Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

Maternity Protection Convention (Revised), 1952 (No. 103) - Netherlands (Ratification: 1981)

A Government representative recalled that, according to Article 4, paragraph 1, of Convention No. 103, women who were absent from work on maternity leave in accordance with the provisions of the Convention, were entitled to receive cash and medical benefits. Paragraph 4 stipulated that these benefits would be provided either by means of compulsory insurance or by means of public funds. In either case, they would be provided as a matter of right to all women who complied with the prescribed conditions. Women who failed to qualify for benefits provided as a matter of right would be entitled, according to paragraph 5 of the same Article, to adequate benefits out of social assistance funds. The Dutch system of medical care was based on the principle that everybody who was living in the Netherlands was entitled to medical care. The insurance for medical benefits was a hybrid system. Workers who earned an annual income below a certain level (in 2004: 32,600 euros; a lower ceiling applied for pensioners and the self-employed) were obligatory covered by the Health Insurance Act (ZFW). Beneficiaries of the social security system and recipients of social assistance were also covered by this Act. This applied to approximately 65 per cent of the Dutch population. About 5 per cent were covered by compulsory schemes for public servants. Another 5 per cent were covered by the Medical Insurance Act, which was not compulsory but had the same coverage as the Health Insurance Act and the implementation was supervised by the Government. This meant that, about 25 per cent of the Dutch population, generally having a high income, had to take out private insurance. Since they were not obliged to do so, it could happen that they were not insured. This did not mean, however, that they were denied medical care. Every person living in the Netherlands was, in principle, entitled to medical care.

The speaker stated that her Government had taken note with interest of the comments of the Committee of Experts, in particular the comment on the relationship between paragraphs 4 and 5 of Article 4 of the Convention, and was currently examining the matter, in close cooperation with the ILO, on actions to be taken. In the meantime, the Dutch Government was preparing a fundamental reform of the medical insurance system. On 28 May 2004, a Bill to transform the compulsory insurance under the Health Insurance Act, the insurance schemes for civil servants as well as the other insurances, into one compulsory general health insurance scheme, had been sent to Her Majesty, the Queen, in order to be introduced before the Council of State for advice. This new compulsory general health insurance scheme would cover all residents in the Netherlands and might enter into force on 1 January 2006. In addition, the Government was considering ratifying the Maternity Protection Convention, 2000 (No. 183), which modernized and replaced Convention No. 103, and which appeared to contain more flexible provisions on this matter. She added that the Government would continue to act in close contact with the ILO and the social partners on this matter. With regard to the statistical data requested by the Committee of Experts in its observation, she indicated that the information would be provided with the next regular report.

The Employer members noted that the legislation provided for maternity benefits under a compulsory insurance scheme from which women with an annual income of more than 30,700 euros were excluded. The legal question before the Committee was whether this system was in accordance with Article 4, paragraph 4, of the Convention. This would be the case if the Government could show that women not covered by compulsory insurance received benefits out of public funds as a matter of right. However, they had doubts as to whether this test was met. The Government representative had referred generally to the social security system without indicating the provisions of the national legislation granting the right to receive maternity benefits of those excluded from compulsory insurance. The Employer members considered Article 4, paragraph 5, of the Convention to be a fallback provision as it applied to women not covered by paragraph 4 of the same Article. Contrary to the view of the Committee of Experts, they believed that Article 4, paragraph 5, did not necessarily apply to women who, in principle, were eligible to receive benefits as described in Article 4, paragraph 4, but did not meet all the prescribed conditions, e.g. a certain duration of employment. In any case, the provision of social benefits under Article 4, paragraph 5, was not sufficient to satisfy the requirements established by paragraph 4 which provided for two basic options and which bound the Netherlands. The Employer members suggested that the Government commissioned a legal expert opinion on the issues involved.

