Social Security (Minimum Standards) Convention, 1952 (No. 102) - Netherlands (Ratification: 1962)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 102 (minimum standards), 121 (employment injury benefits), 128 (invalidity, old-age and survivors’ benefits), and 130 (medical care and sickness benefits) together.

The Committee notes the observations of the National Federation of Christian Trade Unions (CNV), the Netherlands Trade Union Confederation (FNV), and the Trade Union Federation for Professionals (VCP), received on 31 August 2021 and 31 August 2022.

Article 69 of Convention No. 102, Article 32 of Convention No. 128, and Article 28 of Convention No. 130. Suspension of benefits. The Committee takes due note of the information provided by the Government concerning the suspension of cash benefits in case the beneficiary is incarcerated in prison or in a judicial facility.

Article 69(f) of Convention No. 102. Unemployment benefit. Sanctions for misconduct. The Committee takes due note of the information provided by the Government indicating the 2018 guidelines of the Highest Administrative Court, according to which suspension of unemployment benefits may be applied only when the unemployment occurred due to wilful misconduct.

Article 72(2) of Convention No. 102. Collective financing of social security schemes. The Committee takes due note of the statistical data provided by the Government concerning financing of the social security schemes.

Article 14 of Convention No. 121. Assessment of incapacity for work. The Committee notes the observations of the FNV, the VCP, and the CNV indicating that the rules for the assessment of incapacity for work are obsolete and that, as a result of the current assessment procedure, persons with substantial or even severe limitations may be considered as persons with less than 35 per cent incapacity for work under the Work and Income (Employment Capacity) Act of 2006 (WIA). The Committee requests the Government to provide information on the procedure and criteria for the assessment of incapacity for work applied for the purpose of entitlement to benefits under the WIA.

Article 15 of Convention No. 128. (i) Increase in pensionable age. With respect to its previous comments concerning the increase in pensionable age beyond 65 years, the Committee notes the indication by the Government that the pensionable age under the national old-age pension scheme (AOW) is scheduled to increase up to 67 years in 2024 and will be linked to life expectancy thereafter. The Committee further notes from the information provided by the Government in its 2019 report on the application of the European Code of Social Security, and its Protocol, that the share of persons over 55 years in the labour market has substantially increased in the past two decades. Furthermore, the percentage of persons over 65 years will have increased from 15 to 26 per cent by 2040. The Committee also observes from the website of the Statistics Netherlands (CBS) that in 2040, the remaining life expectancy of 60-year-olds will have increased by around three years in comparison with 2016. In addition, the number of years without moderate or severe physical limitations will have increased from 16.3 to 20.6 years for women over 60 years and from 17.4 to 21.7 years for men over 60 years by 2040. The Committee takes due note of this information.

(ii) Early retirement for workers in arduous and unhealthy occupations. The Committee notes from the Government’s report on the application of the European Code of Social Security and its Protocol, that the national old-age pension scheme (AOW) does not provide for early retirement provisions. However, workers can receive payments before they are entitled to a national old-age pension under the contractual early retirement scheme “Regeling vervroegde uitreding” (RVU scheme). The Committee observes that contractual early retirement arrangements can be concluded at individual, company, or sectoral level. According to recent figures, 33 per cent of the workers covered by a collective labour agreement had access to a contractual RVU scheme as of December 2021 and that, for another 10 per cent of these workers, the possibility of a RVU scheme is being discussed. The Committee further observes that the RVU scheme provides for the payment of a levy of 52 per cent with a temporal exemption till 2025 for workers who are 36 months or less before the statutory pensionable age and provided that the gross payment does not exceed the amount of the AOW pension (the Lump Sum Payment, Early Retirement Scheme and Leave Savings Scheme Act of 2021).

The Committee notes the observations of the FNV and the CNV pointing out that the increase in pensionable age beyond 65 years is an unjust measure particularly for workers engaged in arduous and unhealthy occupations whose life expectancy is usually lower. The FNV considers that there is a need for a publicly funded permanent scheme to ensure early retirement for persons in hazardous work.

The Committee recalls that, as per Article 15(3) of the Convention, if the pensionable age is 65 years or higher, the age shall be lowered, under prescribed conditions, in respect of persons who have been engaged in occupations that are deemed by national legislation, for the purpose of old-age benefit, to be arduous or unhealthy. Taking into account the absence of early retirement provisions under the national old-age pension scheme (AOW) and the low coverage of the contractual RVU scheme, the Committee requests the Government to take measures to ensure that workers in arduous and unhealthy occupations are entitled to a full pension, meeting the requirements of Article 26 on level of benefits, at an age earlier than 65, in line with Article 15(3) of the Convention. For this purpose, the Committee strongly recommends to the Government that it considers the introduction of a permanent statutory early retirement scheme particularly for workers in arduous and unhealthy occupations. It also requests the Government to continue to provide information on the scope and the extent of the contractual RVU scheme, including the statistical data on its coverage.

Article 29 of Convention No. 128. Adjustment of benefits to the cost of living. The Committee takes due note of the information provided by the Government regarding the indexation of old-age and invalidity benefits.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the consolidated report (CR) on the application of the ILO social security Conventions ratified by the Netherlands (Conventions Nos 12, 102, 121, 128 and 130) and of the European Code of Social Security (ECSS), for the period 2006–16. It notes the Government’s statement in the letter transmitting the 50th annual report on the ECSS that the CR will be completed and updated before January 2018. The Committee hopes that the updated CR will contain full explanations and references to concrete provisions of national laws and regulations showing how effect is given in particular to the provisions of the Conventions mentioned below, on which the CR contains no or insufficient information.

The Committee notes the observations communicated in September 2012 by the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV), and the Trade Union Confederation of Middle and Higher Level Employees’ Unions (MHP) on the application of Convention No. 121, which highlight provisions of the Work and Income (Employment Capacity) Act of 2006 (WIA) and their incompatibility with the requirements of the Convention, as well as the deficiencies of their implementation in practice, as well as the observations communicated in August 2016 by the FNV and the CNV concerning the application of Conventions Nos 102, 128 and 130. The issues raised by the trade union organizations concerning the alleged negative impact on certain categories of protected persons of the changes in the legislation on old-age pensions, sickness benefit and health insurance, including enforcement and fraud, will be considered by the Committee on the basis of the updated text of the CR, which should include appropriate explanations with concrete references to the new legislative provisions in these social security branches.

Adjustment of benefits to the cost of living (Part XI of the CR). Article 29 of Convention No. 128. The Committee requests the Government to supply the statistical data on the adjustment of the old-age, invalidity and survivors’ benefits over the period of 2011–16, in accordance with the report form on the Convention adopted by the ILO Governing Body.

Part XIII of the CR (Suspension of benefits); Article 69 of Convention No. 102; Article 22 of Convention No. 121; Article 32 of Convention No. 128; and Article 28 of Convention No. 130. The Committee requests the Government to explain in detail the grounds for the suspension or reduction of benefits applied in national law and practice with regard to social security schemes giving effect to Parts II (Medical care), V (Old-age benefit), VI (Employment injury benefit), IX (Invalidity benefit) and X (Survivors’ benefit) of the CR.

Collective financing of social security schemes (Part XIII of the CR). Article 72(2) of Convention No. 102. The Committee requests the Government to demonstrate that the total of the insurance contributions borne by the employees protected do not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their wives and children, as requested in the report form on the Convention.

Part IV of the CR (Unemployment benefit). Sanctions for misconduct. Article 69(f) of Convention No. 102. According to section 24(2) of the Unemployment Insurance Act, an employee is considered to be culpably unemployed when the unemployment occurred due to compelling reasons as mentioned in section 678 of Book 7 of the Civil Code and the employee is culpable for becoming unemployed. Among such compelling reasons, section 678(k) and (l) mentions cases when the employee “neglects his duties in a flagrant way” or “is not able to perform his duties due to his own recklessness”. Taking into account that neglect and recklessness on the part of the employee leading to dismissal may not necessarily constitute “wilful misconduct”, which alone may be sanctioned under Article 69(f) of the Convention, the Government in a special letter has drawn the attention of the Institute for Employee Benefit Schemes (UWV) to the international obligation of the Netherlands to apply sanctions only in cases where neglect or recklessness amounted to wilful misconduct directly causing unemployment of the person concerned. In its 2011 Resolution on the application of the European Code of Social Security, the Committee of Ministers of the Council of Europe asked the Government to monitor the effect of this letter and to compile statistics on the number of such cases. According to the statistics supplied in the 50th annual report on the Code, in 2016 misconduct was found in 96,160 cases. In 53,630 cases the benefit was temporary suspended for 66 days on average, and in 5,942 cases payment was permanently discontinued. The Committee notes from these numbers that sanctions for misconduct are being used by the UWV on a large scale without any legal safeguards or assurances from the Government that they are being applied only to cases of wilful misconduct. Taking into account that neither Convention No. 102 nor the ECSS permit to leave the decision making on the application of sanctions to the entire discretion of the social security administration, the Committee once again requests the Government to highlight those provisions in the guidelines to the deciding officers issued by the UWV that would formally require them, before deciding on the suspension of benefit, to ascertain that the misconduct was wilful and has directly caused the contingency in question.

