Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the communication of the Netherlands Trade Union Confederation (FNV), dated 20 August 2013.

Article 1 of the Convention. Discrimination based on social origin. The Committee notes that the Government reiterates that social origin is covered by article 1 of the Constitution prohibiting discrimination based “on any grounds whatsoever”. The Government also states that the Equal Treatment Commission – the mandate and functions of which have been incorporated in the Netherlands Institute for Human Rights (CRM) established by Law of 6 December 2011 – is competent to handle all cases of direct and indirect discrimination based on any of the grounds mentioned in article 1 of the Constitution. Recalling that under the Convention, measures must be taken to address at least all the grounds listed in Article 1(1)(a) of the Convention, the Committee asks the Government to undertake a study on direct and indirect discrimination that occurs on the basis of social origin in employment and occupation, including in connection with other grounds, and to provide detailed information on the outcome thereof. Please provide information on the decisions of the CRM and the courts specifically addressing direct and indirect discrimination in employment and occupation on the basis of social origin in the context of article 1 of the Constitution.

Sexual harassment. The Committee recalls that the Labour Conditions Act refers only to sexual harassment in the context of the definition of “psychological burden” and the obligation of the employer to adopt a policy in this regard (section 1(3)(e)) and section 3(2)). It notes that the Government provides information on the programme on “Aggression and violence” carried out from 2009 to 2012 to ensure compliance with the legislation, which contributed to the implementation of a policy on aggression and violence in a great number of sectors, organizations and enterprises. However, the information does not specify whether this also included specific inspection activities to monitor sexual harassment in the workplace. The Committee asks the Government to ensure that monitoring activities adequately address both quid pro quo and hostile environment sexual harassment in the private and public sectors, and to provide the results of inspection activities in this regard. Please continue to provide information on any measures taken or envisaged to raise awareness on sexual harassment among employers and workers, and their organizations.

Article 1(2). Inherent requirements of the job. The Committee notes that section 5(2)(a) to (c) of the Equal Treatment Act allows institutions founded on religious, ideological or political principles, as well as private educational establishments, to impose requirements which, having regard to the purpose of the institution, are necessary for the fulfilment of the duty attached to the post, provided that such requirements do not lead to discrimination on the sole grounds of political opinion, race, sex, nationality, heterosexual or homosexual orientation or civil status. The Committee notes the Government’s statement that “new officers of civil status who are conscientious objectors would not be appointed.” The Committee recalls that FVN had previously expressed concern that lesbian, gay, bisexual and transgender workers in these institutions would continue to be vulnerable to discriminatory treatment under section 5(2)(a). The Committee asks the Government to clarify the reasons for excluding new officers of civil status who are conscientious objectors from being appointed, and to provide information on the practical application of section 5(2)(b) of the Equal Treatment Act in this regard. The Committee also asks the Government to take the necessary measures to ensure that under the Equal Treatment Act, exceptions to the application of the prohibition of discrimination for religion- or philosophy-based institutions under section 5(2)(a) do not lead to direct or indirect discrimination based on religion or sexual orientation, in practice, and to provide information on any cases addressed by the CRM involving section 5(2)(a) to (c).

Equality between men and women. The Committee recalls the differences in the employment rates of men and women and the national context in which the overall majority of male workers continue to work full time while female workers usually work part time (84 per cent of the male workers are employed more than 35 hours a week compared to 29 per cent of women). The Committee notes the reply of the Government that the participation rate of female workers is among the highest in Europe while at the same time a large proportion of this group work only part time. The Government nonetheless considers that the trend is positive and younger generations of female workers tend to work more hours, also after children are born. The Committee notes that the FNV disagrees with the Government’s analysis and considers that the substantial reduction in government subsidies for childcare has greatly increased the costs of formal childcare facilities for many parents. According to the FNV, the Government’s investment in full day-care arrangements for children is lagging behind, the increase in the participation of women in the labour market and the number of working hours of women working part time stagnating and the number of working hours for single parents decreasing. The Committee asks the Government to indicate the measures taken or envisaged to improve the opportunities for both parents, and in particular women, to engage in full-time employment, including by investing in affordable full day-care arrangements. Please continue to provide up-to-date statistics disaggregated by sex and origin on full-time and part-time employment of men and women, including their distribution in the various economic sectors and occupations, including higher level posts, in the public and private sectors.

Enforcement. The Committee notes that 54 per cent of the complaints received by the Equal Treatment Commission in 2011 related to employment and that 16 per cent concerned gender, while race, religion and nationality accounted, respectively, for 13 per cent, 7 per cent and 4 per cent. It further notes that in 2011 Anti-Discrimination Services (ADVs) received a high number of discrimination reports with race being the most commonly reported reason for discrimination (45.7 per cent) in almost all the records of provincial ADVs. The Government further indicates that in the case of a complaint the labour inspection service will investigate if there is a policy to prevent and combat discrimination as required by sections 1(3)(e) and 3(2) of the Labour Conditions Act, and may impose an administrative fine. According to the Government, all municipalities have met the obligations to grant citizens access to ADVs, and the results of the evaluation of the Municipal Anti-discrimination Provisions Act, undertaken in 2012, pointed to the absence of knowledge and expertise in municipalities; the lack of willingness to report discrimination of citizens resulting in under-representation of complaints and numbers on discrimination in general; the high costs for municipalities; and the inefficient coordination of the registration of complaints. The Committee asks the Government to provide information on the measures taken, and results achieved, to address the gaps identified by the evaluation of the ADVs, and any recommendations made by the SER to improve cooperation between ADVs and social partners in addressing discrimination in the workplace. Please continue to provide information on the number and nature of complaints regarding discrimination received by the ADVs, the CRM and the courts, as well as on activities of the labour inspection services to monitor compliance by employers with section 3(2) of the Labour Conditions Act, particularly with regard to measures to prevent and reduce discrimination in the workplace.