Home Work Convention, 1996 (No. 177) - Netherlands (Ratification: 2002)

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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 28 September 2018. The Committee requests the Government to provide its comments in this respect.

Articles 1, 2 and 3 of the Convention. National policy on homework. In reply to the social partners’ previous observations, the Government indicates that the fact that an employee works – mostly on a voluntary basis – on a fixed day at home, can be seen as a situation which is included in the definition of “homeworkers” provided in the Convention. It further indicates that homeworkers without employee status are not covered under the Convention. The Government also provides information concerning amendments to the Minimum Wage Act (2018), according to which persons working on the basis of a contract containing specific instructions qualify for the minimum wage unless they work as self-employed earners, while the minimum wage does not apply to piece- or performance-based work. The CVN, FNV and VCP express concern regarding the definition of “homeworkers” provided by the Government. They observe that, according to the Dutch homework arrangement, a homeworker is someone who exclusively works at home and does not outsource his or her work. They maintain that this arrangement was created to protect vulnerable self-employed people from loss of income in case of illness, incapacity for work and employment, given that an employee falling within this arrangement is protected by the social safety net and the client is responsible for making payroll tax payments. The trade unions observe that the occasional employee working at home instead of at the workplace is not covered by this arrangement and, thus, does not enjoy the same protections. They add that, pursuant to the General Administrative Order of 8 April 2016, this protection can now be easily excluded by a client in a written agreement and they urge the Government to annul the Order. The Committee recalls that the social partners have repeatedly observed that there is no national policy relating to homework and that, contrary to the stated intention of the Government, the social partners have not been invited to discuss the situation of homeworkers. The Government reiterates its position that because homeworkers enjoy the same protection as other workers, no separate policy is required to guarantee them the protection resulting from the Convention. It indicates that, in the framework of regular discussions on labour legislation and the labour market held between the Government and the social partners, a discussion on the position of homeworkers in a broad sense could take place. The Committee draws the Government’s attention to the requirement arising from Article 3 of the Convention to adopt, implement and periodically review, in consultation with the social partners (including organizations concerned with homeworkers and those of employers of homeworkers), a national policy on homework which aims to improve the employment and working conditions of homeworkers. The Committee requests the Government to specify the tripartite consultations undertaken relevant to the development and implementation of a national policy on homework, and to provide updated information regarding progress made in adopting a national homework policy.

Article 4. Equality of treatment between homeworkers and other wage earners. In their observations, the FNV, CNV and VCP express the view that women homeworkers should be entitled to maternity leave regardless of their employment status. The FNV urges the Government to look into this problem and, at a minimum, extend the maternity leave allowance for self-employed workers to homeworkers. In its response, the Government indicates that homeworkers are entitled to the same maternity protection coverage under the labour legislation as other wage earners but does not specify the relevant legal provision. The Committee notes the benefits stated by the Government and acknowledges its full reply.

Part V of the report form. Application in practice. The Committee welcomes the statistical information provided by the Government regarding the number of employees that usually work at home. The Committee requests the Government to provide information of a general nature concerning the application of the Convention in practice, including statistics on the number of workers covered by the Convention, if possible broken down by gender and age, as well as copies of official reports or research studies concerning the working conditions of homeworkers.

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

Article 3 of the Convention. National policy. Further to its previous comment, the Committee notes the Government’s indication that it does not conduct an autonomous home work policy even though it has a policy on teleworking, which, in the Government’s view, is explicitly excluded from the scope of the Convention. The Committee wishes to recall, in this respect, that while it is true that the Convention does not apply to persons with employee status who occasionally perform their work as employees at home rather than at their usual workplaces, teleworking as a permanent arrangement, whether full-time or part-time – and not alternating with office-based work – is clearly covered by the definition of the term “home work” set out in Article 1(a) of the Convention. In addition, the Committee notes that the Government’s report does not reply to any of the comments previously made by the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation for Middle and Higher Level Employees (MHP), all indicating that a specific policy on home work is required in view of the growing incidence of telework and home work and problems of enforcement of homeworkers’ rights. Recalling once again that the Convention requires ratifying members to adopt, implement and periodically review, in consultation with the social partners, a national policy on home work, the Committee requests the Government to specify whether any consultations have so far been undertaken on this matter and to keep the Office informed of any further developments regarding the possible adoption of a national home work policy. The Committee also requests the Government to provide its response to the observations of the FNV, the CNV and the MHP.

