Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the comments attached to the Government’s report of the Trade Union Confederation Middle Categories and Senior Staff Unions (MHP) of 17 August 2006 and the Confederation of Netherlands Industry and Employers (VNO–NCW) of 13 July 2006 concerning the application of the Convention.

1. Article 3 of the Convention. Protection against discrimination. With respect to its previous comments on the practical application of the Equal Treatment (Working Hours) Act of 1996, the Committee notes the information provided by the Government regarding the criteria used to test the “objective reasons” exception in the Act which, according to the Government, are in line with those applied in the context of other equal treatment legislation and the case law of the European Court of Justice. The Government indicates that the criteria for the objective reason exception were formulated strictly in order to ensure that workers with family responsibilities receive adequate protection against discrimination. The Committee further notes the conclusions of the evaluation undertaken by the Equal Treatment Commission (ETC) in 2004 that the Equal Treatment (Working Hours) Act is well applied in practice and that employers, the Government and parties to collective agreements are complying overall with the rulings of the ETC. The Committee asks the Government to continue to provide information on the practical application and enforcement of the Act, including any judicial and administrative decisions concerning cases where family responsibilities have been considered an objective reason to discriminate against employees on the basis of their working hours.

2. Article 4(b) Terms and conditions of employment. Leave arrangements. The Committee notes with interest the adoption of the Work and Care Act of 2001. The Act provides for pregnancy and maternity leave, paternity leave, parental leave, emergency and other short-term leave to care for a sick child, foster child, partner or parent at home, and long‑term leave to care for a partner, child or parent with a life-threatening illness. It also provides for a partial payment in the form of wages or a benefit, except for parental leave and long-term care leave. Further, with regard to leave arrangements, and in particular regarding the practical application of the amendment to the Civil Code and the new civil service regulations providing greater flexibility with respect to parental leave, especially for part-time workers, the Committee notes the information in the Government’s report that women take parental leave more often than men (42 per cent compared to 16 per cent respectively in 2003). The uptake of parental leave is the greatest among employees, mostly women, working between 21 and 32 hours a week (41 per cent of those entitled). Those employees, mostly women, working less than 20 hours and those men and women working more than 32 hours take less leave than the average number of employees. However, in sectors where parental leave is partly paid by the employer, more men make use of the parental leave provisions. The Committee notes in this regard that, as of January 2006, a right to save under the life-course savings scheme was included in the Work and Care Act allowing employees who wish to do so to build up a tax-facilitated balance that can be used to fund periods of unpaid leave. The Committee asks the Government to provide information disaggregated by sex and type of contract (full time or part time), on the number of employees exercising their right to the various leave entitlements under the Work and Care Act. In light of the fact that mostly women make use of the parental leave provisions, please also indicate whether there are any publicity campaigns designed to encourage fathers to use the provisions.

3. Working time arrangements. The Committee notes the Working Hours (Adjustment) Act of 2000 giving the right to employees and civil servants to increase or reduce their working hours. Exceptions are only possible if such a reduction or increase would lead to serious problems in terms of damage to substantial operational or departmental interests. If an employee disagrees with a decision he or she can take the matter to court. The Committee notes that the Act does not apply to organizations with fewer than ten employees, which are obliged to make their own arrangements regarding the adjustment of the hours of work. The Committee asks the Government to provide an information on the following: (1) the number of men and women requesting reduced working hours in order to better combine work with family responsibilities; and (2) the measures taken, together with the social partners, to encourage enterprises with less then ten employees to allow flexible working time arrangements for workers with family responsibilities.