Part V of the CR (Pensionable age), Article 15 of Convention No. 128. The Committee notes that in 2017 the pensionable age was raised to 65 years and nine months and will gradually reach 67 years in 2021. As from 2022, it will be linked to life expectancy. With regard to the international regulations on pensionable age, the Committee recalls that Article 26(2) of the ECSS allows the pension age of 65 years to be exceeded if the number of residents having attained the increased age is not less than 10 per cent of the number of residents under that age but over 15 years of age. Convention No. 102 in that case permits the pension age to be increased only with due regard to the working ability of elderly persons in the country. Article 15 of Convention No. 128 is more explicit in this respect obliging the competent authority fixing the higher age to take into account the demographic, economic and social criteria, which shall be demonstrated statistically, and to establish a lower pension age in respect of persons who have been engaged in occupations that are deemed by national legislation, for the purpose of old-age benefit, to be arduous or unhealthy. Taking into account that the capacity for work of manual employees, who constitute the main category of the persons protected by the ECSS, is likely to decrease substantially after the age of 65, the Protocol to the ECSS established a higher standard of protection by expressly prohibiting the increase of the pension age above 65 years where the pension scheme protects employees only. In the light of these provisions, the Committee requests the Government to justify the increase of the pensionable age beyond 65 years by reference to the demographic, economic and social criteria, which demonstrate statistically the working ability and the employability of elderly persons in the Netherlands. The Committee points out that, within the legal framework of Convention No. 128, the working ability of the elderly persons in the country concerned should be determined with respect to those persons who would have duly acquired the right to the old-age pension at 65 years, but have now to wait for its realization until such higher pension age as is currently fixed by the national law. The indicators generally used to compare the health status of populations through time and in the assessment of healthy ageing and fitness for work include the healthy life expectancy (HLE) which pertains to life spent in good health, and disability-free life expectancy (DFLE) which corresponds to life free from a limiting chronic illness or disability. The HLE and the DFLE of elderly persons as the measure of their capacity for work beyond 65 should be calculated in particular with respect to the categories of unskilled workers engaged in manual operations and physical labour, including in onerous and hazardous occupations entailing premature physical ageing. These categories could be obtained by using the Standard Occupational Classification (SOC) 2010 Sub-Major Group 91 – Elementary Trades and Related Occupations. From the labour market point of view, increasing the age of retirement would be justified only if such categories of elderly workers conserve not only their physical ability but also a fair chance to stay in the labour market and maintain their employability. Therefore, the Committee requests the Government to include statistics on the participation and unemployment rate for people aged 65–67 years and belonging to the SOC Sub-Major Group 91. The Committee also requests the Government to indicate how effect is given to Article 15(3) of Convention No. 128, which requires lowering the pensionable age for persons who have been engaged in occupations deemed to be arduous or unhealthy.

Part VI of the CR (Conditions of entitlement to the employment injury benefit), Articles 9 and 14 of Convention No. 121. In its observation of 2011, the Committee has drawn the Government’s attention to the incompatibility of certain provisions of the WIA with the requirements of the Convention. In their observations of 2012, the three national trade unions – the FNV, the CNV and the MHP – encouraged the Government “to find, in dialogue with the trade unions, a solution to the problems of the victims of employment injuries arising from the non-compliance by the Netherlands with Convention No. 121”. The Committee notes from the Government’s report of 2016 that there were no new policy developments with respect to the WIA since 2012 and that the Government has not pursued the dialogue with the trade unions on this subject. As the situation in law and policy has not changed, the Committee notes with regret that the cash benefits provided under the WIA for victims of employment injuries do not ensure the level of protection guaranteed by the Convention. Recalling the Government’s general responsibility under Article 25 of Convention No. 121 for the due provision of the benefits provided in compliance with this Convention and requests it to indicate measures taken or contemplated, in consultation with the organizations representing the persons protected, to bring the overall protection offered by the cash benefits granted under the WIA to the level guaranteed by the Convention.

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

The Committee notes the Government’s report and replies to its previous comments, as well as the observations made by Netherlands Trade Union Confederation (FNV) dated 30 August and 16 September 2013. As these observations relate to the sickness benefit, the Committee considers them under the Medical Care and Sickness Benefits Convention, 1969 (No. 130), also ratified by the Netherlands.

Part VIII of the report form. Maternity benefit. Articles 49 and 52 of the Convention. According to the Government’s 44th report on the European Code of Social Security, maternity care is provided for mother and baby for up to ten days after childbirth. There is no cost sharing for maternity care on medical indication. According to the Government’s reply to the Committee’s previous observation in this respect, all medical care related to childbirth is covered in the basic coverage. The Committee would like the Government to substantiate these contradictory statements by reference in both cases to concrete provisions of the national legislation. The Committee wishes to recall in this respect that the contingencies covered by Part VIII include pregnancy and confinement and their consequences, and that medical care in case of consequences shall be provided free of charge until restoring the health of the woman concerned.

Part XI. Standards to be complied with by periodical payments. Articles 65 and 66. The Committee notes that the Governmental Committee of the European Social Charter and the European Code of Social Security of the Council of Europe (127th Session, May 2013) has requested the ILO to undertake a comparative study on the methodology for determining the reference wage of the standard beneficiary used by the ratifying countries for the calculation of the replacement rate of benefits. The Committee hopes that this study will be carried out early in 2014 and will permit the Committee to better assess the application of Part XI of the report form and the Code in the changed economic and labour market conditions in the European countries. The Committee will consider the information supplied by the Dutch Government concerning the methodology for determining the reference wage of the skilled and unskilled worker in the light of this study.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Part XI (Standards to be complied with by periodical payments), Articles 65 and 66 of the Convention. With reference to the questions raised in its direct request of 2007, the Committee notes, from the Government’s 45th annual report on the European Code of Social Security, the explanation of the methodology of determining the reference wage of the skilled and unskilled worker used for assessing the replacement rate of the Dutch benefits. According to the report, the Ministry of Social Affairs and Employment uses as a proxy for the wage of the skilled worker the so-called “modal wage” (modal inkomen), which is calculated by the Central Planning Bureau. The modal wage is not the same as the average wage: the modal wage is the average of the statistical intervals which contain the largest number of cases. The Committee would be grateful if in its next report the Government would specify, with the help of the Central Planning Bureau and the technical advise from the ILO, if necessary, to what extent “the average of the statistical intervals which contain the largest number of cases” corresponds to 125 per cent of the average earnings of all employees in the country or to the other two options for determining the reference wage of the skilled worker mentioned in paragraph 6 of Article 65 of the Convention.

The report further indicates that the Ministry of Social Affairs and Employment uses as a proxy for the wage of the unskilled worker the legal minimum wage, which is determined by the same Ministry. The determination is not so much labour market related, but is predominantly determined by political factors, because the legal minimum wage is linked to the so-called “social minimum” in the Dutch social system. In most collective labour agreements the real sectoral minimum wages are considerably higher and lie around 120–130 per cent of the legal minimum wage. Because of this, the use of the legal minimum wage as proxy underestimates the wages of the unskilled workers. The Committee notes this explanation with concern, as underestimating the wages of the unskilled workers, which are taken by the Convention as a reference for assessing the replacement level of the Dutch social benefits, by as much as 30 per cent, might have led and continue to lead the supervisory bodies to false conclusions on whether the Dutch social benefits actually attain the minimum level fixed by the Convention.

