Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

Convenio sobre el trabajo a domicilio, 1996 (núm. 177) - Países Bajos (Ratificación : 2002)

Article 1(a) of the Convention. Definition of home work. The Committee notes that, to its knowledge, only section 1.1.5.f of the Working Conditions Decree of 15 January 1997 contains a definition of home work. It also notes that, in its report, the Government does not give a generally applicable definition of home work and confines itself to indicating that homeworkers usually work on the basis of an employment contract, with the existence of such a contract being presumed. The Committee requests the Government to indicate the provisions of the national legislation, in addition to the provision of the Working Conditions Decree referred to above, or the judicial decisions which establish the status of homeworker and the presumption of the existence of a contract of employment.

Article 2. Scope of application. The Committee notes that the Government’s report does not contain information on the application of this provision. It requests the Government to indicate whether the provisions that it has adopted to give effect to the Convention apply to all persons carrying out home work within the meaning of the instrument.

Articles 3 and 5. National policy. The Committee notes with regret that the Government has not provided any information in its report on the existence, implementation and periodic review of a national policy aimed at improving the situation of homeworkers, in consultation with the most representative organizations of employers and workers. The Committee requests the Government to describe in detail its policy in this respect and to indicate the organizations of employers and workers which were consulted on this subject.

Article 4, paragraph 1. Equality of treatment - general rules. The Committee notes that section 5.1 of the Equal Treatment Act of 3 March 1994 prohibits discrimination in a series of fields related to work, but that no provision in this Act provides for the special characteristics of home work to be taken into account. The Committee requests the Government to indicate the measures adopted to ensure that they are taken into account.

Article 4, paragraph 2. Equality of treatment in specific fields. Clause (a). Right to organize. The Committee notes that article 8 of the Constitution recognizes in general terms the right to organize, while also providing that the law may restrict this right in the interest of public order. It requests the Government to provide indications on the specific measures which ensure the protection of this right in the particular context of home work.

Clause (b). Protection against discrimination in employment and occupation. The Committee notes that, in accordance with section 5 of the Equal Treatment Act, referred to above, discrimination is prohibited in relation to the various aspects of the work relationship. However, it notes that this Act does not specifically provide for equality between homeworkers and other wage earners in relation to protection against such forms of discrimination. The Committee requests the Government to indicate the measures taken to ensure such equality in protection against discrimination.

Clause (c) and Article 7. Protection in the field of occupational safety and health. The Committee notes that the Working Conditions Act, 1998, does not exclude homeworkers from its scope of application. However, it notes that, under the terms of section 1.43 of the Working Conditions Decree of 15 January 1997, the latter is not applicable to work carried out at home, unless explicitly provided to the contrary. While recognizing that the exclusion of the application of certain provisions is understandable in view of the very nature of home work, the Committee requests the Government to indicate the reasons why it was not considered appropriate to apply other provisions of the Decree, such as those relating to noise, the organization of the workplace and radiation, to homeworkers. The Committee also requests the Government to indicate the reasons why the provisions applicable to homeworkers in relation to hazardous substances (sections 4.110 to 4.115) are much less detailed than those relating to other workers (sections 4.1 to 4.102). Furthermore, the Committee requests the Government to indicate the types of work which, for reasons of safety and health, are prohibited in home work, as prescribed in Article 7 of the Convention.

Clause (d). Remuneration. The Committee notes that the Minimum Wage and Minimum Holiday Allowance Act, of 27 November 1968, does not exclude homeworkers from its scope of application. However, it notes that, according to the information provided by the Government in its report, under the terms of the Decree of 2 September 1996 (not available to the Office), the above Act is only applicable to them under certain conditions (work for a minimum of five hours a week, etc.). The Committee requests the Government to provide a copy of this Decree. Furthermore, the Committee notes that the Government only refers in its report to the legislation on the minimum wage and does not specify the manner in which equality of treatment between homeworkers and other wage earners is secured in respect of remuneration in the broad sense. The Committee requests the Government to provide additional information on this subject.

