Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121) - Netherlands (Ratification: 1966)

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.

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

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 and requests the Government to provide its reply to them

Article 14 of the Convention. Minimum degree of loss of earning capacity. The Committee previously observed that a minimum degree of 35 per cent incapacity for the entitlement to the cash benefits under the Work and Income (Employment Capacity) Act of 2006 (WIA) was set too high to comply with Article 14. The Committee notes the indication by the Government in its report that the minimum degree of 35 per cent incapacity was set in an agreement with the trade unions and the employers’ organizations. The Government further indicates that according to the financial assessments, the reduction of the minimum degree would lead to higher costs and entail major adjustments of the scheme which requires a complex and thorough analysis.

The Committee notes the observations of the CNV, the FNV, and the VCP indicating that: (1) for many years, they have been proposing that the minimum degree of incapacity should be lowered from 35 per cent to 15 per cent; (2) contrary to the original purpose of the WIA according to which persons with less than 35 per cent of incapacity were supposed to stay on the labour market, it appears in practice that the loss of 35 per cent capacity for work or less often constitutes an obstacle for employers to keep such workers; and (3) a substantial group of people fall outside the income protection provided under the WIA requiring the minimum degree of 35 per cent incapacity.

The Committee recalls that according to Article 14 of the Convention, the degree of loss of earning capacity for which cash benefits become payable shall be prescribed in such a manner as to avoid hardship. The Committee further recalls that according to Article 14 of the Convention, cash benefits in excess of such minimum degree may take the form of periodical payments or lump-sum payments if partial loss of earning capacity is not substantial. In this respect, the Committee previously observed that incapacity below 25 per cent could be regarded as not substantial and compensated by lump-sum payments, in line with Paragraph 10 of the Employment Injury Benefits Recommendation, 1964 (No. 121). The Committee also pointed out to the fact that, depending on the existence of other complementary income guarantees, lump-sum compensation had been considered by the Committee to be in compliance with the Convention in certain cases for incapacity up to 35 per cent. However, the WIA provides for neither periodic cash benefits, nor lump-sum payments in case of incapacity below 35 per cent.

While taking due note of the explanations provided by the Government, the Committee recalls its earlier position and analysis and is still of the opinion that the minimum degree of 35 per cent incapacity for the entitlement to cash benefits is not in compliance with the provisions of Article 14 of the Convention. The Committee urges the Government, without further delay, to take the necessary measures in full consultation with the most representative trade union and employers’ organizations to bring the national legislation in line with Article 14 of the Convention by ensuring that persons with incapacity below 35 per cent are entitled to cash benefits in case of employment injury, and to report on the measures taken for that purpose.

Article 14(2), in conjunction with Articles 6(c) and 22(1). Total loss of earning capacity likely to be permanent. The Committee previously observed that a person who is completely (at least 80 per cent) and permanently incapable for work shall be entitled to the benefits under the Income Provision for Persons with Full Occupational Disability Scheme (IVA benefits), as per section 47 of the WIA. The IVA benefit amounts for 75 per cent of the previous monthly wage but it is subject to reduction if a beneficiary earns an income (sections 51-52 of the WIA). In this respect, the Committee observes that the Convention does not authorize any reduction of cash benefits in case a fully incapacitated person earns additional income from any gainful occupation, leaving him or her free to combine invalidity benefit with work. The Committee recalls that according to Article 6(c) of the Convention, the definition of the contingency of total or partial loss of earning capacity likely to be permanent does not include actual suspension of earnings in comparison with, for example, the definition of temporary incapacity for work, as per Article 6(b) of the Convention. The Committee further recalls that the provisions of the WIA allowing the reduction of the IVA benefit in case a beneficiary earns income from a gainful occupation go beyond the requirements of Article 22(1) of the Convention which limits the grounds for suspension of benefits. The Committee requests once again the Government to take the necessary measures, without further delay, to ensure that the IVA benefit is not subject to reduction when a beneficiary earns income from any gainful occupation, in line with Articles 14(2) and 22(1) of the Convention.