The Committee further notes that one of the reasons why the Government continues to use the legal minimum wage as proxy for the reference wage under the Convention consists in that it is technically difficult and very time consuming and expensive to calculate an average minimum wage based on all the different wages used in more than 100 collective labour agreements. The Committee wishes to point out that the Convention does not require the Government to undertake such a cumbersome exercise: its requirements are much more simple and straightforward and, unlike the above approach, are based on the actual labour market data and not influenced by political factors. According to Article 66 of the Convention, the Government has an option to determine the standard wage of the typical unskilled worker by reference to collective agreements in only one sector of economic activity expressly specified in paragraph 4 of this Article – manufacture of machinery other than electrical machinery or such other industry which employs the largest number of male employees. In order to further simplify the task of the Government in this respect, the Committee considers that it could be enough for the Government at the present stage to supply with its next report, copies of the wage-related provisions of the collective agreements in the said sectors of economic activity together with any available statistical information on the wages paid in these sectors.

[The Government is asked to reply in detail to the present comments in 2013.]

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Part VIII of the Convention (Maternity benefit). The Committee notes that the Government’s report received in August 2011 did not contain replies to specific questions raised in the previous direct request of 2007 concerning provision of maternity medical care to certain categories of protected women and the rules of cost sharing of such care. The Committee notes however that the 45th report of the Netherlands of 2012 on the European Code of Social Security states that maternity care is subjected to out-of-pocket payments per hour or per day, the amount of which depends on the place where the child is born. In the event the child is born in hospital, a higher out-of-pocket payment is applicable if there is no special medical indication. The contribution consists of two parts: a starting tariff of €16 per day and the difference between the day tariff the hospital charges and €112.50, which is charged to compensate for the costs of the maternity ward in the hospital. Only when the mother must be hospitalized due to a medical indication no out-of-pocket payment is applicable. In the case of child birth without medical indication, such as child birth at home or in an outpatient clinic, the mother must pay a contribution on behalf of herself and her child, which amounts to €4 per hour and is indexed yearly.

The Committee wishes to point out in this respect that Articles 10(2) and 49 of the Convention prohibit sharing by the mother of the cost of the medical care provided in the case of pregnancy and child birth and their consequences. The types of such care specified in Articles 10(1)(b) and 49(2) shall be defined in the national legislation and provided to women protected under Part VIII of the Convention free of charge irrespective of the place where child birth takes place – in or outside hospital. The gratuity of this care cannot be subjected to the delivery of an additional special medical indication. In light of these explanations, the Committee would like the Government to assess to what extent these requirements of the Convention are reflected in the current Dutch law and practice, specifying in particular whether all types of medical care mentioned in Article 49(2) and (3), including prenatal care, are covered by maternity care included in the standard health insurance package, what types of care are provided free of charge and what types require for this purpose a special medical indication, and in what form the latter should be delivered. Please calculate the maximum amount of out-of-pocket money the mother will normally be required to contribute when child birth takes place in hospital without a special medical indication, as well as outside hospital, at home or in an outpatient clinic.

According to the Government’s 44th report on the European Code of Social Security, maternity care is provided for mother and baby for up to ten days after childbirth; there is no cost sharing for maternity care with medical indication. Please indicate whether, in the case of complications resulting from child birth, for example, maternity care with medical indication continues to be provided after the ten-day period without any cost sharing, in accordance with Article 52 of the Convention.

[The Government is asked to reply in detail to the present comments in 2013.]

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

With reference to its comments of 2002, the Committee notes the information supplied by the Government in its report for the period 2001–06, as well as in the annual reports on the application of the European Code of Social Security (ECSS). It also notes the comments made by the Trade Union Confederation of Middle and Senior Staff Unions in October 2006 on the Government’s reports concerning Conventions Nos 102 and 121.

Part II (Medical care) of the Convention. The Committee notes that the Netherlands health insurance system has undergone a radical reform which entered into force on 1 January 2006. The existing Health-Care Insurance Act has been repealed with the entry into force of the Health Insurance Act, which has instituted a new form of social health insurance for curative care for the entire population. The Committee would like the Government to specify to what extent the reform has affected the provision of medical care of a preventive nature and how such care is being guaranteed in the Netherlands in accordance with Article 7 of the Convention.

According to the 39th report on the ECSS, the Exceptional Medical Expenses Act (Algemene Wet Bijzondere Ziektekosten), which is also a form of social insurance for the entire population covering long-term nursing care, will remain in force alongside the Health Insurance Act. However, everybody who is insured for the Exceptional Medical Expenses Act is obliged to take out health-care insurance under the new Health Insurance Act. The Committee would like the Government to specify how, under the new provisions, the insurance coverage for short-term and long-term care ensures that the benefit is provided throughout the contingency, in accordance with Article 12 of the Convention, particularly in the case of diseases recognized as entailing prolonged care.

The 39th report stated that private health insurance companies who carry out the Health Insurance Act, are obliged to accept anybody who falls under this Act and applies for health insurance. The insurance package is specified by law, depending on the type of care to be provided under the package. The Committee would like the Government to specify, by reference to concrete sections of the law, to what extent the statutory insurance package covers the minimum package of benefits prescribed by Article 10(1) of the Convention, and to further specify whether the insurance contracts offered by private companies cover all the contingencies defined in Article 8 of the Convention, whether separate coverage is required for pregnancy and confinement, and whether any distinction is made on the basis of the cause of the morbid condition (e.g. alcohol or drug abuse, self-inflicted injury, environmental poisoning, terrorist attack, etc.).

According to the 39th report, the health-care insurers can themselves specify which person or institution shall provide the health care in question, as long as it is a person or institution which is legally entitled to provide such care. The health‑care insurers may provide the insured persons with benefits in kind (benefits-in-kind policy) or to reimburse them for the health-care costs they have incurred (reimbursement policy). In the latter case the health-care insurers are also obliged to inform the insured persons as to where they can receive the care in question. Health-care insurers may also provide certain forms of health care in kind and reimburse the insured persons for other forms of health care. Insured persons are free to choose which kind of policy they want. The Committee would like the Government to specify to what extent a protected person retains the right to free choice of a general practitioner, a specialist and a medical institution providing care, including the right of a woman to choose a gynaecologist and a hospital for confinement, and is encouraged to use the general public health services, in line with Article 10(4) of the Convention.

All insured persons aged 18 and older who have taken out health insurance pay their insurer a nominal premium. Persons aged up to 18 years are not obliged to pay a nominal contribution. The premium is unrelated to the person’s income. Care insurers may set their own premiums. Premium levels may differ for different variants of the insurance agreements they offer, but they must be the same for everybody who chooses the same variant. Health-care insurers must in all cases offer at least a care insurance policy with zero excess. They may also provide policies with statutorily determined portions with excess. A maximum of five portions may be covered at a value of 100 euros (€) each. The citizen may choose between all variants of care insurance offered by a health-care insurer and may switch his variant or health-care insurer on an annual basis. Together with the Health Insurance Act, the Health-Care Allowance Act (Wet op de zorgtoeslag) has entered into force. Pursuant to this Act, persons for whom the nominal contribution is too high in relation to their income may receive an allowance paid by the tax authorities. In judging whether a person comes into consideration for an allowance, the income of a possible partner is also taken into account. The Committee would like the Government to explain the difference in the quantity and quality of care offered with each of the five statutorily determined portions in excess of the basic care insurance policy with zero excess. Please indicate how hardship is avoided in practice to persons of small means (Article 71(1) of the Convention), using as a reference class the standard beneficiary selected in the report for the sickness benefit branch.

Besides receipts of nominal premiums, the Health Insurance Act is financed by levying an income-related contribution payable by persons under legal obligation to take out insurance. Employers deduct the income-related contribution from the part of an employee’s salary that is subject to payroll tax. The body that administers social security payments does the same for people who receive state benefits. The contributions are remitted to the Inland Revenue Service. People who are under an obligation to take out insurance but do not have income subject to payroll tax receive an assessment from the Inland Revenue Service for their income-related contributions. The income-related contribution is paid into the health-care insurance fund, together with the nominal contribution paid by the Government for persons under 18 years of age. The health-care insurer is paid an amount from this fund which is related to the insured person’s degree of risk. The Committee understands that the Health Insurance Act has established a mixed system of financing medical care – through individual nominal premiums which determine the differentiated scope of the private insurance coverage, and through a collective solidarity scheme based on income-related insurance contributions and government nominal contributions for persons under 18 years of age paid into the health-care insurance fund. To the extent that the system of nominal premiums fixed according to the insured person’s degree of risk departs from the system of collective financing, the Committee would like the Government to specify how such a mixed system is expected to contribute to social cohesion, solidarity, collective risk sharing and free access to the full range of quality medical services for all. Please explain how provisions of each Article of Part XIII of the Convention are being complied with.