Clause (d). Protection by statutory social security schemes. The Committee notes with regret that the Government does not provide any information in its report on equality of treatment in relation to protection by statutory social security schemes. It requests the Government to provide any relevant information on the application of this provision of the Convention.

Clause (f). Access to training. The Committee notes that section 5.1 of the Equal Treatment Act prohibits discrimination in relation, among other matters, to the possibility to follow education, apprenticeship or training during or prior to the beginning of the work relationship. However, it notes that the Government does not provide any information in its report on specific measures to secure equality of treatment between homeworkers and other wage earners in this field. The Committee requests the Government to provide any relevant information on the application of this provision of the Convention.

Clause (h). Maternity protection. The Committee notes that Chapter 3 of the Work and Welfare Act of 16 November 1991, contains provisions respecting maternity. It also notes that section 1 (maternity leave) only applies to women workers within the meaning of section 1.1.b of the Act, whereas section 2 establishes the right to maternity allowances for women workers (section 3.7), as well as for "assimilated persons" (3.8.1). The Committee further notes that "assimilated persons" are defined in section 3.6 as those who are not considered to be workers within the meaning of section 1.1.b of the Act, but who are within the meaning of section 1(2) of the Act of 5 June 1913 on workers’ health insurance (hereinafter, the Health Insurance Act). The Committee also notes that this section of the Health Insurance Act defines in section 3.1 the term "worker" as a physical person under 65 years of age who is engaged in a private or public law employment relationship. Finally, the Committee notes that under section 5.1 of the Health Insurance Act, regulations may provide that the work relationship of a homeworker shall be considered to be an employment relationship for this purpose. The Committee observes, from a reading of these provisions, that homeworkers are not automatically considered to be "assimilated persons", who benefit from the right to maternity benefits, as this requires the adoption of regulations. The Committee requests the Government to indicate whether such regulations have been adopted and, if so, to provide a copy. Furthermore, the Committee notes that, in any case, "assimilated persons" are only entitled to benefits and not to maternity leave. It requests the Government to provide additional information on the reasons for this exclusion. Finally, the Committee recalls that maternity protection measures are not confined to leave and financial benefits, but also include the protection of the health of the mother and child, medical care, transfer to more appropriate work where necessary, protection against dismissal and nursing breaks. The Committee requests the Government to indicate the measures adopted to secure equality of treatment between homeworkers and other wage earners in these various fields.

Article 6. Statistics. The Committee notes that, according to the information provided by the Government in its report, Statistics Netherlands (CSB) was due to undertake a survey in 2004 on how to take into account home work in the questions contained in the labour force survey, and that the first data could be available in 2006. It notes that the Government also refers to a survey published in 1998 by the labour inspectorate according to which the number of homeworkers in the industrial sector is in sharp decline. The labour inspectorate is also reported to have concluded that there is only a small safety risk for homeworkers, who usually work without machines. The Committee requests the Government to provide a copy of this survey and to supply as soon as possible the results of the latest labour force survey, with the data disaggregated by sex. The Committee also notes that the Government refers to a private study (Ernst & Young ICT Barometer 2004), according to which there is an increase in the number of employees working at home in the information and communication technology (ICT) sector, often for only part of their working time and mainly in enterprises with fewer than 20 employees. The Committee requests the Government to provide a copy of this study.

Article 8. Intermediaries. The Committee requests the Government to indicate whether the use of intermediaries in home work is permitted and, if so, to provide copies of the provisions determining the respective responsibilities of employers and intermediaries in this context.

Part V of the report form. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice and to indicate how the application of legal provisions is enforced in the context of home work, where they are by definition more difficult to supervise. The Government is also requested to provide extracts from inspection reports and, if possible, information on the number and nature of infringements reported.

Finally, the Committee requests the Government to provide copies of certain documents referred to in the comments made by the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation of Middle and Higher Level Employees (MHP): the opinion of the Economic and Social Council of 2004 on the coverage of the social security legislation and self-employed workers; the Explanatory Note prepared by the Government with a view to the examination by Parliament of the Bill for the ratification of the Convention in 2001; and the recommendation of the Economic and Social Council on telecommuting.