Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee also notes the observations of the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation for Professionals (VCP) received on 29 August 2019, as well as the additional observations of the CNV and the FNV received on 24 September 2020, which were also transmitted by the Government.

Article 1(1)(a) of the Convention. Discrimination based on social origin. The Committee recalls that social origin does not figure among the prohibited grounds of discrimination set out in the Equal Treatment Act, but that the Government considers that this ground is covered by article 1 of the Constitution prohibiting discrimination “on any grounds whatsoever”. It previously noted the FNV’s and CNV’s observations concerning the urgency of including “social origin” in the list of prohibited grounds of the equal treatment legislation, urging the Government to work with the Netherlands Institute of Human Rights (hereinafter “the Institute”) on this issue. The Committee notes the Government’s repeated statement, in its report, that it has no intention of including the ground of “social origin” in its national legislation since it considers it to be sufficiently covered by indirect discrimination based on one of the other grounds of discrimination such as race, nationality, religion or personal convictions, gender or civil status, covered by the Equal Treatment Act. The Government adds that as a result of an evaluation carried out in 2017 on the Equal Treatment Act, the Institute did not conclude that the Act was too narrow. The Committee takes note of this information. However, it observes that the Government did not provide information on (1) any case of discrimination on the ground of “social origin” dealt with by competent authorities, or (2) any decision interpreting article 1 of the Constitution as including discrimination on the ground of “social origin”. In order for the Committee to be in a position to assess the extent of the protection provided for by article 1 of the Constitution, the Committee again asks the Government to provide information on any administrative or judicial decisions interpreting such provision, in particular with regard to discrimination on the ground of social origin, as well as on any awareness-raising activities undertaken in that regard, in collaboration with workers, employers and their respective organizations. It further asks the Government to provide information on the number, nature and outcome of any cases of discrimination on the ground of social origin, including in connection with other grounds, dealt with by labour inspectors, the Netherlands Institute of Human Rights, the courts or any other competent authorities. Finally, the Committee asks the Government to provide information on any measures taken or envisaged in collaboration with the social partners, to prohibit expressly direct and indirect discrimination on the ground of social origin in its national legislation.

Discrimination based on sex. Pregnancy and maternity. The Committee notes the Government’s statement that a “Baby and Job” online campaign was launched to raise awareness about pregnancy discrimination against women between 20 and 36 years of age, as well as available remedies in case of pregnancy discrimination. It further takes note of the adoption of an Action Plan on Pregnancy Discrimination in 2017. The Committee however notes, from the 2019 Government’s report under the national-level review of implementation of the Beijing Declaration (Beijing+25 national report), that pregnancy discrimination remains a common obstacle to women’s participation in employment. In 2017, the Institute received 1,470 complaints or enquiries related to pregnancy discrimination, as well as 52 “requests for a ruling” in cases of alleged pregnancy discrimination. Of the 432 requests for a ruling actually investigated and adjudicated by the Institute during the year 2017, 51 involved alleged pregnancy discrimination (page 53). In that regard, the Committee notes that the FNV, the CNV and the VCP highlight that the focus of the Government’s policies for combating pregnancy discrimination should be broader as it is estimated that 52 per cent of pregnant workers are still facing some form of pregnancy discrimination. Recalling that distinctions in employment and occupation based on pregnancy or maternity are discriminatory as they can by definition only affect women, the Committee asks the Government to provide information on the proactive measures taken to ensure that women are effectively protected against pregnancy or maternity discrimination in practice. It asks the Government to continue to provide information on any awareness-raising activities of the rights of women workers linked to pregnancy and maternity implemented, targeting more particularly workers, employers and their respective organizations. The Committee further asks the Government to provide information on the number of cases of pregnancy or maternity discrimination in employment and occupation detected by or reported to labour inspectors, the Netherlands Institute for Human Rights or the courts, as well as the sanctions imposed and remedies provided.