Part IV (Unemployment benefit) in conjunction with Article 69(f) of the Convention. In its previous conclusions, the Committee observed that, under Article 69(f) of the Convention, sanctions in respect of claimants of unemployment benefit who are deemed to be “culpably unemployed” under Dutch law may apply only in cases where unemployment has been caused by the wilful misconduct of the person concerned, whereas passive behaviour by which this person omits or neglects to protest against dismissal may not necessarily be wilful. In reply, the Government indicates that, from 1 October 2006, unemployment benefit will no longer be refused due to the fact that the employee accepts or does not oppose his or her dismissal. The Committee welcomes this change in the regime of sanctions applied to claimants of unemployment benefit, which will permit better application of the corresponding provisions of the Convention. The Government further refers to the new definition of “culpable unemployment” in article 24(2) of the Unemployment Insurance Act, which, in its opinion, fulfils the obligations of the Convention: an employee is considered to be culpably unemployed when the unemployment occurred due to compelling reasons in the sense of the provisions of article 678 of Book 7 of the Civil Code and the employee is culpable for his or her unemployment. The Committee notes that, among the compelling reasons for the termination of employment, article 678(k) and (l) mentions cases when the employee “neglects his duties in a flagrant way” or “is not able to perform his duties due to his own recklessness”. Taking into account that neither the concept of neglect nor the concept of recklessness include explicitly “wilful misconduct” which may be sanctioned under Article 69(f) of the Convention, the Committee would like the Government to explain how these provisions are being applied in practice.

Part VIII (Maternity benefit). The Committee notes that the report does not reply to the question raised in its previous direct request in relation to the observation of 2003 on Convention No. 103, which related to the exclusion of certain categories of women workers who are covered by the Convention from the compulsory insurance scheme, and therefore from medical maternity benefits, due to the level of their remuneration or occupational activity. The Committee recalls that in June 2004, the Conference Committee on the Application of Standards expressed the hope that the Government would adopt the necessary measures to bring the legislation into conformity with Convention No. 103 and that it would provide statistics on the number of women workers who were covered and who were excluded from the compulsory insurance scheme. The Committee notes the entry into force on 1 January 2006 of the Health Insurance Act, which instituted a new form of social health insurance for the entire population. The statistics given in the Government’s latest report on Convention No. 102 under Part VIII (Maternity benefit) show that coverage is ensured to all workers employed in the country, including all women workers. As Article 48(a) of the Convention requires coverage for maternity medical benefit also of the dependent wives of male workers, the Committee would like the Government to explain whether such wives have to be insured by their husbands or are entitled to health insurance in their own right, whether the standard health insurance package of an employee includes maternity care or it has to be added and paid for separately by women only, and who pays the premiums for dependent wives who have no individual income. It would also like to receive a detailed reply to the questions raised by the Conference Committee on the Application of Standards in 2004 concerning coverage of the previously excluded categories of women workers.

The Committee notes from the publication of the Ministry of Health, Welfare and Sport: Health Insurance in the Netherlands: The new health insurance system from 2006 supplied with the Government’s report, that the new system is built on private law and health care is offered by private companies with a view to making a profit. In the private insurance market, as points out the Trade Union Confederation of Middle and Senior Staff Unions, “problems of uninsured persons are liable to arise as the result of payment problems. Several insurers have already excluded people from the complementary insurance scheme; it would seem to be merely a matter of time before the first expulsions from the basic insurance scheme are effected”. The Committee would like the Government to indicate in its next report whether such cases of expulsion from the basic insurance scheme have indeed occurred and have been brought before the Health Insurance Disputes Board or the Ombudsman.

The abovementioned publication states that insurance companies are not allowed to differentiate the premium according to personal characteristics like age, gender or medical situation. In return, insurers receive compensation from the Health Insurance Fund for accepting any applicant for health insurance, including less healthy and therefore higher risk clients, which minimizes the cost differences for insurers resulting from the health profiles of insured persons. The Committee would like to know whether this risk equalization system is used to offset higher insurance risks related to maternity care.

The Committee notes from the Government’s report that insured persons do not have to share in the costs of medical care during confinement in a hospital or special maternity centre, when this care is provided on medical advice. It would like the Government to specify whether all types of medical care mentioned in article 49(2) and (3) are covered by maternity care included in the standard health insurance package. It recalls that medical care covered by the Convention includes hospitalization only where necessary and should otherwise be provided outside hospitals or special maternity centres not only during confinement but also during prenatal and postnatal periods. The Committee therefore asks the Government to specify to what extent protected women are required to share in the cost of prenatal and postnatal care provided outside hospitals.

Part XI (Standards to be complied with by periodical payments) (a). The Committee recalls that while, according to Dutch law, sick pay, maternity benefit, unemployment benefit and invalidity benefit should amount to 70 per cent of the gross salary, the Government’s report calculates the level of the benefit as 70 per cent of the net reference wage. The replacement rate is determined by comparing the net amount of the benefit with the net amount of the reference wage and the net amount of the child benefit due to the standard beneficiary. The Committee would like the Government to explain how the net amounts of benefits are calculated out of the gross salary and to provide examples of the real calculations by the responsible agencies of these benefits paid out to an insured person whose gross salary corresponds to the gross wage of the skilled manual male employee. Please also indicate the rate of the general taxation and social security contributions applied to income received from employment as well as to income received from social benefits, including child benefit.

(b). Article 44. The Committee notes that the calculation of the total value of family benefits was made in relation to the net amount of the minimum legal wage (€1,176.47 per month), which, by definition, would be lower than the gross wage of an ordinary adult male labourer which should be used for this calculation. It would therefore like the Government to be asked to include in its next report updated calculations of the total value of family benefits in relation to the gross wage of an ordinary labourer as determined in accordance with the rules laid down in article 66.

(c). The Committee notes that calculations made in the 40th report (2007) on the ECSS include, in addition to the basic amount of the child benefit for two children born after 1 January 1995 (€118.60 net per month), also child tax credit (84.50) without indicating whether it is for one or two children. In comparison, the 38th report (2005) included, instead of the child tax credit, the general tax credit for the partner (152.08). The total amount of the family allowances taken into account in the 38th report was €269.83 net per month, which is much higher than the amount of €201.95 used in the 40th report for the calculation of the sickness, unemployment and maternity benefits or the amount of €203.10 (= 118.60 + 84.50) used for the calculation of the employment injury, invalidity and survivors’ benefits. The Committee further notes that statistics on family benefit given in the Government’s reports on Conventions Nos 102 and 128 differ from those given in the reports on the ECSS for the same time base. Thus, the report on Convention No. 102 for the period 2001–06 includes in the calculation of the sickness benefit for 2005 the family allowance of €117.75 net per month provided for two children between the ages of 0–6 born after 31 December 2004, while the report on Convention No. 128 for 2007 include in the calculation of both invalidity and survivors’ benefit the family allowance of €201.95 net per month as the “basic amount applicable to families with two children born on or after 1 January 1995 and between 0–5 years of age”. The Committee would be grateful if the Government would explain these differences, as well as the nature of the child tax credit, indicating in particular whether it is income tested.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

With reference to its observation of 2002, the Committee notes the information supplied by the Government in its report for the period 2001–06, as well as in the annual reports on the application of the European Code of Social Security. It also notes the comments made by the Trade Union Confederation of Middle and Senior Staff Unions in October 2006 on the Government’s reports concerning Conventions Nos 102 and 121.

Part III (Sickness benefit) in relation to Articles 71 and 72 of the Convention (Private insurance in sickness and disability schemes). For a number of years, the Committee has been questioning the Government about the possible negative effects of the reforms making employers liable under certain conditions for the payment of sickness and disability benefits, which could result, in particular, from the abandonment of the participatory management of the social security schemes and from the risk of discrimination of workers with a history of medical problems. The Committee would like the Government to continue to monitor these issues in consultation with the social partners and to inform the Committee of any additional measures taken to promote a strong role for workers’ organizations and the participation of the representatives of the persons protected at the various levels of management in the delivery chain of benefits, as well as to prevent and remedy possible cases of discrimination. In this respect the Committee notes that the Trade Union Confederation of Middle and Senior Staff Unions raises a number of important questions concerning: (1) guarantees of benefit payment in the event that an insurance company with which an employer bearing its own risk has taken out insurance cannot meet its financial obligations; (2) the role of the social partners after the passage of the Work and Income (Implementation Structure) Act (SUWI); and (3) the inspection activities to monitor compliance of employers with their obligation to continue to pay wages in the event of illness, pointing out that such wages may not be paid if workers are unaware that they are entitled to them. The Committee would like the Government to reply in detail to these comments in its next report.

