not yet had any visible success. Furthermore, the Inspectorate does not keep a record of all the victims, as a result of which many of the estimated thousands of victims of labour exploitation in the Netherlands are not known. 

Recommendations

The Court of Audit recommends that the Minister of SZW consult the Minister of Justice and Security in order to improve existing instruments so that inspectors can stop offenders and offer victims more help, protection and support. In addition, the Inspectorate should improve the information it provides to the Minister of SZW so that he can inform parliament of the results of the Inspectorate’s approach. The Minister of SZW accepts all the recommendations. He believes amending criminal law is both desirable and possible. The Court of Audit notes in its afterword that if a new government only amends criminal law it will not solve the problem; the administrative approach is not effective either.
 
 

What audit methods did we use?

We used several methods to carry out this audit. We held interviews at the SZW Inspectorate, the ministries concerned and with the SZW Inspectorate’s partners, and studied reports, parliamentary papers and policy documents. We also carried out data analysis, a file study and held a survey among inspectors. We were also present when the SZW Inspectorate inspected businesses and talked with 2 focus groups of inspectors.

What data did we use in our audit of labour exploitation?

The data on tackling labour exploitation and serious disadvantage came from two sources: a dataset of the Investigation department and a dataset of the Supervision department. The datasets were not already present at the 2 departments but were compiled especially in response to our request for information. 

What is the current status?

The Minister and State Secretary for SZW responded to our report in writing. The minister accepts all our recommendations. The report has been presented to the House of Representatives and was published on 28 September 2021.