Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Equal Remuneration Convention, 1951 (No. 100) - Netherlands (Ratification: 1971)

The Committee notes the Government’s report and attached documentation as well as the report submitted in relation to Convention No. 111. The Committee also notes the comments and additional information supplied by the Netherlands Trade Union Confederation (FNV).

1. The Committee notes the legislative developments concerning sex discrimination. It notes that in order to implement the Council Directive 98/52/EC of the Council of the European Union on the implementation of the burden of proof in cases of sexual discrimination, the Equal Opportunities Act and the Civil Code were amended. Under the new article 6a of the Equal Opportunities Act and article 7:646(8) of the Civil Code the burden of proof shifts to the defendant in cases of alleged discrimination. In this regard, the Committee notes that the study on the possibility of streamlining regulations regarding equal treatment was presented to Parliament in 1999 as part of the evaluation of the Equal Treatment Act (see paragraph 6) and it concluded that streamlining is not desirable in every case, but as far as the burden of proof was concerned the EU system could be applied in all cases. The Committee further notes that on 1 October 2000 the two year limit for equal pay claims established under section 11 of the Equal Opportunities Act was abolished and replaced with the customary time limit for pay-related claims of five years. The Committee notes with regret that the bill to amend section 7 of the Act, which provides that a woman can submit a claim for equal pay on the basis of a comparison of the salary a man earns for the work of equal or almost equal value performed "within the same enterprise", was discarded. The amendment was aimed at widening the scope for establishing a benchmark salary but was put aside on the basis that the Equal Treatment Commission gives a broad interpretation of the term "same enterprise". The Committee draws the attention of the Government to the fact that even though the Equal Treatment Commission interprets the notion of "same enterprise" in a wide manner, the explicit inclusion in the text of the law of a broader benchmark would have been a guarantee against future possible narrow reading of the existing provision. Finally, the Committee notes that on 1 January 2001 a new Act entered into force amending the Pension and Saving Funds Act, among other laws. Noting with interest that the Act, in application of the principle of equal treatment of men and women, requires equal benefits for men and women in all respects, including option modules and contributory arrangements, the Committee asks the Government to provide a copy of the Act with its next report.

2. The Committee notes that according to the survey conducted by the Labour Inspectorate on the position of men and women in the private and public sectors in 1998, the wage gap did not decrease between 1996 and 1998. As in 1996, women working in the private sector earned on average 23 per cent less than men, while in the public sector the wage gap amounted to 15 per cent. Taking into consideration individual and job-related factors, in the private sector there was still an unexplained gap of 7 per cent and, in the public sector, a gap of 4 per cent, which could therefore be attributed, at least partly, to sex discrimination. The Committee invites the Government to continue providing data on the wage differentials between men and women in the private and public sector.

3. The Committee notes with interest that the Government adopted in May 2000 an Equal Remuneration Plan of Action. The Committee asks the Government to provide a copy of the Action Plan and information on the implementation activities and measures put in place or contemplated and on their impact. The Committee notes the indication of the Netherlands Trade Union Confederation (FNV) that in the annex to the Action Plan a legal analysis of requirements of job evaluation schemes with regard to equal remuneration was published. Noting that this report is part of a three-stage study commissioned by the Ministry of Social Affairs and Employment aimed at developing an instrument to screen job evaluation systems for gender neutrality, the Committee asks the Government to send a copy of the report already published as well as the report on the other two stages of the study as soon as available. In relation to job classification, the Committee also notes that on 28 May 1998 the Equal Treatment Commission handed down a decision on the basic job evaluation system in the health-care sector, according to which the application of this system can lead to indirect discrimination on grounds of gender and thus contravenes equal treatment legislation. Noting that, following the Commission’s recommendations, a revised job evaluation system is now in place, the Committee asks the Government to provide a copy.

