Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Pays-Bas (Ratification: 1973)

Autre commentaire sur C111

Observation

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The Committee notes the joint observations of the National Federation of Christian Trade Unions (CNV) and the Netherlands Trade Union Confederation (FNV) received on 30 June 2022 and 30 August 2023, and then communicated by the Government.

Article 1(1)(a) of the Convention.Discrimination based on sex. Pregnancy and maternity. The Committee notes the Government’s statement, in its report, that several awareness-raising activities for workers and employers are being implemented, including in the framework of the Action Plan on Labour Market Discrimination 2022–25, in order to prevent such discrimination. The Government further refers to the Bill on Monitoring Equal Opportunities in Recruitment and Selection that would require employers and intermediaries to have a policy to combat labour market discrimination, including on the basis of pregnancy. The Committee also observes that the Government acknowledges that discrimination based on pregnancy or maternity is still prevalent. In that regard, it also notes that, in its 2021 submission to the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW), the Netherlands Institute for Human Rights (NIHR) highlighted the lack of progress in tackling discrimination based on pregnancy as, according to a study carried out at in November 2020: (1) four out of ten women still experienced such kind of discrimination, a proportion that has remained unchanged since 2012; (2) many cases of discrimination based on pregnancy involve the non-renewal of temporary employment contracts, or a renewal under altered conditions; (3) one out of five women did not get a job because of their pregnancy; and (4) only 11 per cent of the women who had experienced discrimination took action. In that regard, the Committee notes from the Government’s report that only 2 reports concerning potential instances of discrimination based on pregnancy or maternity resulted in an intervention by the National Labour Authority (NLA, formerly the Labour Inspectorate SZW) and observes that such numbers do not seem to reflect the magnitude of the issue in the country. In his regard, the Committee considers that, while the termination of fixed-term contracts at the end of the specified period is in their very nature, any differences in the renewal of such contracts or the initial determination of their duration that are based on pregnancy, real or potential, of the worker, are discriminatory. Furthermore, the Committee notes that, in their joint observations, the CNV and the FNV highlight that the proportion of women exposed to discrimination on the grounds of pregnancy or maternity remains the same over the years and highlight the lack of sanctions imposed to employers on these grounds and effective implementation of the legislation. In this regard, the Committee refers to its 2022 observation on the application of the Maternity Protection Convention, 2000 (No. 183). As discrimination based on pregnancy or maternity in the labour market can constitute an impediment to the wider labour market participation of women, the Committee asks the Government to take steps to effectively address discrimination based on pregnancy and maternity in practice, in all aspects of employment and occupation. It asks the Government to provide information on: (i) any proactive measures implemented to that end, in cooperation with the social partners, including any measures taken or envisaged to address the underreporting of such cases of discrimination, in the framework of the Action Plan on Labour Market Discrimination 2022-2025 and the future legislation on monitoring equal opportunities in recruitment and selection or otherwise; (ii) any assessment made of the results of such measures; and (iii) the number, nature and outcome of cases involving discrimination in employment or occupation based on pregnancy or maternity dealt with by the NLA, the NIHR, the courts or any other competent authorities.

Sexual harassment. The Committee notes with interest that: (1) in April 2022, a Commissioner for sexually transgressive behaviour and sexual violence was appointed to raise awareness and promote cultural change about gender stereotyping and abuse of power that leads to such behaviours; (2) in October 2022, the Government submitted the Sexual Offences Bill to the House of Representatives which defines sexual offences as different types of conduct involving involuntary, unequal or unwanted sexual contact and criminalizes sexual harassment; and (3) in January 2023, a National Action Programme for tackling sexually transgressive behaviour and sexual violence was launched and aims, among others, at preventing and combating sexual harassment at work. The Committee also welcomes the Government’s statement that a Bill to amend the Working Conditions Act was submitted to the House of Representatives in order to introduce an obligation for employers with at least 10 employees to appoint a confidential counsellor for inappropriate behaviours within the company or externally. The Committee notes that the Bill was adopted by the House of Representatives on 23 May 2023 and is under consideration by the Senate. The Government adds that the Minister of Social Affairs and Employment is currently looking into the option of requiring employers to have a complaint mechanism in place. Welcoming this information, the Committee also notes that, according to the National Working Conditions Survey (NEA) published by the Central Bureau of Statistics (CBS), in 2021, one in five employees, especially young women, have been confronted with some form of sexual harassment at work. Employees in the healthcare sector and in the catering sector were the most affected (43 per cent and 31 per cent respectively). In that regard, the Committee notes that, in their joint observations, the CNV and the FNV stress that the legal protection against violence and harassment at work is incomplete and highlight the need for introducing a legal obligation for employers to have a complaint mechanism or a person of trust in the workplace in order to assist victims of harassment and prevent a situation to escalating. In that regard, the Committee notes that in its 2023 submission to the UN Committee on Economic, Social and Cultural Rights (CESCR), the NIHR also highlighted that the existing legal framework does not adequately address and prevent sexual harassment, and highlighted the need for a comprehensive, coordinated and gender-sensitive approach to combat sexual harassment at work, while paying attention to the underlying causes and enhancing employers to take concrete steps against sexual harassment at work. The Committee asks the Government to take steps to ensure that workers are effectively protected against both quid pro quo and hostile environment sexual harassment in employment and occupation, with a specific focus on the sectors in which workers are most exposed to sexual harassment, such as healthcare and catering. It further asks the Government to provide information on: (i) any concrete measures taken, in particular by the Commissioner for sexually transgressive behaviour and sexual violence, to prevent and combat sexual harassment at work, including in the framework of the National Action Programme and as a result of any legislative developments that would occur regarding the above-mentioned Bills; (ii) any assessment made of the impact of these measures; and (iii) the number, nature and outcome of cases of sexual harassment dealt with by the NLA, the NIHR, the courts or any other competent authorities.

