Observation (CEACR) - adoptée 1996, publiée 85ème session CIT (1997)

The Committee notes with interest the information provided by the Government in its report and in the attached documentation.

1. In a previous comment, the Committee noted comments by the Netherlands Trade Union Confederation (FNV) stating that the various forms of flexible employment relationships, which were undertaken mainly by women, were a primary source of pay inequality. The Committee notes with interest that the issue of the lower pay received by women employed on a flexible basis (temporary contract and an hourly wage) in relation to the pay received by full-time employees on permanent contract led to a case before the Supreme Court (Agfa judgement, 8 April 1994, Case No. 15 292). The district court had upheld the plaintiff's claim for equal pay on the grounds that the employment relationship between the plaintiff and her employer was virtually the same as that between full-time employees and the employer (in terms of the long duration and permanent character of her activities) deciding that, accordingly, the original character of the employment relationship had disappeared. The district court took into account the generally accepted principle that employees are entitled to fair pay, which means, inter alia, that equal work performed in the same conditions should receive equal pay, unless there are objective grounds that justify otherwise and held that under section 1638z of the Civil Code - which requires acting as a good employer - that the employer was obliged to remunerate the plaintiff in the same manner as her colleagues on permanent contracts. The Supreme Court upheld this judgement.

2. In this connection, the Committee also notes with interest that the Parliament enacted legislation (with effect as from 1 November 1996), which prohibits discrimination between employees on the basis of their working hours, and as regards the conditions under which an employment contract is entered into, extended or terminated. According to the Government, this means that action against unequal treatment on the grounds of working part time can be taken by means of a less complicated procedure than invoking the ban on indirect sex discrimination. The Government also considers this improvement in the legal status of part-time workers might encourage more men to undertake part-time jobs, thereby promoting a more equal distribution of paid and unpaid work between men and women. The Committee requests the Government to provide copies of this legislation and to furnish information on its application in practice.

3. The Committee is addressing a request directly to the Government on certain other points.