Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Netherlands (Ratification: 1973)

The Committee notes the communication of the Netherlands Trade Union Federation (FNV).

Legislative developments. The Committee notes that pursuant to section 3(2) of the Labour Conditions Act, amended in 2009, employers should adopt a policy to prevent or reduce psychosocial burden in the workplace. Section 1(2)(e) of the Act defines psychosocial burden as covering direct and indirect discrimination, including sexual harassment, aggression and violence, mobbing and work stress. The Committee asks the Government to provide information on the practical application of sections 1(2)(e) and 3(2) of the Labour Conditions Act, particularly with regard to measures by employers to prevent and reduce discrimination in the workplace.

Sexual harassment. The Committee notes that the Ministry of Social Affairs and Employment is running a three-year programme (2010–12) for monitoring undesirable conduct and discrimination in nineteen sectors with public responsibilities but that no complaints about sexual harassment have been received. The Government also indicates that a National Working Conditions Survey is held every two years, covering also harassment and discrimination. The survey results indicate that unwanted sexual attention on the part of managers had occurred for 1.8 per cent of the 22,025 respondents and was four times more common in the hospitality sector than in construction. On the other hand, unwanted sexual attention had occurred on the part of customers for 4.8 per cent of the respondents with the highest scores in healthcare and welfare sectors. Harassment had occurred on the part of managers and colleagues for 10.7 per cent of the respondents while harassment on the part of customers had occurred for 18.9 per cent of the respondents. The healthcare and welfare sectors and public administrators scored highly. The Committee notes that FNV, referring to section 3(2) of the Labour Conditions Act, requests the Government to monitor closely the effect of the Labour Conditions Act on sexual harassment and to consider amending the legislation to reinsert a definition of sexual harassment. The Committee asks the Government to ensure that monitoring activities adequately cover sexual harassment in the private and public sectors and to continue to provide information on the results achieved of the three year programme (2010–12) and the National Working Conditions Survey with respect to sexual harassment in employment and occupation. Please also indicate whether any consideration is being given to reinsert a definition of sexual harassment in the Labour Conditions Act and provide information on measures taken or envisaged, and the results achieved, to raise awareness on sexual harassment among employers and managers.

Discrimination based on sexual orientation. The Committee notes the Government’s statement that the legislative proposal to amend the Equal Treatment Act with a view to bringing it in line with the European Council Directives would be submitted to the House of Representatives in late 2010, and that the exception regarding religion and philosophical institutions, including schools, in section 5(2)(1) will be maintained but more closely aligned to the European Equal Treatment Directive. The Committee notes that FNV is against maintaining section 5(2)(a) of the Act which provides that the prohibition of discrimination does not affect the freedom of religion and philosophical institutions, including schools, to impose specific requirements for the exercise of a specific function, provided that these requirements do not lead to discrimination based solely on political opinion, race, sex, nationality, sexual orientation or civil status. FNV considers that lesbian, gay, bisexual and transgender (LGBT) workers in these institutions will continue to be vulnerable to discriminatory treatment and states that the right to be protected from discrimination should also apply to LGBT workers. The Committee draws the Government’s attention to the need to ensure that any distinctions based on the inherent requirements of the job within the meaning of Article 1(2) of the Convention should be interpreted restrictively, and asks the Government to take the necessary measures to ensure that under the new equal treatment legislation exceptions to the application of the prohibition of discrimination for religion or philosophy-based institutions will not lead to direct or indirect discrimination based on sexual orientation, in law or in practice.