Indirect discrimination based on sex. Access to employment-related and social security benefits. Workers in private households. The Committee notes that: (1) pursuant to the Home Services Regulation (RDaH) and Unemployment Act (WW), domestic workers who work four days a week or less in a private household and healthcare workers who are paid on the basis of a personal budget grants by a Government agency (so called ‘PGB’ workers) are excluded from the social security system; and (2) on 30 March 2023, the Central Appeal Board ruled that the exclusion of ‘PGB’ workers from unemployment benefits and the right to social security constitutes indirect discrimination against women, since around 95 per cent of these workers are women. The Central Appeal Board concluded that ‘PGB’ workers should not be excluded from the social security scheme and the years worked as ‘PGB’ workers should be included in their employment history (case No. 22/306 WW). The Committee asks the Government to take the necessary steps, including in collaboration with the social partners, to amend its national legislation in order to ensure that all domestic workers and PGB workers, who are mostly women, are treated on an equal footing to other workers with regard to access to employment-related and social security benefits. Its asks the Government to provide information on any progress made in that regard.

Pension gap between men and women. The Committee notes the Government’s statement that a large part of the gender pension gap is related to the fact that women are still working more in part-time jobs and that measures will be taken to further increase their participation in the labour market. It notes from the Government’s report that, according to the CBS, the expected pension to be achieved has somewhat increased for both men and women (from 2016 to 2021), but is still considerably higher for men compared to women, as women accrue approximately 40 per cent less pension than men (CBS, “Pensioenaansprakenstatistiek”, 15 December 2022). In that regard, the Committee notes, from EUROSTAT, that the gender pension gap only slightly decreased by 1.5 percentage point since 2010 and remained one of the highest in the European Union, being estimated at 39.7 per cent in 2019 compared to 29.4 per cent for the average gender pension gap in the EU countries. The Committee notes that the new Pension System Act (Wtp) of 30 May 2023 entered into force on 1 July 2023. The Government states that, on that occasion, the Parliament adopted a resolution requesting the Government to investigate how to close the gender pension gap in the new pension system (Motie Moonen c.s., Kamerstukken I 2022/23, 36 067, Z). The Parliament will be informed on the outcome of this investigation. With regard to the renewal of the legislation for division of pension in case of divorce in order to achieve better gender equality by ensuring that the partner who has accrued the least pension during the marital period, in practice mainly women, receives an independent entitlement to a pension, the Committee notes from the Government’s report that the proposed legislation is currently under discussion before Parliament. The Committee asks the Government to provide information on: (i) any measures taken to address gender disparity in pensions, including any changes introduced to that end in the legislation, specifically focusing on married women who mainly accrued the least pension and part-time workers who are mostly women; (ii) any assessment made of the impact of these measures; and (iii) the average pension levels for men and women by economic sector.