Article 4. Equality of treatment between homeworkers and other wage earners. Noting the Government’s clarifications about the distinction between homeworkers and domestic workers, the Committee requests the Government to confirm that homeworkers are entitled to the same maternity protection coverage as other wage earners and to specify any relevant legal provisions in this regard.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 3 of the Convention. National policy on home work. Further to its previous comment on this point, the Committee notes the Government’s reply that because homeworkers are often persons enjoying the same protection as employees in an enterprise, no separate policy is required to offer them the protection resulting from the Convention. It is of the view, however, that this statement risks to be an oversimplification of the purpose of the Convention. The Committee draws the Government’s attention to the clear obligation arising from this Article of the Convention to adopt, implement and periodically review, in consultation with the social partners including organizations concerned with homeworkers and those of employers of homeworkers, a national policy on home work which, even though may not necessarily be a separate sectoral policy or result in the adoption of exclusive legislation applicable only to home work, should nonetheless directly focus and impact on the employment and working conditions of homeworkers. The Committee welcomes the Government’s intention to follow the development of homeworking closely as well as its preparedness to initiate further research and develop policy initiatives, if necessary. It also notes the Government’s indications that there are sufficient opportunities for tripartite consultations on this issue, including the Joint Industrial Labour Council (STAR), the Social Economic Council (SER) and the regular quarterly consultations on ILO Conventions. The Committee accordingly requests the Government to provide in its next report full particulars on measures taken or envisaged to adopt and implement a home work policy, it being understood that such a policy may well be elaborated within the context of other labour policies.

Article 4. Equality of treatment between homeworkers and other wage earners. The Committee notes the Government’s explanations concerning the protection afforded to homeworkers in relation to the right to organize, non‑discrimination, occupational safety and health, remuneration and social security protection. As regards maternity protection, the Committee understands that homeworkers are not entitled to maternity leave and childbirth benefits since it is thought that they enjoy more opportunities than on-site employees to arrange work–family priorities according to their needs and preferences. The Committee observes that the Government’s explanations are not very clear on this point. It therefore requests the Government to further clarify how the exclusion of homeworkers from the coverage of the legislation on maternity protection may be deemed consonant with the requirements of this Article of the Convention.

Article 7. Occupational safety and health. The Committee once again requests the Government to indicate whether national laws and regulations have established the conditions under which certain types of work and the use of certain substances is prohibited in home work for reasons of safety and health, as required by this Article of the Convention.

Article 9. Inspection system. The Committee notes the Government’s indication that the health and safety inspectorate does not carry out any active inspections with respect to home work – because of the fact that homeworkers are difficult to trace – and, therefore, can only respond to complaints filed by homeworkers. The Committee recalls, however, that the Convention requires a system of inspection and sanctions to ensure compliance with the laws and regulations applicable to home work, especially in view of the fact that homeworkers are often dispersed and isolated and thus less able to invoke for themselves the traditional mechanisms of control. The Committee therefore requests the Government to supply information on any specific measures designed to improve the supervision of the implementation of the national labour legislation with respect to homeworkers.