Sexual harassment. The Committee recalls that the Labour Conditions Act refers only to sexual harassment in the context of the definition of “employment-related psychological pressure” and the obligation of the employer to adopt a policy in this regard (sections 1(3)(e)) and 3(2)). It previously noted the measures taken to raise awareness of and monitor sexual harassment at the workplace. The Committee notes the reference made by the Government to several activities undertaken for promoting a safe working culture and tackling undesirable behaviours, including sexual harassment. The Government adds that the action programme “Violence does not belong at home” also examined the role that employers can play in identifying domestic violence early and engaging in discussions about it. The Committee takes note of this information. It notes, however, the lack of information provided by the Government on the manner in which such activities specifically address both hostile environment and quid pro quo sexual harassment in the private and public sectors. Recalling that sexual harassment is a serious form of sex discrimination, the Committee notes that the FNV, the CNV and the VCP indicate that a research they carried out shows that 50 per cent of workers have experienced some form of sexual harassment at work, with women being mostly victims of the most serious forms of sexual harassment, such as unwanted touching. The research also shows that 20 per cent of workers were not familiar with the employer’s policy on sexual harassment. The Committee further notes that, in the trade unions’ view, the role of employers with respect to domestic violence is essential, as victims of domestic violence are often harassed at work, and social partners also have a role to play in that regard. With regard to its previous request, the Committee notes the Government’s reply that, the labour inspectorate has no active projects in the agricultural and green sectors and the cleaning and intermediaries sector, but that it did inspect signals from the agricultural and green sectors for undesirable behaviours and work pressure. It further notes the Government’s indication that no inspection has been carried out specifically on sexual harassment but that on average the labour inspectors received between five and ten reports alleging sexual harassment per year. If such a report arrives, the responsible employer is eligible for an active policy inspection. The Committee notes that, in its 2019 concluding observations, the United Nations Human Rights Committee expressed concern at the absence of comprehensive data collection relating to violence against women (CCPR/C/NLD/CO/5, 22 August 2019, paragraph 32). Recalling that the Convention covers both quid pro quo and hostile environment sexual harassment, the Committee again asks the Government to provide information on the specific measures taken to effectively prevent and combat all forms of sexual harassment at work, including by raising awareness of workers, employers and their respective organizations. It also asks the Government to provide information on the impact of the measures undertaken to that end, both in the public and private sectors. Finally, the Committee asks the Government to provide information on the number of complaints or cases of sexual harassment at work dealt with by labour inspectors, the Netherlands Institute for Human Rights or the courts, as well as the sanctions imposed and remedies provided.

Article 1(2). Inherent requirements of the job. The Committee recalls that section 5(2)(a) to (c) of the Equal Treatment Act allows institutions founded on religious, ideological or political principles, as well as private educational establishments, to impose requirements which, having regard to the purpose of the institution, are necessary for the fulfilment of the duty attached to the post, provided that such requirements do not lead to discrimination on the sole grounds of political opinion, race, sex, nationality, heterosexual or homosexual orientation or civil status. It previously noted that section 5(2), as amended in 2015, now requires that the organization or institution demonstrate that any occupational requirement is genuine, legitimate and justified, having regard to the organization’s ethos, and requested the Government to provide information on the application of these provisions in practice. The Committee notes the Government’s indication that no request had been received yet for an opinion on this section. The Government adds that no judicial decision has been made on the basis of these provisions. The Committee again asks the Government to take the necessary measures to ensure that exceptions to the application of the prohibition of discrimination for religion or ideology-based institutions under section 5(2)(a) of the Equal Treatment Act do not lead, in practice, to direct or indirect discrimination based on religion, political opinion or sexual orientation, and to provide information on any cases addressed by the competent authorities involving section 5(2)(a) to (c).