Article 1(2). Inherent requirements of the job. Noting the absence of reply from the Government on this point and recalling that the concept of inherent requirements must be interpreted restrictively, the Committee 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) 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 the nature, circumstances and outcome of 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. The Committee welcomes the Government’s indication that several measures have been implemented in order to: (1) address gender stereotypes and segregation in the choice of study and occupation; and (2) increase the participation of women in decision-making positions, including through a statutory quota applied to listed companies since 1 January 2022 requiring that at least one-third of positions in their supervisory boards be filled by women and providing that a new appointment that does not contribute to a more balanced ratio of women to men be void. In addition, large companies are also required to set targets regarding gender diversity, draw up a plan for achieving these targets, and report on progress. The Government adds that these measures in the private sector will be supplemented by similar provisions for the public and semi-public sectors with a target figure between 45 per cent and 55 per cent of women in senior positions and an adequate infrastructure for monitoring and sharing of good practices. Welcoming this information, the Committee also notes that, according to the CBS (“Emancipatiemonitor” 2022), in 2021, the employment rate of women remained substantially below than those of men (77.1 per cent and 86.8 per cent respectively) with a smaller proportion of women being economically independent (66.3 per cent of women compare to 81.4 per cent of men). Furthermore, women were still mostly employed in healthcare (80 per cent), education (74 per cent) and services (67 per cent), while men were mostly employed in transport, information and communication and technical occupations (75 per cent). The Committee notes the Government’s statement that the number of women in larger part time jobs (28-35 hours per week) has increased from 21.3 per cent in 2013 to 26.6 per cent in 2021. In that regard, the Government states that, following the recommendations made by the Interdepartmental Policy Study (IBO) on part time work which identified care responsibilities as being the main obstacle for women to do not work longer hours, several measures were implemented such as awareness-raising activities, reorganization of childcare and extension of the childbirth leave and parental leave. The Committee notes that, in their joint observations, the CNV and the FNV express concerns about the accessibility of leave entitlements for lower income groups, as workers who take additional childbirth leave or parental leave will receive a maximum of 70 per cent of their remuneration, which could therefore be below the minimum wage or even the social benefit level. Observing that according to CBS data, in 2021, almost 45 percent of women stopped working or worked fewer hours, after they have children, while men rarely do so (6.6 per cent for men), the Committee refers in that regard to its comments on the application of the Workers with Family Responsibilities Convention, 1981 (No 156). Emphasizing the importance of implementing gender equality measures and reviewing periodically their impact, the Committee asks the Government to strengthen its efforts to address vertical and horizontal occupational gender segregation and gender stereotypes. It asks the Government to provide information on: (i) any measures implemented to enhance women’s representation in non-traditional fields of study and occupations, and their results; (ii) any measures implemented to enhance opportunities for women to work longer hours or engage in full-time employment, if they so wish, including through awareness-raising campaigns addressing the distribution of care work between men and women;and (iii) the distribution of men and women in full-time and part-time employment, disaggregated by economic sector and occupation, where possible.

Equality of opportunity and treatment of persons of African descent. The Committee notes the Government’s statement that the Action Plan on Labour Market Discrimination 2022–25 aims, among others, at promoting equal opportunities for people with a non-Dutch migration background but that no specific action focuses on persons of African descent. The Committee notes that, in its 2021 concluding observations, the UN Committee on the Elimination of Racial Discrimination (CERD) expressed concern about stigmatization and the use of negative stereotypes against people of African descent that continue to be present in society, as well as the lack of disaggregated data on their social and economic situation which prevents the Government from developing targeted and effective measures to address the discrimination against them (CERD/C/NLD/CO/22-24, 16 November 2021, paragraph 27). With reference to its observation, the Committee asks the Government to provide information on: (i) any proactive measures taken to promote equality of opportunity and treatment in employment and occupation of persons of African descent, including in the framework of the Action Plan on Labour Market Discrimination; (ii) any assessment made of the results of these measures; and (iii) the number, nature and outcome of cases of discrimination in employment and occupation against persons of African descent dealt with by the competent authorities.

Awareness-raising and enforcement. The Committee notes from the Government’s report that: (1) in 2022, the NIHR received 234 requests for an opinion regarding discrimination in employment and concluded that discrimination took place in 40 per cent of the cases; and (2) between 2019 and 2022, the NLA conducted a research over 1,000 employers regarding labour market discrimination that showed that many employers did not yet possess a written procedure to prevent discrimination during recruitment process and were unaware of the risks of inadvertent discrimination during job interviews. In that regard, the Committee notes that, on 14 June 2022, the Parliamentary Committee of Inquiry into the effectiveness of anti-discrimination legislation presented its findings in a report entitled ‘Do equal justice’ to identify actions that could be undertaken by the Dutch legislator in order to better address discrimination into four fields: the labour market, education, social security and the police. In September 2022, the Senate adopted a motion asking the Government to respond to the Parliamentary Committee’s recommendations. Furthermore, the Committee notes that, in their joint observations, the FNV and the CNV point out the lack of effective enforcement of the existing legislation. The Committee asks the Government to take steps to raise public awareness of and provide training on the relevant legislative provisions, the procedures and remedies available. It asks the Government to continue to provide information on: (i) any measures implemented to that end, including as a follow-up to the recommendations made by the Parliamentary Committee of Inquiry into the effectiveness of anti-discrimination legislation; and (ii) the number, nature and outcome of cases of discrimination in employment and occupation dealt with by the NLA, the NIHR, the Anti-Discrimination Services or the courts.