Part IV (Unemployment benefit) in conjunction with Article 69(f). In its previous conclusions, the Committee observed that, under Article 69(f) of the Convention, sanctions in respect of claimants of unemployment benefit who are deemed to be “culpably unemployed” under Dutch law may apply only in cases where unemployment has been caused by the wilful misconduct of the person concerned, whereas passive behaviour by which this person omits or neglects to protest against dismissal may not necessarily be wilful. In reply, the Government indicates that, from 1 October 2006, unemployment benefit will no longer be refused due to the fact that the employee accepts or does not oppose his or her dismissal. The Committee welcomes this change in the regime of sanctions applied to claimants of unemployment benefit, which will permit better application of the corresponding provisions of the Convention.

The Committee raises a number of further questions in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

With reference to its previous comments, the Committee notes the information supplied by the Government in its report on the Convention for the period from 1 June 1996 to 1 July 2001, as well as in its annual reports on the application of the European Code of Social Security (ECSS). In reply to the questions raised in the Committee’s direct request of 1997, the Government supplied in the annex to the report the answers it has provided under the ECSS in 1998 on the same questions, which the Committee has already noted in its subsequent conclusions under the ECSS. It notes the updated statistics on the level of the unemployment benefit.

Part II (Medical care), Article 10, paragraphs 1(b) and 2, and Part VIII (Maternity benefit), Article 49, paragraph 2, of the Convention. The Committee would like the Government to refer to its comments under Convention No. 103.

Part V (Standards to be complied with by periodical payments). The Committee notes the calculations of the level of certain benefits provided by the Government in its report for June 1999, as well as in its 35th report on the ECSS for June 2002. It also notes the complex structure of the family allowances provided during employment and during the contingency, which depend on the age of the child, the size of the family and whether the child was born before or after 1 January 1995. In order to ascertain whether the minimum level of benefits prescribed by the Convention is attained for a standard beneficiary with family responsibilities (a man with wife and two children or a widow with two children), in all cases, the Committee asks the Government to use in its calculations the lowest amount of the family allowance provided for a dependent child. The Committee understands from the 35th report on the ECSS that the lowest amount of family allowance is paid with respect of a child under 6 years of age born after 1 January 1995. It would like the Government to confirm this understanding and, if so, to use the corresponding monthly amount of this family allowance for two children in the calculation of the level of benefits. The Committee would also be grateful if the Government would specify whether a holiday allowance, to which it refers in the calculation of benefits, is also paid during employment and, if so, if its amount is different from that paid during the contingency in question. Finally, with these considerations in mind, it would like the Government to supply up-to-date statistics on the level of benefits for the period covered by its next report, provided on the same time basis and in the manner requested in the report form on the Convention, with a clear indication of whether the statistics refer to gross or net amounts.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

With reference to its previous comments, the Committee notes the information supplied by the Government in its report on the Convention for the period from 1 June 1996 to 1 July 2001, as well as in its annual reports on the application of the European Code of Social Security (ECSS). The Committee also notes the supplied brochures "A short survey of social security in the Netherlands, January 2001", "The Dutch disablement benefits system", and the report prepared for the Parliament "Efforts to reintegrate the unemployed: An overview".

Part III (Sickness benefit) and Part IX (Invalidity benefit) of the Convention in relation to Part XIII (Common provisions), Articles 71 and 72. In its previous comments, the Committee examined the implementation of the 1996 reform of the Civil Code, under which the responsibility for the payment of sickness benefit in the form of wages for a maximum of 52 weeks was transferred from the social security system to enterprises, in the light of the general principles concerning the organization and management of social security schemes laid down by the Convention. Describing the aims of the reform in its report, the Government states that the new law introduced a system of free market forces in respect of the Sickness Benefits Act (ZW), which had thus been privatized to a large extent. Employers could decide whether to bear the risk of paying wages to sick employees themselves or reinsure the risk with private insurance companies. Sickness benefit under the ZW was maintained as a safety net in cases where the employer could not be held responsible for the payment of wages to sick employees. In 1998, the privatization of the sickness benefit scheme has been followed by similar measures as regards the invalidity benefit scheme introduced by the PEMBA Act, which changed the manner of financing employers’ contributions under the Disablement Benefits Act (WAO). As explained in the brochure "The Dutch disablement benefits system" (on pages 5 and 7), "in Dutch, PEMBA stands for: contribution differentiation and market forces in connection with disablement benefits". The employer may choose either to pay the differentiated contribution to the social insurance agency, or to bear the risk himself by paying the disablement benefit for the first five years of invalidity of his employee, or else to cover that risk by taking out insurance with a private insurance company; the Government’s intention here being "to allow market forces to take effect (competition)". As in the case of the reform of the sickness benefit scheme, the implementation of the PEMBA Act has been also closely followed by the Committee in its previous conclusions under the ECSS in view of the similar risks of health becoming a criterion of selection in recruitment and the breach opened in the collective nature of the financing of the invalidity branch. It notes from the Government’s 35th annual report on the ECSS that, in 2001, there were still only 3,417 (1,612 in 1999) employers with fewer than 15 employees and 836 (536 in 1999) employers with at least 15 employees who had decided to take out a private insurance under the PEMBA Act to cover the risk of invalidity directly. To monitor the spread of the reforms and the redistribution of responsibilities in the private sector, the Committee would be grateful if the Government would continue to provide statistics in future reports indicating the number of enterprises which have decided to assume the risk of invalidity or sickness of their employees themselves, as well as the number of enterprises which have decided to take out collective insurance for these risks with private insurance companies, including the total number of employees employed by such enterprises. The Committee would also like to be informed of the regulatory and supervisory measures taken by the State in compliance with Articles 71(3) and 72(2) of the Convention to ensure the financial viability and proper functioning of the private insurance companies providing sickness and disability benefits.

The Committee recalls that both reforms were undertaken to encourage employers to prevent and reduce the number of days of absence caused by sickness and disablement of their employees and that, in view of the much greater numbers of workers unavailable for work due to these reasons in the Netherlands than in the comparable countries, it was expected that the market forces and competition would prove to be more effective in achieving this goal. At the same time, the Government has taken care to maintain the basic social security benefits provided under the ZW and WAO in all cases in which the employers and market forces fail to produce the desired effect. Moreover, the entitlements of the persons protected to these benefits have been safeguarded by a number of additional legislative measures reported by the Government, which have been gradually put in place to mitigate the negative effects of the market forces, which tend to discriminate against the weak and vulnerable and undermine the basic spirit of solidarity inherent in any social security system. The Committee is bound to observe that the resulting reforms to the sickness and disability benefits schemes intended to harness the positive effects of privatization and market forces, while containing their negative effects within the basic social security framework, has no comparison in the history of social security in Europe. It is thus only natural that they pose many new problems of organization and governance of such mixed social security systems, particularly during the transition period, when the new forms of state supervision of the system, the democratic participation of the persons protected in its management, the redistribution of the risk, financial burden and responsibility in society, and the principles of non-discrimination and solidarity with the most vulnerable groups are consolidated. The Committee wishes to recall that, while there is no single right model of social security, all systems should conform to certain basic principles of good governance and social cohesion, the observance of which comes under the general responsibility of the State established in Articles 71(3) and 72(2) of the Convention. Moreover, it is during such periods of reforms and transition that the responsibility of the State takes on particular importance for the future development of social security, including at the international level. In view of the profound and continuing nature of the social security reforms in the Netherlands, the Committee would like the Government to provide in its next report, with reference to Parts III, IV and V of the report form on the Convention, an in-depth explanation of its strategy and reform policies, highlighting the principles on which the new design of the sickness and disability schemes is based, the difficulties encountered in the reform process and the major decisions handed down in this respect by courts of law and other tribunals.