Part V of the report form. Application in practice. The Committee notes the statistical information concerning the evolution of the number of homeworkers in the period 2004–07. The Committee would be grateful if the Government would continue providing information on the manner in which the Convention is applied in practice including, for instance, up to date statistics on the number of workers covered by the measures giving effect to the Convention, inspection results, copies of relevant collective agreements, surveys on employment trends in home work and telework, etc.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 3 and 4 of the Convention. National policy on home work and equality of treatment between homeworkers and other wage earners. The Committee notes the observations of the Netherlands Trade Union Confederation (FNV) which essentially reiterate views expressed in earlier communications. According to the FNV, the position of homeworkers is not as positive as the Government attempts to describe it in its report; whereas higher-educated workers performing telework may well be protected by labour contracts, workers performing low-skilled jobs very often do not enjoy such protection as they are engaged on a task contract and are remunerated on piece-rate or performance‑based. The FNV adds that even when a labour contract exists, many homeworkers do not fulfil the criteria for health, disability and unemployment insurance (i.e. work at least on two days per week, contract at least for 30 days and earnings representing at least 40 per cent of the minimum wage), while many collective agreements specifically exclude homeworkers from their scope. The FNV considers that the number of teleworkers and homeworkers is increasing, and that given such developments in the labour market a specific policy on telework and homework is required, especially for the protection of low-skilled homeworkers.

In addition, the Committee notes the comments of the National Federation of Christian Trade Unions (CNV) according to which the Government has not produced any solid arguments or facts to support its conclusion that the situation of homeworkers does not call for further measures. The CNV accordingly considers that more information is necessary.

Finally, the Committee notes the comments made by the Trade Union Federation for Middle and Higher Level Employees (MHP) which basically draw attention to the problem of enforcement of homeworkers’ rights. Recalling that the Government openly admits that labour inspection services do not actively inspect homeworkers because they are difficult to identify, the MHP maintains that labour law must be so structured as to provide effective protection to homeworkers, who in most cases are not assertive, do not want to draw attention to themselves by starting procedures against their employer, and have become too disengaged from the regular labour market. The MHP also indicates that the situation should be kept under review since the increase in flexible working goes hand in hand with new forms of homeworking, and in this connection the MHP regrets that the Government’s report does not elaborate on the second evaluation of the Flexibility and Security Act which has shown that many people do not dare to take action to assert their rights. The Committee requests the Government to submit any views it may wish to express in response to the observations of the FNV, the CNV and the MHP.

The Committee is raising other matters in a request addressed directly to the Government.

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

Article 1(a) of the Convention. Definition of home work. The Committee notes that, to its knowledge, only section 1.1.5.f of the Working Conditions Decree of 15 January 1997 contains a definition of home work. It also notes that, in its report, the Government does not give a generally applicable definition of home work and confines itself to indicating that homeworkers usually work on the basis of an employment contract, with the existence of such a contract being presumed. The Committee requests the Government to indicate the provisions of the national legislation, in addition to the provision of the Working Conditions Decree referred to above, or the judicial decisions which establish the status of homeworker and the presumption of the existence of a contract of employment.

Article 2. Scope of application. The Committee notes that the Government’s report does not contain information on the application of this provision. It requests the Government to indicate whether the provisions that it has adopted to give effect to the Convention apply to all persons carrying out home work within the meaning of the instrument.

Articles 3 and 5. National policy. The Committee notes with regret that the Government has not provided any information in its report on the existence, implementation and periodic review of a national policy aimed at improving the situation of homeworkers, in consultation with the most representative organizations of employers and workers. The Committee requests the Government to describe in detail its policy in this respect and to indicate the organizations of employers and workers which were consulted on this subject.

Article 4, paragraph 1. Equality of treatment - general rules. The Committee notes that section 5.1 of the Equal Treatment Act of 3 March 1994 prohibits discrimination in a series of fields related to work, but that no provision in this Act provides for the special characteristics of home work to be taken into account. The Committee requests the Government to indicate the measures adopted to ensure that they are taken into account.

Article 4, paragraph 2. Equality of treatment in specific fields. Clause (a). Right to organize. The Committee notes that article 8 of the Constitution recognizes in general terms the right to organize, while also providing that the law may restrict this right in the interest of public order. It requests the Government to provide indications on the specific measures which ensure the protection of this right in the particular context of home work.

Clause (b). Protection against discrimination in employment and occupation. The Committee notes that, in accordance with section 5 of the Equal Treatment Act, referred to above, discrimination is prohibited in relation to the various aspects of the work relationship. However, it notes that this Act does not specifically provide for equality between homeworkers and other wage earners in relation to protection against such forms of discrimination. The Committee requests the Government to indicate the measures taken to ensure such equality in protection against discrimination.