4. Article 5. Childcare facilities. With respect to its previous comments concerning the measures taken to provide childcare in the private and public sectors, the Committee notes the statistical information regarding the further expansion of the childcare capacity from 1999 to 2004. It also notes the adoption of the Childcare Act in 2005, following which the Government no longer subsidizes the supply of childcare places. Instead, the Act provides a statutory right to a childcare supplement, which is income-related, for parents who are working or studying and for parents who belong to specific groups. The Committee notes that as of 1 January 2007 the employers’ contribution under the Act has become mandatory and the Government’s contribution has increased to one third. The Committee further notes the statements made by the MHP that no analysis has yet been made of the effects of the Childcare Act in practice and that informal childcare is still used to a very large extent. The MHP suggests that the law might not yet be optimally functioning because childcare has mainly become less costly for low-income groups but only to a lesser extent for middle-income groups. The Committee further notes that the Labour Foundation has recommended in the past that concerned parties to collective agreements regulate childcare arrangements that are sufficient and, if necessary, reconsider existing regulations. The Committee asks the Government to provide information on the following: (1) the practical effects of the Childcare Act, including any studies or surveys assessing whether the Act in fact responds to the specific needs and preferences of workers with family responsibilities of both low- and middle-income groups for childcare services and facilities; (2) the reasons why still many workers with family responsibilities still appear to make more use of informal childcare services. Please also provide copies of collective agreements including provisions concerning childcare arrangements.

5. Article 6. Promotional and educational measures. The Committee notes the information on the broad consultations with a variety of organizations, including the Netherlands Family Council, held on balancing work and care which resulted in the adoption of the Work and Care Act in 2001 (see also point 2 of this direct request). The Committee asks the Government to indicate whether there are any other campaigns to promote in general the concept of sharing family responsibility between men and women and to educate and inform the public about the objectives of the Convention.

6. Article 7. Measures to enter, to remain in and to re-enter the labour force. Training. With reference to its previous comments, the Committee notes the information provided by the Government on the privatization of the women’s training centres running adult education and reintegration courses. Given the success of these training centres noted in the past, the Committee hopes that the services offered and results achieved will continue to be as effective. The Committee further notes from the Government’s report that women’s and adult education is a key focus of the Working–Learning Project and that almost half the participants in adult education are women, mainly over 45 years of age. However, women take fewer work-related training courses paid by their employer than men, and poorly educated, mostly migrant, women, participate less in adult education than more highly educated women. The Committee asks the Government to indicate the number of women with family responsibilities participating in the Working–Learning Project who have been placed and remained in the labour market and on the measures taken to increase the number of poorly educated and migrant women in adult education. Please also provide information on the reasons why women take fewer work-related training courses paid by the employer.

7. Measures to enter, to remain in and to re-enter the labour force. Employment. With respect to other measures taken to enable workers with family responsibilities to enter, to remain in or to re-enter the labour force, the Committee notes the comments by the VNO–NCW that measures to combine work and care still mainly take the form of part-time employment. The Committee indeed notes from the 2007 report of the study group “Equal Pay Works!” that 49.8 per cent of the women working in the Netherlands in 2005 were employed part time. The Committee further notes that the Working Hours (Adjustment) Act provides for the right to request an increase in working hours that can only be denied if this would cause serious problems of a financial or organizational nature. However, companies may deviate from these regulations if this has been agreed upon in a collective agreement. If there is no agreement on this issue, the employer can deviate from the law on the condition that a written approval is obtained from the works council or staff representatives. The Committee asks the Government to indicate the following in its next report: (1) the number of men and women wishing to return to full-time employment and requesting an increase in working hours, as well as information on any court decisions regarding refusal of an increase in working hours; (2) the economic sectors for which collective agreements allow employers to deviate from the Working Hours (Adjustment) Act and to provide copies of such collective agreements; and (3) in view of the increased capacity of childcare facilities and the special leave and flexible working time arrangements, whether any evaluation has been done of the reasons, why workers with family responsibilities, particularly women, continue to consider part-time employment the best possible option to combine work and family responsibilities.

8. Article 8. Protection against dismissal. With respect to its previous comments concerning the protection against dismissal on the basis of family responsibilities of civil servants on permanent and temporary contracts, the Committee notes the Government’s statement that the same regulations that apply to other employees generally apply to civil servants. The Committee further notes that, according to the Government, the Work and Care Act provides that an employer (public or private) may not terminate a permanent or temporary employment contract because an employee exercises his or her right to leave entitlements provided for in the Act. The Committee asks the Government to indicate in its next report the specific provisions of the Work and Care Act providing this protection against dismissal and to provide information on their practical application, including any judicial or administrative decisions.