With regard more particularly to Article 72(1) of the Convention, which provides for the participation of the representatives of the persons protected or their association in a consultative capacity with the management of the social security system, the Committee recalls that, at the national level, workers’ organizations participate in the National Institute for Social Insurance (LISV) and in the sectoral councils, as well as in the negotiation of collective agreements regarding sickness benefit; at the company level, employees’ councils are fully associated in determining the respective procedures by mutual agreement with the employer; and at the individual level, the persons protected have recourse to an independent medical expert or Arbodienst (occupational health and safety service) and participate in the establishment of plans for their reintegration into active employment. In addition, the Government indicates in its 35th report on the ECSS that, as from 1 January 2002, there have been fundamental changes in the implementation of the social insurance schemes for employees, as well as for the disabled self-employed persons and young handicapped persons. In particular, the agencies responsible for administration of employees’ insurance schemes have been united into a single central organization (UWV). In order to guarantee the adequate participation of employees, employers and municipalities, the Board of Work and Income (RWI) has been created, which advises the Minister of Social Affairs and Employment on matters related to labour and income and provides subsidies to branches and companies to promote the reintegration of unemployed persons and social security beneficiaries. The Committee notes these new developments with interest and would like the Government to be asked to supply more details on the role played by the representatives of employees in the newly created bodies, as well as to indicate other measures taken or contemplated to further promote a strong role for workers’ organizations and the participation of the representatives of the persons protected at the various levels of management, particularly in relation to private benefit providers.

With regard to the guarantees intended to prevent the most vulnerable groups of the population from suffering discrimination which are inherent in the system of the collective financing of risks, as set out in Article 71(1) of the Convention, the Committee recalls that protection for workers with a previous medical history against discrimination in access to employment is offered by the Medical Examinations Act of 1998, which also prohibits medical examinations and the selection of personnel in connection with the private insurance taken out by employers to cover the financial risks engendered by the sickness of their personnel. With regard to the protection of sick workers in employment and against the loss of their jobs, reference should be made to the obligation of all companies to be affiliated with a certified Arbodienst, to draw up reintegration plans for employees suffering prolonged illness and to have recourse to the assistance of Arbodienst for the reintegration of such employees. Under the Reintegration of the Work Disabled Act (REA), which came into force on 1 July 1998, employers do not have to pay the sick employee’s wages if the re-employed disabled person falls ill during a subsequent period of five years, during which she/he will receive sickness benefit from the social security agency. The report prepared for Parliament "Efforts to reintegrate the unemployed: An overview", and supplied by the Government with its report, describes increased policy measures adopted in 1999 for the integration into employment of persons in a vulnerable position on the labour market, including persons incapacitated for work. The Committee notes in particular the proposed new rules for the exchange of data between the employer, the Arbodienst and the social security agencies during the first year of an employee’s sickness, the objective of which is the more rapid and effective reintegration of sick unemployed persons and a reduction of the inflow of new beneficiaries into the disability benefit scheme (implementation of the new "gatekeeper model"). In this respect, the Government indicates in its 35th report on the ECSS that the protection of sick workers has been strengthened by the entry into force on 1 January 2002 of the Gatekeeper Improvement Act (Wet Verbetering Poortwachter), which obliges the employer to report cases of employee illness to the Arbodienst and, on the basis of the problem analysis prepared by the Arbodienst in the sixth week of illness, to draw up in writing a reintegration plan in agreement with the employee concerned. The Committee further notes from the above parliamentary report (pages 44-45) that the Secretary of State is preparing a legislative proposal to improve sick leave supervision in the first year of sickness and that the evaluation of the achievements under the REA is due in 2000. It hopes that the Government will include information on the progress made in this respect in its next report.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

With reference to its previous comments, the Committee notes the information supplied by the Government in its 30th annual report on the application of the European Code of Social Security and its Protocol. It wishes to draw the Government's attention to the following points:

1. Part II (Medical care) of the Convention. (a) Article 10, paragraphs 1(b) and 2(b), and Part VIII (Maternity benefit), Article 49, paragraph 2. In its previous conclusions, the Committee asked the Government to provide a copy of the legislative provisions abolishing, as from 1 January 1996, sharing by the beneficiaries in the cost of medical care in confinement, when such care is medically prescribed and given in a hospital or special nursing home. In is report on the Code, the Government supplies a copy of the regulations of the Ministry of Health, Welfare and Sports of 7 August 1995, No. VMP/VA-952488 ("Regeling eigen bijdrage kraamzorg ziekenfondsverzekeing"). The Committee reserves the possibility of examining this legislation when translated. It also notes the decision of the Central Board of Appeal of 29 May 1996, which states in particular that the provisions requiring sharing by the beneficiary in the cost of medical care related to confinement in a hospital or a specialized medical institution (section 3(a) of "Besluit ziekenhuisverpleging" as amended in 1980) were abolished, as from 1 January 1996, by the regulation of the Ministry of Health, Welfare and Sports of 4 December 1995, No. VMP/VA-954221. The Committee would like the Government to supply a copy of this regulation in its next report, inasmuch as it is still in force.

(b) With reference to its previous comments concerning the ongoing reform of the national health system, the Committee notes that, as from 1 January 1997, it has introduced a new contribution system which requires a personal contribution of 20 per cent of the medical costs or Fl.8 per day in case of hospitalization, subject to the maximum contribution of Fl.200 per year. In this respect, it notes in particular the Government's statement in its report on the Code confirming that obstetric care and admission to a hospital on medical grounds in case of maternity and confinement are excluded from this measure. The Committee looks forward to receiving with the Government's next report a copy of all the relevant legal provisions instituting the new contribution system.

2. Part III (Sickness benefit) (in relation to Part XIII (Common provisions), Articles 71 and 72). In its previous comments, the Committee noted that, as of 1 March 1996, the Civil Code, as amended by the Act of 8 February 1996, obliges employers to continue to pay part of the wages of sick employees (70 per cent of their wages or the minimum wage if the latter is higher), for a maximum period of 52 weeks. The Sickness Benefits Act (ZW) still exists as a safety net in cases where an employer cannot be held responsible for maintaining the payment of wages. Given that as a result of these measures the responsibility for the payment of sickness benefits has been transferred, in the vast majority of cases, from the social security scheme to enterprises, regardless of their size, the Committee requested the Government to indicate the manner in which the new system of sickness benefits paid for by employers complied with the general principles governing the organization and operation of social security schemes prescribed in Articles 71 and 72 of the Convention.

As regards the social security benefits provided for by the law for sick employees, the Government indicates in its report on the Code that their financing is ensured from the General Unemployment Fund and the Economic Redundancy Fund, which are themselves financed from employers' and workers' contributions. Furthermore, the Government refers to the new Organization of Social Insurance Act which came into force on 1 March 1997. In accordance with this Act, occupational insurance institutions shall entrust the administration of employees' insurance schemes to independent social security agencies. Sectoral management has been replaced by a central council, the National Social Insurance Institute (LISV), which is responsible for coordinating and managing agencies, fixing contribution rates, budgeting costs and administering funds. The management of the National Social Insurance Institute includes members from among employers and workers. The Committee notes with interest this information which shows that the sickness benefits paid within the framework of the Sickness Benefits Act (ZW) still correspond to the general principles established by the Convention in terms of methods of protection.

Since the reform of 1996, the provisions of the Sickness Benefits Act (ZW) apply only in a subsidiary way and in a limited number of cases. The Committee recalls that its concerns related to the obligation placed on employers to ensure directly the maintenance of part of a sick employee's wage, in accordance with the provisions of the Civil Code. In this regard, the Committee noted that, according to the said report, employers are obliged by the law to establish an environment which may prevent, as far as possible, disease and incapacity, to formulate a policy for these purposes and to consult employees' councils on these matters; in addition, both employers and employees are obliged to determine, by mutual agreement, the rights and obligations of sick employees, the manner in which a medical examination should be conducted and the penalties imposed in case of non-observance of the legal provisions relating to sickness. The Committee requests the Government to specify, in its next report, the relevant legal provisions and to provide examples of sickness and benefit payment agreements concluded by the social partners, which may illustrate the manner in which effect is given to Article 72, paragraph 1, of the Convention, which specifies that where the administration is not entrusted to a government department responsible to a legislature, representatives of the persons protected shall participate in the management of the system or be associated therewith. Please indicate the manner in which these agreements are applied to small-scale enterprises.

