Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Netherlands (Ratification: 1973)

Legislative developments

1. Article 1 of the Convention. Protection against discrimination. The Committee notes the adoption of Act No. 119 of 21 February 2004 amending the Equal Treatment Act and other Acts of 2004, in order to implement Directive 2000/43/EC of 29 June 2000 implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin and Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. It notes with interest that the amended legislation provides for additional protection against direct and indirect discrimination as well as harassment and provides protection against victimisation in the case of discrimination complaints. The Committee notes, however, that, in amending the Act, the Government has not taken the opportunity to include explicitly as prohibited grounds of discrimination national extraction, colour and social origin set forth in Article 1(1)(a) of the Convention; section 2(3) of the Act instead refers to "persons belonging to a certain ethnic or cultural minority group" in the context of special measures. The Committee asks the Government: (a) to clarify in its next report whether the term "race" is intended to cover "national extraction and colour"; and (b) to provide information in its next report on how protection is ensured in law and in practice on the ground of social origin.

2. Article 1(1)(b). Additional grounds of discrimination. The Committee notes the adoption of the Act of 17 December 2003 providing for equal treatment irrespective of age in employment, occupation and vocational training (Equal Treatment in Employment (Age Discrimination) Act), and the Equal Treatment on the Grounds of Disability or Chronic Illness Act of 3 April 2003. Noting also the advice issued by the Equal Treatment Commission (ETC) in August 2005 on a draft bill to consolidate the various equal treatment Acts, the Committee asks the Government: (a) to indicate in its next report whether it intends to apply the provisions of the Convention to the grounds of age and disability in accordance with Article 1(1)(b) of the Convention; and (b) to keep it informed of any further developments with regard to the proposed consolidation of the equal treatment legislation.

3. Sexual harassment. The Committee notes that the Working Conditions Act, which was to be evaluated in 2004, provides a broad definition of sexual harassment and obliges the employer to implement a policy to protect against sexual harassment, violence and aggression. It also notes that the Government intends to include a provision on sexual harassment in the Equal Treatment of Men and Women Act. Furthermore, the Committee notes that while, the Labour Inspectorate has the responsibility to monitor compliance with the Working Conditions Act, according to the Netherlands Trade Union Confederation (FNV), sexual harassment is not always included in inspections. The FNV also refers to major research on harassment that is expected to be published by the Government. The Committee asks the Government to keep it informed of the abovementioned legislative developments and the findings of the research on harassment, and to continue to provide information on the practical application of the relevant legislation and on the number of sexual harassment cases recorded by the labour inspectorate, the ETC and the courts, and how the complaints were dealt with.

National policy with respect to equality of opportunity and treatment between men and women of ethnic minorities

4. Article 2. Equality of opportunity and treatment with respect to part-time employment. With reference to its previous comments regarding the distinctions made in collective agreements between part-time workers and full-time workers and the disproportionate representation of women in part-time work, the Committee notes that the Government continues to draw the attention of the social partners to the provisions of the Equal Treatment (Working Hours) Act and the possibility to seek the advice of ETC on this matter. While noting from the Government’s report on Convention No. 100 that the ETC has found it significant that most of the employers, government authorities and collective agreements negotiators seeking an opinion from the ETC have followed its advice to comply with the Act, the Committee also notes from the latest survey of the Labour Inspectorate on the Labour Market Situation in 2002 that distinctions, some of which are not permitted under the Equal Treatment (Working Hours) Act, continue to exist. The Committee asks the Government to continue to provide information on efforts made to eliminate distinctions in collective agreements and to indicate in its next report any other measures it is taking to address the underlying causes of the disproportionate representation of women in part-time work. Please also refer to the Committee’s comments on Convention No. 100.

5. Access to employment and occupation, including higher level posts. Further to its observation, the Committee notes the statistical information for the year 2003 provided in the Government’s report indicating that while, compared to 1997, the employment rate for women and ethnic minorities has significantly improved, their employment rate remains lower than the average employment rate by 10 and 17 percentage points respectively. The employment rate of ethnic minority women is 26 percentage points lower than the average, while for older women and older ethnic minorities it is 30 and 31 percentage points respectively. The employment rate of young ethnic minority members (15-24 years of age) is even 36 percentage points lower than the average. At the same time, the Committee notes that the greatest increase in the participation of women workers has been in the sectors with the lowest share of women workers, notably construction, public and road transport, and oil and chemistry. In its previous comments, the Committee had noted the various government initiatives to promote equality of ethnic minorities and to increase the number of women in decision-making posts and in new technologies, and had requested information on the implementation and impact of these initiatives. The Committee notes in this regard the information provided by the FNV that "Toplink" has closed down and that the governmental subsidy to Opportunity in Business has been discontinued. The FNV also indicates that hardly any results-oriented reports about the fight against discrimination can be delivered, and that yet another committee for participation among women and ethnic minorities has taken duty. Noting the absence of any further information in the Government’s report on these initiatives, the Committee encourages the Government to undertake a results-oriented analysis of the various measures it has taken since the Committee’s last comments in 2001 to promote equality of opportunity and treatment of women and ethnic minorities, including the 2003 Action Plan on Emancipation and Integration of Women and Girls from Ethnic Minorities and the Integration Task Force. It hopes that the next Government’s report will contain full information in this regard.

6. Article 3(e). Observance of the national policy by placement services. The Committee notes that, following the entry into force in 2002 of the Act on Implementation Structure for Work and Income (SUWI), responsibilities for the reintegration of the unemployed into the labour market has been transferred to the municipalities and the Implementation Unit for Workers Insurances (UWV). The Committee notes with interest that section 22 of the SUWI provides that the Centre for Work and Income (CWI), in fulfilling its duties, ensures that discrimination does not take place in the placement of unemployed persons, and to this end has established a non-discrimination code. The Committee notes in this regard implementing Regulation of 22 February 2005 establishing the Non-discrimination Code CWI of 2005 (replacing the 2002 Code) which protects against direct and indirect discrimination by the CWI staff and its clients in the registration of and the vacancies for the unemployed on the basis of religion, belief, nationality, race, sex, sexual orientation, age or disability. Complaints regarding discrimination notified by the CWI staff, by the employer or jobseeker, can be submitted to the CWI or the ETC. The Committee asks the Government to provide information on the application in practice and the impact of the SUWI and the Non-Discrimination Code of 2005 and also refers to its comments in points 1 and 2 of this direct request with respect to the prohibited grounds of discrimination covered by the legislation concerned.

Enforcement

7. Equal Treatment Commission. The Committee notes the information provided by the Government and the FNV on the number and nature of complaints relating to discrimination handled by the ETC and the courts. The Committee further notes that the recent report of the ETC "Making the Difference: Evaluation of the Equal Treatment Act and the Activities of the ETC. 1999-2004" confirms the limitations on the capacity of the ETC to exercise its powers proactively. It notes that the report contains recommendations to the ETC and the Government to improve the application and enforcement of the Act, such as measures to increase the awareness of the Act and the existing complaints procedures; to investigate the situations in which victimization is most prevalent; to examine why many of the ETC opinions relating to sex discrimination are not being followed; to play a more directing role in order to ensure continuity and strengthen the existing infrastructure to combat discrimination. The Committee asks the Government to continue to provide information on the complaints brought before the ETC and the courts and to provide information on the follow-up to the recommendations set out in the ETC report.