Equality between men and women. The Committee notes that statistics for the year 2009 concerning all workers (native workers, western minorities and non-western minorities) indicate an employment rate for women of 59.7 per cent compared to 74.7 per cent for men. Around 9 per cent of women are self employed (compared to 15.8 per cent for men), and more women (8.6 per cent) than men (6.2 per cent) are in flexible employment. The Committee also notes that the overall majority of male workers continue to work full time while female workers usually work part-time (84 per cent of the male workers are employed more than 35 hours a week compared to only 29 per cent of women). Native Dutch women have less full time employment than women from western and non-western minorities. Regarding part-time work, 53 per cent of female workers compared to 13 per cent of male workers are employed between 20 to 34 hours a week, while 19 per cent of female workers are employed 12 to 19 hours a week (compared to only 3 per cent of the male workers). While the share of full-time working non-western men is 6 per cent lower than for native men (79 per cent against 85 per cent) the share of full-time working non-western women, particularly Surinamese women, is 10 per cent higher than for native women (38 per cent against 28 per cent). The Committee asks the Government to indicate the underlying factors for the persistent high proportion of female part time workers, especially native Dutch women and the higher share of full-time working non-western women. Please also continue to provide statistical data disaggregated by sex and origin on the employment of men and women, including data on the distribution of men and women in the various sectors of the economy and occupations, including higher level posts, in the public and private sectors.

Diversity policies. The Committee notes the Government’s statement that the National Diversity Management Framework (Div) provides practical support to employers introducing diversity management and the Government has taken an exemplary role in setting a target of 50 per cent increase in the proportion of people from ethnic minorities working in the public sector in four years’ time. However, while the share of immigrants employed in the public sector rose slightly in 2007 and 2008, developments have been mixed and additional measures have been taken. The Committee asks the Government to provide information on the results achieved regarding the target of a 50 per cent increase in the proportion of people from ethnic minorities employed in the public sector, and to provide statistical data on their actual employment in the public sector compared to 2008. Please also provide information on the support given on diversity policies to private sector employers.

Enforcement. The Committee notes that most complaints received in 2008 by the Equal Treatment Commission concerned age (25 per cent) followed by race (17 per cent), gender (13 per cent), handicap/chronic illness (12 per cent), religion (8 per cent), and nationality (6 per cent). The majority of the complaints (58 per cent) concerned employment followed by supply and access to goods and services (22.5 per cent). The Committee also notes the adoption of the Act of 25 June 2009 on municipal anti-discrimination services (ADVs) decentralizing the anti discrimination services, including their funding, and requires all local authorities to grant access to these services to all citizens. ADVs should provide independent assistance to persons who submit complaints regarding discrimination under the equal treatment legislation and register these complaints. The Committee notes that FNV states in this regard that a clear source of financing of ADVs depends on the decisions and the political composition of the local government, and that absence of a legislative provision linking ADVs to the social partners results in the lack of a concrete approach to addressing discrimination in the workplace. The Committee asks the Government to provide information on the services provided by the various ADVs regarding complaints of discrimination, and to indicate any obstacles encountered by these services in carrying out their tasks, and any positive results achieved as to the effective enforcement of the equal treatment legislation. The Government is also requested to provide information on any steps taken to encourage cooperation between ADVs and social partners in addressing discrimination in the workplace. Please continue to provide information on the number and nature of complaints regarding discrimination received by the ADVs, the ETC and the courts, and any follow up given.

Non-discrimination and integration of migrant workers. The Committee previously requested information on the measures taken to monitor the application of the Civic Integration (Abroad) Act, 2006 and the Civic Integration Act 2006 and to ensure that the requirement of the integration certification was not leading to discriminatory treatment and stigmatization by employers and the population based on any of the grounds set out in the Convention. The Committee notes the Government’s indication that the impact of civic integration on employment is not being monitored but that efforts are being made to ensure that, by the end of 2010, as many civic integration programmes as possible are available in combination with programmes aimed at participation in the labour market (dual trajectory). The objective is that 80 per cent of the civic integration programmes will be part of the dual trajectory. The Committee asks the Government to provide information on the results achieved regarding the objective of having 80 per cent civic integration programmes as part of the dual trajectory and their impact on the employment situation of ethnic minorities, particularly newcomers and persons residing in the country for a long time, originating from outside the European Union, the European Economic Area and Switzerland.