4. The Committee notes that between 1 June 1998 and 13 April 2000 the Equal Treatment Commission handed down seven decisions on discrimination between men and women in relation to pensions schemes which provide more than the statutory minimum requirements. In four cases the Commission found that the relevant schemes were discriminatory. According to the observations of the FNV at least one of these decisions was not endorsed by the Court and female categories of workers were excluded from the pension schemes. The Committee invites the Government to continue providing information on the practical application of the amendments to the Equal Opportunities Act and the Civil Code, which guarantee equality of treatment between men and women in respect to pension schemes, as well as on decisions handed down by the Equal Treatment Commission. Information should also be provided on any other relevant judicial rulings. The Committee notes the FNV’s observation that, although direct discrimination against women and discrimination against part-timers, who are predominantly women, in pension schemes have to a large extent disappeared thanks to legal restrictions and European jurisprudence, two major problems still exist. The first is that employers and pension schemes are resisting the application of the EC Court of Justice’s ruling of 1994 according to which women and part-timers ought to have had access to pension schemes since April 1976. In this respect, it has to be taken into account that in December 1999 the High Court/Supreme Court ruled that the term of limitation was 30 years under the old Civil Code with the effect that reparation had to go back to April 1976. In addition, on 6 November 1998 the Supreme Court handed down a ruling admitting with retrospective force a retired stewardess to a more favourable occupational pension scheme, which was open only to pursers and assistant pursers, jobs for which women were not eligible at the time. The Committee asks the Government to supply information on any initiatives taken to guarantee women access to pension schemes according to this jurisprudence. The second problem pointed out by the FNV is that one out of five female workers does not participate in pension schemes compared to one out of 20 male workers. According to the FNV the reason for the limited participation of women is that they work in jobs which are excluded, such as administrative ones, or because temporary workers are excluded. The Committee asks the Government to provide information on the categories of jobs which are excluded from pension schemes and statistical data on the numbers of men and women employed.

5. The Committee notes the information on the decisions handed down by the Equal Treatment Commission between 1998 and 2000 concerning the Equal Treatment (Working Hours) Act. The Committee invites the Government to continue to provide information on the decisions of the Commission as well as on any relevant judicial rulings. The Committee further notes the information on the study of the Labour Inspectorate on the distinctions made, as at 31 December 1998, between full-time and part-time workers in 118 collective agreements covering around 3.8 million employees. The study found that 17 agreements, mainly in the commercial sector, apply only partially or not at all to part-time workers who work only 12-13 hours. This figure was approximately the same in 1991. However, the proportion of agreements providing that that the agreement will be applied proportionally increased from 21 per cent in 1991 to 32 per cent in 1998. The Committee notes that women are the most affected by these agreements because they are over represented among part-timers. Noting that the Government has decided to repeat the study on collective agreements, the Committee asks the Government to provide it as soon as completed. Please, also provide a copy of the report. The Committee also notes that following the Labour Inspectorate’s study, the Labour Foundation evaluated collective agreements in the light of the entry into force of the Equal Treatment (Working Hours) Act and social partners agreed that threshold provisions for part-timers were inappropriate given the trend towards more variation in working patterns. They repeated the recommendation of 1993 that bargaining parties should reconsider and change most of the provisions which made a distinction between full- and part-timers. The Committee asks the Government to provide information on the follow up of this recommendation.

6. The Committee notes the information concerning the evaluation of the Equal Treatment Act presented in 1999. In particular it notes that the evaluation recognized that the "restrictive system" based on the provision according to which "the prohibition on discrimination shall not apply to indirect discrimination which is objectively justified" has given rise to problems, but that it did not advocate amending the Act. Moreover, the evaluation found that in some sectors the application of the Act was made difficult by the existence of accepted ideas and behaviour and, in some cases, was even resisted. Moreover, it found that the Act is an unexplored territory for many people to whom its provisions may apply and, in particular, few persons were found to be aware of the ban on discrimination against part-time workers. The difference between direct and indirect discrimination as well as the Commission and its work were also found to be unfamiliar. The Committee hopes that the Government will provide the recommendations included in the evaluation with its next report as well as information on the measures taken or envisaged to implement them. It also asks the Government to indicate the measures taken to promote awareness of measures that need to be taken to promote equal remuneration for work of equal value.