Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Maternity Protection Convention, 2000 (No. 183) - Netherlands (Ratification: 2009)

Article 3 of the Convention. Health protection measures. Referring to its previous comments, the Committee notes that the representative organizations of workers and employers are consulted regarding the introduction of amendments to national legislation concerning the protection of health in the context of pregnancy and childbirth in conformity with the requirements of Article 3 of the Convention. It further notes that following an amendment made in 2012 to the Working Conditions Decree (Arbeidsomstandighedenbesluit) of 1997, a new section 1.42a was added requiring the employer to provide effective information on the work-related risks during pregnancy and breastfeeding periods. Such information shall be provided within two weeks from the date the employer is notified of the worker’s pregnancy. This new provision thus complements section 1.42 of the aforementioned Decree, requiring employers to organize work in such a way as to eliminate risks to pregnant or breastfeeding employees and ill effects on pregnancy and breastfeeding. While indicating that there are no specific procedures put in place for the assessment of health risks, the Government highlights Internet resources also commonly used by professionals and containing information on occupational health risks for pregnant women. There are also toolkits developed concerning risks in pregnancy by type of work and also containing communication plans for family doctors, midwives and gynaecologists. The Committee understands that on-the-job risk evaluation needs to be carried out by each employer individually, to take into account the nature of the occupations existing within the enterprise. Please indicate whether the trade unions within the enterprise or the work council (Ondernemingsraad) are consulted or associated in this evaluation process. The Committee further notes that, pursuant to section 1.42, if an employee’s work presents a risk to her health that cannot be avoided through a change in her working conditions or hours, or if she cannot be temporarily transferred to another position, she is exempt from her duties while the risk persists. Please indicate whether such leave is paid or gives entitlement to income replacement benefits from social insurance.

Night work. The Committee notes that, according to the Working Hours Act of 1995, as amended, pregnant women cannot in principle be required to carry out night work unless their employer gives “convincing reasons” whereby it cannot reasonably be expected to adapt the employee’s work (section 4:5, paragraph 5). Please indicate what may constitute “convincing reasons” in this case and indicate whether, for medical reasons, a pregnant employee may request to be exempted from night work in accordance with section 1.42 mentioned above. Please indicate whether there exists a special provision regulating night work by workers who breastfeed their child.

Article 9(1). Discrimination in employment, including access to employment. The Government indicates that the Netherlands Institute for Human Rights (previously Equal Treatment Commission) published the report undertaken in 2011 to examine the impact of pregnancy or parenthood on women’s employment opportunities. According to the findings of this report, certain categories of employees are more at risk than others of becoming victims of discrimination on the grounds of pregnancy or maternity in employment or access to employment: women in lower paid jobs and temporary assignments; women employees in the private sector; women who often fall sick during their pregnancy or suffer complications related to pregnancy or childbirth; and also women in managerial positions. The two main recommendations to the Government were to inform women and employers of their rights and obligations during pregnancy and maternity to allow them to better identify discriminatory practices and provide information on how to file complaints. Following up on these recommendations, the Government regrouped on one website the information regarding the rights of women at work during pregnancy, maternity leave and the period following their return to work. The Human Rights Institute also provides on its website information regarding the filing of complaints. In comments received in August 2013, the Netherlands Trade Union Confederation (FNV) considered that, in spite of the above measures, the problems related to maternity protection are increasing, as well as the number of temporary contracts, with many women still experiencing problems of recruitment or of losing their jobs when they become pregnant as their contracts are not renewed in this case. The Committee asks the Government to consider assessing the impact of the measures taken together with the social partners in order to more effectively tackle the problems of application in practice the prohibition of discrimination based on maternity.