Clause (c) and Article 7. Protection in the field of occupational safety and health. The Committee notes that the Working Conditions Act, 1998, does not exclude homeworkers from its scope of application. However, it notes that, under the terms of section 1.43 of the Working Conditions Decree of 15 January 1997, the latter is not applicable to work carried out at home, unless explicitly provided to the contrary. While recognizing that the exclusion of the application of certain provisions is understandable in view of the very nature of home work, the Committee requests the Government to indicate the reasons why it was not considered appropriate to apply other provisions of the Decree, such as those relating to noise, the organization of the workplace and radiation, to homeworkers. The Committee also requests the Government to indicate the reasons why the provisions applicable to homeworkers in relation to hazardous substances (sections 4.110 to 4.115) are much less detailed than those relating to other workers (sections 4.1 to 4.102). Furthermore, the Committee requests the Government to indicate the types of work which, for reasons of safety and health, are prohibited in home work, as prescribed in Article 7 of the Convention.

Clause (d). Remuneration. The Committee notes that the Minimum Wage and Minimum Holiday Allowance Act, of 27 November 1968, does not exclude homeworkers from its scope of application. However, it notes that, according to the information provided by the Government in its report, under the terms of the Decree of 2 September 1996 (not available to the Office), the above Act is only applicable to them under certain conditions (work for a minimum of five hours a week, etc.). The Committee requests the Government to provide a copy of this Decree. Furthermore, the Committee notes that the Government only refers in its report to the legislation on the minimum wage and does not specify the manner in which equality of treatment between homeworkers and other wage earners is secured in respect of remuneration in the broad sense. The Committee requests the Government to provide additional information on this subject.

Clause (d). Protection by statutory social security schemes. The Committee notes with regret that the Government does not provide any information in its report on equality of treatment in relation to protection by statutory social security schemes. It requests the Government to provide any relevant information on the application of this provision of the Convention.

Clause (f). Access to training. The Committee notes that section 5.1 of the Equal Treatment Act prohibits discrimination in relation, among other matters, to the possibility to follow education, apprenticeship or training during or prior to the beginning of the work relationship. However, it notes that the Government does not provide any information in its report on specific measures to secure equality of treatment between homeworkers and other wage earners in this field. The Committee requests the Government to provide any relevant information on the application of this provision of the Convention.

Clause (h). Maternity protection. The Committee notes that Chapter 3 of the Work and Welfare Act of 16 November 1991, contains provisions respecting maternity. It also notes that section 1 (maternity leave) only applies to women workers within the meaning of section 1.1.b of the Act, whereas section 2 establishes the right to maternity allowances for women workers (section 3.7), as well as for "assimilated persons" (3.8.1). The Committee further notes that "assimilated persons" are defined in section 3.6 as those who are not considered to be workers within the meaning of section 1.1.b of the Act, but who are within the meaning of section 1(2) of the Act of 5 June 1913 on workers’ health insurance (hereinafter, the Health Insurance Act). The Committee also notes that this section of the Health Insurance Act defines in section 3.1 the term "worker" as a physical person under 65 years of age who is engaged in a private or public law employment relationship. Finally, the Committee notes that under section 5.1 of the Health Insurance Act, regulations may provide that the work relationship of a homeworker shall be considered to be an employment relationship for this purpose. The Committee observes, from a reading of these provisions, that homeworkers are not automatically considered to be "assimilated persons", who benefit from the right to maternity benefits, as this requires the adoption of regulations. The Committee requests the Government to indicate whether such regulations have been adopted and, if so, to provide a copy. Furthermore, the Committee notes that, in any case, "assimilated persons" are only entitled to benefits and not to maternity leave. It requests the Government to provide additional information on the reasons for this exclusion. Finally, the Committee recalls that maternity protection measures are not confined to leave and financial benefits, but also include the protection of the health of the mother and child, medical care, transfer to more appropriate work where necessary, protection against dismissal and nursing breaks. The Committee requests the Government to indicate the measures adopted to secure equality of treatment between homeworkers and other wage earners in these various fields.