The Government has also provided a certain amount of information on the measures taken to ensure that, in practice, workers avail themselves of their right to sickness benefit. In this regard, the Government confirms that in case of the redundancy of a sick worker owing to the insolvency of his employer, the worker shall be entitled to sickness benefits, in accordance with the Sickness Benefits Act (ZW). Furthermore, in the case of suspension of payment by an employer, all workers shall be entitled to a special unemployment benefit in case of sickness for a maximum period of 13 weeks. In addition, the Government specifies that, where employers do not fulfil their obligations in an appropriate manner or dismiss workers for the sole purpose of not paying the benefits owing to them, workers have the possibility to take their cases to an independent civil court whose decisions are binding both on employers and on workers. The Government emphasizes, however, that dismissal resulting from sickness is formally prohibited under the provisions of the Civil Code. The Committee notes this information. It recalls that, according to Article 18 of the Convention, sickness benefits shall be paid in all cases for a minimum period of 26 weeks per case of sickness. Consequently, the Committee is not certain how effect is given to this provision of the Convention, for workers to whom the payment of sickness benefits has been suspended and whose state of incapacity continues to exist after the 13 weeks referred to by the Government have elapsed. The Committee hopes that the Government's next report will contain information in this regard. Furthermore, without underestimating the importance of the existing rights to appeal before civil courts, the Committee wishes, however, to emphasize the fact that workers should not, as a rule, have to take their cases to court in order to receive the sickness benefits to which they are entitled. The Committee recalls that, pursuant to Article 71, paragraph 3, and Article 72, paragraph 2, of the Convention, the State shall accept general responsibility for the due provision of the benefits, and in the particular case of sickness benefits shall take all the necessary measures to achieve this aim in practice, which implies, in a system such as that established in 1996 in the Netherlands, that increased supervisory measures shall be adopted in order to guarantee the rights of the persons protected against all risk of abuse or malfunctioning of the system. The Committee again requests the Government to provide, with its next report, information on the manner in which the new system is monitored, including statistics on the number of inspections made and the number of infringements recorded, the follow-up action taken and penalties imposed, the number of cases referred to the civil courts and the nature of the decisions taken. The Committee also hopes that the Government will be able to provide detailed information regarding the possibility of restricting, by individual agreement, the rights of workers to sick leave.

By contrast, the Committee has found that the Government's report does not contain information on the manner in which Article 71, paragraph 1, relating to the collective financing of benefits and their administration costs, finds its application as part of the new system which makes employers directly responsible for the payment of sickness benefits for the whole of the period of protection provided for by the Convention. The Committee recalls the importance it attaches to the collective financing of benefits, which aims to ensure that the risks involved are shared between the different members of the community and is the only way to prevent the most underprivileged from being subject to discrimination. The Committee considers that the general principles relating to methods of protection, as established by the Convention, are likely to remain ineffective where, as is the case in the Netherlands, the payment of sickness benefits rests directly on the employer who may be tempted to avoid his obligations by exerting pressure on workers or by dismissing them, or even by refusing to employ workers with previous medical records. Consequently, the Committee hopes that the Government will be able to re-examine the matter in the light of the comments appearing above and that, in its next report, it will be able to indicate all the measures taken or envisaged to ensure the full application of the Convention, in this regard.

3. Part IV (Unemployment benefit). (a) In relation to Part XI (Standards to be complied with by periodical payments), Article 66. Following its previous comments, the Committee has examined the Act of 22 December 1994 which amends the Unemployment Act. It notes that, under section 17 of the Act as amended, entitlement to a wage-related unemployment benefit is now subject to a double qualifying period: (i) having been engaged in paid employment for at least 26 weeks during 39 weeks prior to unemployment; and (ii) having received wages for 52 days or more per year in at least four of the five calendar years preceding the year of unemployment. According to sections 52(b), 52(g) and 52(i), persons who fulfil only the first requirement of the qualifying period become entitled to short-term benefit payable for six months at the rate of 70 per cent of the minimum wage or, as an exception, of 70 per cent of the daily wage where it is lower than the minimum wage. Persons who fulfil both requirements become entitled to the wage-related benefit paid at the rate of 70 per cent of the daily wage (section 47 of the Act). The Committee observes that the second requirement of the qualifying period necessary to qualify for the wage-related benefit appears to go beyond the period which might be considered necessary to preclude abuse, within the sense of Article 23 of the Convention. As regards the short-term benefit which conforms to the conditions of entitlement established by the Convention, the Committee notes that it is a flat-rate benefit and, as such, should satisfy the replacement level calculated in accordance with Article 66 of the Convention. The Committee would therefore like the Government to be asked to provide in its next report the statistical information requested in the report form under Titles I, II and V of Article 66. Furthermore, as such a flat-rate benefit should be ensured to all persons covered by Article 21 of the Convention, the Committee would like the Government to explain in which cases, referred to in section 52(i) of the above-mentioned Act, the daily wage would be lower than the minimum wage.

(b) Article 20. The Committee notes that a new paragraph was added to section 24 of the Unemployment Act to the effect that more specific rules shall be laid down by Order in Council concerning the concept of "suitable work" mentioned in paragraphs 1 and 3 of the said section. The Committee would like the Government to be asked to supply the text of such rules as well as to provide detailed information on their content and impact on the definition of the contingency under this Article of the Convention.

4. Lastly, the Committee would once again like the Government to provide a copy of the updated consolidated texts in Dutch of the social security laws in force, if and when such consolidation would be available.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee takes note of the information supplied by the Government in its report and in the 29th report on the application of the European Code of Social Security and its Protocol. It is also aware of the publication of the Ministry of Health, Welfare and Sport entitled "Health Insurance in the Netherlands" and that of the Ministry of Social Affairs and Employment, which contains a brief analysis of social security in the Netherlands. The Committee would appreciate receiving additional information on the following points:

I. Part II (Medical Care), Article 10, paragraphs 1(b) and 2, and Part VIII (Maternity benefit), Article 49, paragraph 2, of the Convention. 1. Referring to its previous comments, the Committee notes with interest that, according to the Government's report on the European Code of Social Security, as from 1 January 1996 beneficiaries need no longer have to share in the cost of medical care during confinement, when this care is medically prescribed and given in a hospital or a special nursing home, and that, from now on, in accordance with the standards embodied in the Convention, there is no longer cost sharing in cases of pre-natal, confinement and post-natal care. The Committee would like the Government to provide with its next report the text of the legislative provisions abolishing the cost sharing by insured persons.

2. The Committee notes with interest the information communicated by the Government on the reform of the health system. It would like the Government's future reports to continue providing information on any new development which might come about in this field.

II. Part III (Sickness benefit). The Committee takes note of the Act of 8 February 1996 amending the Civil Code, the Sickness Benefits Act, as well as several Acts concerning maintenance of the wages of sick employees at the expense of the employers. It notes that, as from 1 March 1996, the Civil Code requires employers to continue to pay a part of the wage of a sick employee (70 per cent of the wage or the minimum wage if the latter is higher). The employer pays the wage until the employee has been on sick leave for a maximum period of 52 weeks, though a two-day waiting period is authorized. The Sickness Benefits Act (ZW) still exists as a safety net for employees who no longer have employers, that is, in particular, for employees whose contract has expired or who lost their jobs during the first year of sickness, and for temporary workers. The same situation applies in the event of bankruptcy of the employer.

The Committee notes that, in the great majority of cases, sick pay is now the responsibility of the enterprise, whatever its size, and that the provisions of the sickness insurance apply only subsidiarily and in a limited number of cases. The Committee recalls that the Convention, in a deliberate effort to remain flexible, allows the requisite protection to be ensured by differing methods in view of the variety of situations which can arise in the different countries. However, the Convention does lay down certain criteria of general scope relating to the functioning of social security systems. The system must be financed collectively by contributions or taxation or both (Article 71) so that the risks are shared among the various members of the community. It may be administered by a government department or by any other institution or body provided that, in this case, representatives of the persons protected participate in the management or are associated with it (Article 72). The Committee would accordingly like the Government to indicate in its next report the manner in which the new system, established by the Act of 8 February 1996 whereby the employer maintains the wage of sick employees, continues to meet these criteria.

In addition, the Committee stresses that, in conformity with Article 71, paragraph 3, of the Convention, the State must accept general responsibility for the provision of sickness benefits to which workers are entitled, by taking all measures required for this purpose in practice. This implies taking measures to avert any risk of abuse by some employers who might be tempted to evade their responsibilities by putting pressure on their employees. The Committee would accordingly ask the Government to provide in its next report detailed information on the measures taken to ensure that, in practice, workers effectively receive their entitlements to sickness benefit, in accordance with the provisions of the Convention. In particular, it would like to receive information on how the new system is supervised and on the measures which are taken when employers fail to meet their obligations properly or dismiss workers so as to avoid paying them their entitlements. The Committee would also like to receive from the Government information on the number of inspections carried out, infringements recorded and penalties imposed. Finally, it requests the Government to supply detailed information on the possibility of restricting, by individual agreement, the entitlements of workers in respect of sickness benefit and leave.