The Worker members pointed out that the main interest of the case related to the highlighting of certain juridical aspects of the Convention and in certain aspects of social protection systems in industrialized countries. In the Netherlands, health-care coverage through compulsory sickness insurance was reserved to workers whose remuneration did not exceed by more than one-and-a-half the average wage, and to women on social assistance. It therefore excluded workers earning more than one-and-a-half times the average wage, civil servants and most teachers. However, according to Article 1, paragraphs 1 and 3, and Article 4, paragraph 4, of Convention No. 103, the workers should benefit from the provisions foreseen, either in the framework of a compulsory insurance system or by using public funds. The Worker members considered that Article 4, paragraph 5, of the Convention concerned only cases of workers who were not meeting payment, work or residence conditions temporarily and not those excluded from compulsory insurance because of the amount of their remuneration. This latter exclusion was even less justifiable since in the Netherlands independent workers had obtained, at the end of 2001, access to maternity benefits irrespective of their income level. The Worker members observed that workers not having access to compulsory insurance could naturally subscribe to private insurance but such a trend did not correspond to what the Convention provided for. However, at the moment, there was a powerful movement in favour of privatization of certain areas of social security, mainly health care and maternity. The Worker members strongly rejected ideas which went against the principle of compulsory maternity protection enshrined in the Convention. Finally, they requested the Government to supply accurate statistics on women excluded from the protection foreseen by the Convention.

The Worker member of the Netherlands associated himself with the statement made by the Worker members and said that the problem was long standing, dating back to the ratification of the Convention in 1981. The workers' organizations in the Netherlands had made many efforts to solve it. This was the first Committee of Experts' observation following a series of direct requests over a period of 20 years. The speaker found the Government's answers minimalist. There were no facts and figures in the report. The Committee of Experts had requested data concerning the number of women receiving cash and medical benefits, but the Government's report simply mentioned the number of women receiving pregnancy or maternity allowance, providing no data on the number of women compensated for medical costs without making their own contribution. No insight was given on the number of women whose costs for pregnancy and maternity remained outside the scope of private medical insurance. Waiting periods of up to two years were no exception. The Committee of Experts had asked a specific question on this point, which should be answered. The Government had stated in its report that personal contributions for the costs of maternity had been abolished for those insured under the Sickness Benefits Act who had been obliged to make contributions until 1999. However, the Government had failed to state that this was a result of the decision of the Central Court of Appeal which had been based, inter alia, on earlier comments made by the Committee of Experts. The Committee of Experts had indicated following the Government's first report that the exclusion of women civil servants and most women teachers (15-20 per cent of all women workers) and of women workers earning an income over and above the ceiling established by the Sickness Benefits Act was a violation of the Convention. The Government had regularly argued against this, stating that it was in the process of constructing a single compulsory insurance system. The speaker added that the Committee of Experts had rightly paid attention to the issue of medical costs. He wanted to see the Committee examine all other relevant aspects. He hoped that the Government would provide a clearer and fuller answer in its next report, regarding the implementation of Article 6 on dismissal during maternity leave, which raised serious problems.

The Government representative stated that her Government would take note of the discussion before the Committee and examine the conclusions in close cooperation with the ILO and the social partners.

The Employer members stated that public health-care systems were increasingly overburdened and their privatization was an option which was not contrary to the Convention. The question of entitlements was being examined in many countries in order to ensure that benefits could also be guaranteed in the future.

The Worker members hoped that the Committee would ask the Government to take all necessary measures to bring its legislation into conformity with the Convention, and to provide in its next report information on the measures taken in this respect, statistics on the number of women who did not benefit from the coverage provided by compulsory medical insurance for maternity as well as on the number of women receiving maternity benefit by compulsory insurance or social assistance. They concluded by recalling that the Government had expressed its intention to carry out an in-depth reform of its medical insurance system and requested the Government to submit draft amendments to the ILO for its comments so as to ensure that the new provisions were in conformity with the requirements of the Convention.

The Committee noted the information provided orally by the Government representative and the discussion that followed. It noted the comments of the Committee of Experts, which related to the exclusion of certain categories of women workers who were covered by the Convention from the compulsory insurance scheme, and therefore from medical maternity benefits, due to the level of their remuneration or occupational activity. The Committee noted in this respect the statement by the Government representative according to which draft legislation on the compulsory health insurance scheme was being examined and on which the Government would provide information. It also noted that the Government was examining the possibility of ratifying Convention No. 183. The Committee recalled the importance that it attached to maternity protection. It emphasized that the Convention did not permit the exclusion of women workers coming within its scope of application on the grounds of their level of remuneration or occupational activity. The Committee hoped that the Government would adopt the necessary measures to bring the legislation into conformity with the provisions of the Convention and that it would provide full information, and particularly statistics on the number of women workers who were covered and who were excluded from the compulsory insurance scheme.