Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations on the Government’s report by the Netherlands Trade Union Confederation (FNV) and the National Federation of Christian Trade Unions (CNV), received on 31 August 2016. It also notes the observations by the FNV attached to the Government’s report.

Article 1(1)(a) of the Convention. Discrimination based on social origin. The Committee recalls that under the Convention measures must be taken to address at least all the grounds listed in Article 1(1)(a) of the Convention, including social origin. The Committee notes the Government’s indication that neither the Netherlands Institute of Human Rights (hereafter the Institute) nor the courts have made a decision on the basis of this ground. The FNV and the CNV, however, observe that, while the grounds of race, identity and social origin are closely connected and prejudices are common, in criminal cases regarding discrimination it is frequently claimed that this interconnection is not apparent. Recalling that Article 1 of the Constitution prohibits discrimination on the basis of “any grounds whatsoever”, the FNV and the CNV stress the urgency of including “social origin” in the list of prohibited grounds in equal treatment legislation and urge the Government to work with the Institute on this issue. The Committee notes that no steps have yet been taken to carry out a study on direct and indirect discrimination on the basis of social origin, including in connection with other grounds, as it previously suggested. The Committee urges the Government to work with the Institute and the social partners to study the extent of direct and indirect discrimination in employment and occupation on the basis of social origin and to include the ground of social origin in the equal treatment legislation, and to report on the progress made in this regard. The Committee asks the Government to continue providing information on cases, if any, brought before the Institute or the courts regarding discrimination based on social origin, including in connection with other grounds, or judicial or administrative decisions interpreting Article 1 of the Constitution to include discrimination based on social origin.

Discrimination based on sex. Sexual harassment. The Committee recalls its previous comments in which it noted that sections 1(3)(e) and 3(2) of the Labour Conditions Act only refer to sexual harassment in the context of the definition of “psychological burden” and the obligation of the employer to adopt a policy in this regard. The Committee notes the information provided by the Government on the measures taken to monitor sexual harassment, including a self-inspection tool for employers developed by the labour inspectorate; a campaign against harassment, including sexual harassment; and a website providing information on how to recognize and address sexual harassment in the workplace. The Government also refers to specialized training for labour inspectors on labour exploitation and inspection programmes in the agricultural and green sector, and the cleaning and intermediaries sectors, paying special attention to recognizing sexual harassment in this context. While welcoming these initiatives, the Committee notes that this information fails to indicate how the different monitoring and awareness-raising activities specifically address both hostile environment and quid pro quo sexual harassment in the private and public sectors, and it asks the Government to provide detailed information in this regard. The Government is asked to include specific information on the outcome of the inspection activities in the agricultural and green sector, and the cleaning and intermediaries sectors with respect to sexual harassment.

Article 1(2). Inherent requirements of the job. The Committee previously asked the Government to provide information on the practical application of section 5(2)(a) and (b) of the Equal Treatment Act (which allows religious or ideology-based institutions and institutions founded on political principles to be exempted from the non-discrimination principle). The Committee notes that the Law of 4 July 2014 amending the Civil Code and the Equal Treatment Act inserted a new subsection (2)(a) in section 5 of the Equal Treatment Act, pursuant to which local governments are permitted to refuse to appoint civil registrars on the basis of religion or conviction where the registrars themselves treat differently certain groups based on prohibited grounds, for example where a registrar refuses to conduct a same-sex marriage on religious grounds. The Government explains that the purpose of this amendment is to ensure that officials of the Civil Registry fully implement the law and do not discriminate in the performance of their duties by refusing to fulfil certain kinds of ceremonies that are allowed under national law. With regard to measures to ensure that under the Equal Treatment Act exceptions to the application of the prohibition of discrimination do not lead to discrimination based on religion or sexual orientation in practice, the Government indicates that section 5(2) of the Equal Treatment Act was amended by the Law of 21 May 2015 and now requires that the organization or institution has to demonstrate that any occupational requirement is genuine, legitimate and justified, having regard to the organization’s ethos. This requirement may not lead to discrimination on any other ground referred to in section 1 of the Equal Treatment Act and must be proportional taking into account the presumed good faith and loyalty to the principles of the organization or institution. The Committee asks the Government to provide information on the practical application of sections 5(2)(a) and 5(2) of the Equal Treatment Act, including any decisions by the Institute or the courts demonstrating that distinctions based on the inherent requirements of the job related to religion, conviction or political opinion are interpreted restrictively within the meaning of Article 1(2) of the Convention, and do not lead to discrimination based on religion, political opinion or sexual orientation in practice.