III. The Committee also notes the adoption of the Act of 22 December 1994 which, inter alia, amends the Employment Act. It reserves the possibility of examining this legislation in more detail when it has a translation of the text in French or English.

IV. Lastly, the Committee notes that in the last few years, there have been very many amendments of the social security legislation. In order to facilitate its examination of these reforms, the Committee would like the Government to communicate the consolidated texts in Dutch - including adopted amendments of the various social security laws in force in the Netherlands as soon as they have been consolidated.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

1. Part II (Medical care), Article 10, paragraphs 1(b) and 2(b), and Part VIII (Maternity benefit), Article 49, paragraph 2, of the Convention. In reply to the Committee's previous comments, the Government indicates that the question of the elimination of the direct participation by beneficiaries in the cost of medical care in the event of pregnancy and confinement and their consequences is currently the subject of an in-depth examination in the framework of the progressive process of the transformation of the various health insurance schemes in the Netherlands into a general compulsory scheme which will be extended to all residents. The elimination of personal contributions to the cost of medical care in the event of confinement will be strongly encouraged, particularly when the above care is provided in hospital upon medical advice. This question is also the subject of continued political debate. The Committee notes this information. It once again hopes that, in the context of the health insurance reform, the necessary measures will be adopted to eliminate personal contributions by beneficiaries to the cost of medical care during confinement, when this care is provided upon medical advice, in a hospital or special maternity centre, in accordance with the above provisions of the Convention which, with the exception of pharmaceutical supplies, does not authorize such contributions in cases of pregnancy and confinement and their consequences.

2. In its report, the Government supplies new information concerning the reform of health insurance, of which the second stage commenced on 1 January 1992. It indicates in particular that a number of benefits, including the provision of pharmaceutical products, are now covered by the Exceptional Medical Expenses Act. It will be for the persons covered by this Act to decide whether to pay a part of the costs of health care themselves (up to a certain amount) during the procedure of reimbursement or payment by a third party in order to decrease the nominal amount of the contribution. The Committee notes this information. It also notes the summary provided by the Government in the context of its 25th report on the application of the European Code of Social Security as amended by its Protocol, which indicates the care and services to which beneficiaries are entitled under the Exceptional Medical Expenses Act, as set out in the regulations adopted under section 6 of the above Act, as well as a summary of the Regulations on pharmaceutical assistance. According to these regulations, insured persons are offered a package of qualitatively good medicines without having to make any supplementary payment; however, medicines are not included in this package if there exists another pharmaceutical speciality of good quality at a lower price. The Committee requests the Government to continue supplying detailed information on the implementation of this reform, particularly in the light of the relevant provisions of Parts II, VI, VIII and XIII of the Convention, and to supply the text of any relevant new legislation or regulations.

The Committee reserves the possibility of examining in greater detail the text of the decree on the services provided for under the Exceptional Medical Expenses Act, and the Regulation on pharmaceutical assistance of 23 December 1991, as soon as it has at its disposal the translation which is currently being made of these texts.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

1. Further to its previous comments, the Committee takes note of the information supplied by the Government in its report concerning, in particular, the suspension of unemployment benefit (Part IV (Unemployment Benefit), Article 24 (in conjunction with Article 69 of the Convention)), and the financing of benefits (Part XII (Common Provisions), Article 71, paragraph 2 of the Convention).

2. Part II (Medical Care), Article 10, paragraphs 1(b), and Part VIII (Maternity Benefit), Article 49, paragraph 2, of the Convention. With reference to the Committee's previous comments concerning personal contributions by beneficiaries to the cost of care during their confinement when such care is provided, on medical advice, in a hospital or special maternity home, the Government states that within the intended reform of the medical insurance system the abolition of personal contributions for maternity care will be promoted. The Committee notes this statement with interest. It expresses the hope that the necessary measures will be adopted in the near future so as to ensure full application of the aforementioned provisions of the Convention, which do not authorise direct contributions by beneficiaries in the cost of medical care, with the exception of pharmaceutical supplies, in cases of pregnancy and confinement and their consequences.

3. Please also supply the text of the Act of 14 December 1967 on compensation for exceptional medical expenses, last amended on 20 December 1989 (consolidated text issued on 23 April 1990) as well as, if possible, an English version thereof.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

1. The Committee takes note of the Government's detailed report and notes the new amendments to the legislation concerning the various insurance schemes. It also notes that these amendments, although they contain certain improvements - particularly regarding equal treatment for men and women in respect of the amount of the benefits and of the extension of the scope of medical care and unemployment insurance - contain restrictive measures such as the reduction in benefit levels, the increase in the rate of sharing by insured persons in the cost of health care, the increase in contributions, etc. While aware of the need for certain measures to curb the growing costs of social security, the Committee hopes that the Government will make every effort to ensure that such measures have no adverse effects on the application of the Convention.

2. The Committee also takes note of the information supplied by the Government in reply to its previous comments and would like to point out the following:

(a) Part II (Medical care), Article 10, paragraph 1(b), and Part VIII (Maternity benefit), Article 49, paragraph 2 of the Convention. The Committee requested the Government to state whether the sharing by the beneficiaries in the cost of medical care in the event of maternity, provided for in the national health care scheme, concerns only home or "local" care given by "a maternity attendant", or whether it also relates to pre-natal, confinement and post-natal care given by a medical practitioner or qualified midwife. In the second case, the provisions of national law and practice would be contrary to the Convention. The Government confirms in its report that, in case of maternity, beneficiaries must share in the cost of medical care, even when such care is prescribed by a medical practitioner in a hospital or specialised nursing home. It also indicates that the Act of 1 April 1986 concerning access to health insurance (WTZ), amending the General Sickness Insurance Act, provides for the possibility of recourse - without any special conditions having to be met - to a standard private health insurance under government supervison and that this insurance is regulated by the provisions on private medical insurance, access to which is governed by the conditions laid down in the Act of 27 March 1986. The Committee notes this information and the reasons why the Government adopted this policy, which aims to encourage confinement at home, and in 1980 abolished free hospital care in this case. The Committee nevertheless recalls that the above-mentioned provisions of the Convention do not authorise sharing by beneficiaries in the cost of medical care in the case of maternity and it hopes that the Government will consider re-examining the question and taking the necessary measures to ensure more effective application of the Convention on this point.

(b) Part XIII (Common provisions), Article 71, paragraph 2. In reply to the Committee's previous comments, the Government indicates that the financing of social security schemes is provided, according to the various branches, either entirely by contributions from employers (as is the case of family benefit, for example) or entirely by contributions from beneficiaries (as, for example, in the case of old-age, invalidity and survivors' benefits), or by 50 per cent contributions from each (as is the case for unemployment benefit). The Committee nevertheless notes from the statistical data provided by the Government in connection with the European Code of Social Security, that the share borne by employees protected in the constitution of the insurance resources attained, in 1987, 54.5 per cent of the total of these resources, whereas under the above-mentioned provision of the Convention, the total of the insurance contributions borne by the employees protected, and their wives and children (except those for family benefit, already taken into consideration in the statistics of the Government) must not exceed 50 per cent. The Committee hopes that the Government will make every effort to ensure that the contribution of these beneficiaries to the financial resources of the insurance schemes does not exceed the rate fixed by the Convention.

3. The Committee has also examined the new legislation on unemployment insurance (Act of 6 November 1986) and requests the Government to furnish certain particulars on the following points:

Part IV (Unemployment benefit), Article 24 (in conjunction with Article 69). Under section 19, subsections 1(k) and (l) of the above-mentioned Act, unemployed workers who are on holiday or who have lost their employment as a result of a strike or a lock-out are not entitled to unemployment benefit. Since, in the first of these cases, the Convention does not provide for any grounds of suspension and, in the second case, suspension of benefits is only authorised when the person concerned has lost his employment as a direct result of a work stoppage due to a trade dispute, the Committee requests the Government to indicate the manner in which the above provisions of the national legislation are applied in practice and to provide, if possible, examples of cases in which they have been applied. [The Government is asked to report in detail for the period ending 30 June 1990.]