Articles 2 and 3. Equality of opportunity and treatment of men and women. In reply to its previous comments, where it noted the persistent prevalence of stereotypes on the roles of men and women in the family and the labour market, the Committee notes the Government’s general indication that several measures are being implemented to address gender stereotypes in education and the labour market and enhance a better conciliation of work, care and learning, in particular in the framework of the “Work and the Future” partnership. The Government adds that several measures have been taken to encourage women’s participation in employment such as (1) the extension of the duration of the paternity leave and the parental leave; and (2) awareness-raising campaigns to enhance a better conciliation between work and family responsibilities, such as the “Work and Care” campaign launched in 2019 to encourage employers, workers and their respective organizations to discuss ways to achieve a good balance between work and family responsibilities. The Committee notes, from the statistical information submitted by the Government, that the net employment rate for women increased from 51.2 per cent in 2017 to 54.5 per cent in 2018. It however notes that, in 2018, only 29 per cent of women had a full-time job. Noting the Government’s indication that the average weekly working time of women progressed slowly from 27 hours in 2015 to 28 hours in 2017, compared to 39 hours for men, the Committee notes that, in their supplementary observations, the FNV and the CNV point out that, as a result of the COVID-19 pandemic, the number of hours worked by women declined more rapidly than the number of hours worked by men; a situation which had a negative impact on the labour market position of women. In that regard, the Committee notes the Government’s indication that it has decided to undertake an Interdepartmental Policy Study (IBO) to explore the causes and effects of part-time work, as well as possible obstacles to working more or fewer hours, in order to develop relevant policy packages. As regards women’s representation in management positions, the Government states that the rate is rising too slowly as, mid-2017, women represented only 11.7 per cent of members of boards of directors and 16.2 per cent of members of supervisory boards. The Committee further notes, from the statistical information provided by the Government, that segregation of the labour market persists with women being under-represented in technical professions, while men are under-represented in healthcare. The Government indicates that market segregation is mainly due to education choices but that progress has been made as, in 2017, women represented 36.2 per cent of first-year students in mathematics, physics, information and technology (compared to 26.5 per cent in 2007) and 19.3 per cent of persons involved in technical training and vocational education (compared to 14.5 per cent in 2007). The Committee welcomes this information. It however notes that, in their observations, the FNV, the CNV and the VCP, while welcoming the efforts made by the Government to address gender stereotypes, consider that a set of comprehensive actions is needed to effectively achieve a more equal position for women in the labour market, as they are still overrepresented in the education, health care, childcare, cleaning and retail sectors. The Committee asks the Government to continue to provide information on the measures taken to effectively promote gender equality in education, employment and occupation, including by: (i) addressing gender stereotypes and occupational segregation; (ii) increasing the participation of women in decision-making positions; and (iii) enhancing opportunities for women working part time to work longer hours or engage in full-time employment, if they so wish. It asks the Government to provide information on any assessment made of the impact of such measures, as well as on any obstacles identified for women to work longer hours or full time, in particular as a result of the planned Interdepartmental Policy Study on part-time work. The Committee further asks the Government to provide statistical information on the distribution of men and women in full-time and part-time employment, disaggregated by economic sector and occupation.

Equality of opportunity and treatment of persons of African descent. Referring to its previous comments where it noted that discrimination against people of African descent in the area of access to employment remains a concern and that women of African descent suffer multiple forms of discrimination based on racial or ethnic origin, colour, socio-economic status, gender, religion and other status, the Committee notes the Government’s indication that no specific policy or measures have been developed for people of African descent who benefit from the actions implemented, in the framework of the Action Plan on Labour Market Discrimination, for all people with non-Western migration background. Referring to its observation made on the application of the Convention, the Committee asks the Government to provide information on the impact of the measures taken in the framework of the Action Plan on Labour Market Discrimination with respect to the elimination of discrimination and the promotion of equality of opportunity and treatment in employment and occupation of persons of African descent. It further asks the Government to provide information on any case of discrimination in employment and occupation against persons of African descent dealt with by the competent authorities.

Enforcement. The Committee previously noted that a special labour discrimination team had been established in the labour inspectorate in January 2015 to investigate whether policies are in place for the prevention of discrimination in the workplace. It notes the Government’s indication that, in 2018, this team visited 450 companies and in 70 to 80 per cent of cases requested the company to adopt a policy or to make some adjustments. The Government adds that in most cases, companies followed the recommendations made and an administrative fine was imposed only in one case. As regards the measures to address gaps in the functioning of the Anti-Discrimination Services (ADVs) as a result of the two studies carried out in the framework of the Action Plan on Labour Market Discrimination, the Committee notes the Government’s statement that three possible solutions have been identified, namely to: (1) enhance better cooperation between the ADVs and the local authorities; (2) strengthen the monitoring of the municipalities on whether they meet the requirements provided for under the Law establishing the system of ADVs; and (3) encourage smaller municipalities to formulate an anti-discrimination policy. The Government further indicates that meetings are being held with relevant stakeholders in that regard. The Committee notes, from the statistical information provided by the Government, that in 2018, the ADVs registered 4,320 notifications and the Front Office of the Institute received 3,168 notifications and requests on equal treatment. Furthermore, in 2018, the Institute received 510 requests for opinions on discrimination mainly on the grounds of sex and race and issued 149 opinions in almost half of which it concluded that there was an infringement of the legislation. The Committee notes that, in their additional observations, the FNV and the CNV point out the persistence of discrimination in the labour market. The Committee asks the Government to continue to provide information on the activities of the labour discrimination team of the labour inspectorate, particularly with regard to measures to prevent and address discrimination in the workplace, as well as on the number, nature and outcome of cases of discrimination in employment and occupation dealt with by labour inspectors, the Netherlands Institute for Human Rights, the courts or any other competent authorities. It further asks the Government to provide information on the measures implemented by the Government to improve the functioning of ADVs following the consultations held with different stakeholders.