Article 2. Equality of opportunity and treatment for men and women. The Committee notes the information provided by the Government on the measures taken to improve employment opportunities for working parents, including: (i) fiscal incentives aimed at investing in affordable childcare; (ii) measures to improve the quality of childcare facilities; (iii) amendments to the Work and Care Act, 2015, to make leave more flexible, remove administrative impediments and broaden the scope of leave arrangements; and (iv) the entry into force in 2016 of the Act on Flexible Work, which grants employees the right to change their total working hours or working time, or to request a change of workplace. The Government further provides statistics which indicate that a lower employment rate of mothers with young children (75.9 per cent compared to 93 per cent of fathers), especially of single mothers (59.5 per cent compared to 75.5 per cent of single fathers). The Committee further notes that, according to the most recent Emancipation Monitor 2016, published by the Netherlands Institute for Social Research, the share of women with a secondary senior vocational, university or applied sciences or university qualification who are in full-time employment is lower than that of men, and that almost three quarters of working women have a part-time job. Nearly six out of ten women working part time give household and caring responsibilities as the most important reasons for not working longer hours. With respect to measures to assist workers with family responsibilities, the Committee refers to its comments on the Workers with Family Responsibilities Convention, 1981 (No. 156). The Emancipation Monitor further indicates that, while gender segregation is decreasing, in 2015 almost half of working women were employed in the civil service or the care sector (compared to only 17 per cent of working men), and that only 3 per cent of all working women are employed as managers (compared to 8 per cent of working men). Part of this difference appears to be due to part-time work and fewer management roles in sectors where many women are employed. The Committee notes the Monitor’s assessment that progress has been slower than initially expected, which may be due to the impact of two economic crises, but also to prevailing stereotypical views of the roles of men and women, leading to stereotyping and assumptions about women’s ambitions and qualities; part-time work is still very much embedded in many institutions (for example, school hours, maternity leave and the expectation of formal childcare provision, etc.). The Committee asks the Government to identify the specific steps taken to address prevailing stereotypes of the roles of men and women in the family and the labour market which can lead to stereotyping and assumptions about women’s ambitions and preferences with respect to full-time and part-time work. The Committee also asks the Government to evaluate whether the steps taken to improve the opportunities for women working part time to work longer hours or engage in full-time employment, if they so wish, are achieving their aims, and to report on the progress made. The Committee further asks the Government to identify the specific steps taken to increase women’s representation in management positions, including in a wider variety of sectors and occupations, and to provide relevant statistics, disaggregated by sex and employment type.

Equality of opportunity and treatment of persons of African descent. The Committee notes the report of the Working Group of Experts on People of African Descent on its mission to the Netherlands (26 June–4 July 2014) which indicates that poverty is the main challenge faced by people of African descent in the Netherlands, compounded by wage gaps, high unemployment, lack of political participation and the lack of effective national institutions to address the situation. Discrimination against people of African descent in the area of access to employment remains a concern and women of African descent suffer compounded discrimination based on racial or ethnic origin, skin colour, socio-economic status, gender, religion and other status. The Working Group also noted the very low percentage of people of African descent among public employees, in particular in senior positions (A/HRC/30/56/Add.1, 20 July 2015, paragraphs 30, 53, 56–58, 60 and 80). The Committee asks the Government to identify the specific measures taken or envisaged, including under the Action Plan on Labour Market Discrimination, to eliminate discrimination against men and women of African descent and to promote their equality of opportunity and treatment in employment and occupation, including through positive measures addressing their specific needs, particularly with respect to access to employment and wages.

Enforcement. The Committee notes that a special labour discrimination team was established in the labour inspectorate in January 2015 to investigate whether policies are in place on the prevention of discrimination in the workplace and to require employers to draw up such a policy, where there is none. Risk areas and indications of possible discrimination identified by the Institute and the Anti Discrimination Services (ADVs) are taken into account in the selection of workplaces for investigation. The Government reports that in 2015 the team visited 80 companies and that 200 company visits were planned for 2016. The Government adds that in 80 to 90 per cent of the visits the inspection team imposed a “requirement to comply” on companies not meeting the statutory duty to implement an anti-discrimination policy. In the case of inadequate improvement after re-inspection, an administrative fine can be imposed. The Committee notes that, during the period 2013–16, the labour inspectorate received 66 complaints or reports of discrimination in the workplace (an average of 16 a year). Regarding measures to address gaps in the functioning of the ADVs, the Government indicates that in its advice of 2014 the Social and Economic Council stressed the importance of victims of discrimination being able to report to the ADVs, the Institute or the police, because this could result in greater insight into the nature and extent of discrimination and allow it to be tackled effectively. The Government reports that under the Action Plan on Labour Market Discrimination a working group has been established to draw up quality guidelines for the ADVs, which has resulted in further studies on the possibility of strengthening their performance (Action J). A “guideline on discrimination” to increase public willingness to report on discrimination has also been developed and published on the dedicated website for questions, advice and complaints regarding discrimination (Action O). The Committee welcomes these measures and asks the Government to provide information on the outcome of the activities of the labour discrimination team in the labour inspectorate, including the number of companies that have adopted a workplace policy or taken remedial action after having received a “requirement to comply”, or which have been fined for non compliance. The Committee also asks the Government to provide the results of the studies on strengthening the performance of ADVs (Action J), and any follow-up action taken, as well as information on the number and nature of the complaints submitted to the ADVs, the Institute or the courts regarding non compliance with the legislative provisions on equality and non-discrimination.