Article 6. Statistics. The Committee notes that, according to the information provided by the Government in its report, Statistics Netherlands (CSB) was due to undertake a survey in 2004 on how to take into account home work in the questions contained in the labour force survey, and that the first data could be available in 2006. It notes that the Government also refers to a survey published in 1998 by the labour inspectorate according to which the number of homeworkers in the industrial sector is in sharp decline. The labour inspectorate is also reported to have concluded that there is only a small safety risk for homeworkers, who usually work without machines. The Committee requests the Government to provide a copy of this survey and to supply as soon as possible the results of the latest labour force survey, with the data disaggregated by sex. The Committee also notes that the Government refers to a private study (Ernst & Young ICT Barometer 2004), according to which there is an increase in the number of employees working at home in the information and communication technology (ICT) sector, often for only part of their working time and mainly in enterprises with fewer than 20 employees. The Committee requests the Government to provide a copy of this study.

Article 8. Intermediaries. The Committee requests the Government to indicate whether the use of intermediaries in home work is permitted and, if so, to provide copies of the provisions determining the respective responsibilities of employers and intermediaries in this context.

Part V of the report form. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice and to indicate how the application of legal provisions is enforced in the context of home work, where they are by definition more difficult to supervise. The Government is also requested to provide extracts from inspection reports and, if possible, information on the number and nature of infringements reported.

Finally, the Committee requests the Government to provide copies of certain documents referred to in the comments made by the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation of Middle and Higher Level Employees (MHP): the opinion of the Economic and Social Council of 2004 on the coverage of the social security legislation and self-employed workers; the Explanatory Note prepared by the Government with a view to the examination by Parliament of the Bill for the ratification of the Convention in 2001; and the recommendation of the Economic and Social Council on telecommuting.

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

The Committee notes with interest the Government’s first report, even though it does not contain information on the application of all the provisions of the Convention. The Committee also notes the comments of the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation of Middle and Higher Level Employees (MHP), summarized below.

In general terms, the FNV considers that there is no national policy relating to home work and that, contrary to the expressed intentions of the Government, the social partners have not been invited to discuss the situation of homeworkers. The trade union organization also maintains that most of these workers are not covered by a contract of employment, despite the adoption of the Flexibility and Security Act, 1999, because they have not been informed and do not dare to claim. Furthermore, according to the FNV, employers and intermediaries prefer not to engage these workers under a contract of employment for cost reasons and the labour inspectorate does not consider home work to be a priority. Only those who work for only part of their working time at home tend to benefit from a contract of employment and, even in these cases, equality of protection only exists in the legislation. The FNV adds that most homeworkers are not covered by social security since, according to the legislation, those who are not engaged under a contract of employment have to earn at least 40 per cent of the statutory minimum wage to qualify for coverage. Most intermediaries endeavour to keep homeworkers under this threshold. Moreover, such work is generally paid on a piecework basis, so that they have to work practically full time to earn the minimum prescribed. Finally, the FNV indicates that, during the examination of the draft legislation for the ratification of the Convention, it specifically drew attention to the role of intermediaries and that, contrary to its affirmations, the Government has not examined the situation in cooperation with the social partners.

In its comments, the CNV emphasizes that the opinion of the Economic and Social Council on the coverage of social legislation and self-employed workers, the publication of which in the near future is announced by the Government in its report, has since been issued and does not affect the situation of homeworkers. The MHP wonders why the Government’s report does not also refer to the recommendation of the Economic and Social Council on telecommuting, which transposes the European framework agreement on this subject.

The Committee requests the Government to reply in detail to these comments.

The Committee is also addressing a request directly to the Government on other matters.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes with interest the Government’s first report, received in September 2004. It also notes the comments supplied by the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation for Middle and Higher Level Employees (MHP). The Committee will examine the Government’s report and the comments of the organizations in detail at its next session and welcomes any additional information that the Government may wish to provide.