Article 14(3), in conjunction with Article 9. Substantial partial loss of earning capacity likely to be permanent. (i) Entitlement conditions for the WGA wage-related benefit. The Committee previously noted that to be entitled to the benefits under the Resumption of Work for Persons with Partial Disability Scheme, WGA (WGA wage-related benefit), a person with incapacity for work of between 35–80 per cent was obligated to register as a jobseeker, make sufficient attempts to obtain suitable work, and accept an offer of such work (section 30 of the WIA). The entitlement to the WGA wage-related benefit depends on the insured being also entitled to unemployment benefit (section 58 of the WIA). Those not eligible for unemployment benefit can get the WGA wage supplement benefit or the WGA follow-up benefit (section 54(4) of the WIA).

The Committee recalls once again that subjecting the entitlement to the benefit to an obligation to make use of the remaining earning capacity is not foreseen by the Convention (Articles 9 and 14(3)). The Committee therefore considers that under the conditions prescribed by section 30 of the WIA, the WGA wage-related benefit is not in conformity with the requirements set out in the above-mentioned Articles of the Convention. Considering that the WGA wage-related benefit shall not be subject to the conditions set out by section 30 of the WIA to be considered for the purpose of the application of the Convention, the Committee requests the Government to take the necessary measures to ensure the compliance of the entitlement conditions for the WGA wage-related benefit with Articles 9 and 14(3) of the Convention.

(ii) Qualifying period for the entitlement to theWGA wage-related benefit. The Committee notes that the entitlement to the WGA wage-related benefit is subject to the qualifying period of employment for at least one working hour per calendar week in at least 26 calendar weeks (section 58 of the WIA). In this respect, the Committee recalls that under Article 9(2) of the Convention, eligibility for benefits may not be made subject to the length of employment, to the duration of insurance or to the payment of contributions. The Committee requests the Government to take the necessary measures to ensure that the entitlement to the WGA wage-related benefit is not subject to a requirement of completion of certain length of employment or the duration of insurance, in line with Article 9(2) of the Convention.

(iii) Duration of the WGA wage-related benefit. The Committee notes that the WGA wage-related benefit is paid for at least three months and at most 24 months (section 59 of the WIA). It further observes that the duration of the WGA wage-related benefit is subject to the length of the previous employment period. In particular, one month of the payment of benefit is equaled to one calendar year of employment (section 59 of the WIA). In this respect, the Committee recalls that the Convention does not permit the benefit to be affected by the length of employment and requires that the benefit is granted throughout the contingency (Article 9(2) and (3)). The Committee therefore considers that the WGA wage-related benefit may only be taken into account for the purpose of the application of the Convention in its minimum duration of three months. The Committee thus requests the Government to take the necessary measures to ensure the compliance of the duration of the WGA wage-related benefit with Article 9(2) and (3) of the Convention, should the Government wish to consider the WGA wage-related benefit beyond its minimum duration for the purpose of the application of the Convention.

Article 14(3), in conjunction with Article 9. Substantial partial loss of earning capacity likely to be permanent. Entitlement to the WGA wage supplement benefit. The Committee previously noted that the WGA wage supplement benefit was provided after the payment of the WGA wage-related benefit, or in case a person was not entitled to the WGA wage-related benefit (section 60 of the WIA). The Committee further observed that the WGA wage supplement benefit was subject to the income requirement that a person partially capable of work must earn per calendar month an income from work which is at least equal to 50 per cent of his or her remaining earning capacity (section 60 of the WIA). The Committee recalls once again that the requirement to use the residual earning capacity as a condition for entitlement is not in conformity with the Convention, which guarantees entitlement to benefits at the prescribed level without regard to the residual earning capacity and additional income which could be earned by the workers with partial incapacity (Articles 9 and 14(3)). The Committee thus requests the Government to take the necessary measures to ensure the compliance of the entitlement conditions of the WGA wage supplement benefit with Articles 9 and 14(3) of the Convention, should the Government wish to consider the WGA wage supplement benefit for the purpose of the application of the Convention.

Article 14(3), in conjunction with Article 19. Level of the WGA follow-up benefit. The Committee previously observed that the WGA follow-up benefit was a flat rate benefit calculated on the basis of the legal minimum wage and not as a percentage of the beneficiary’s previous wage. The Committee, however, recalls that according to Article 14(3) of the Convention, the benefit for partial incapacity shall represent a suitable proportion of the benefit for total incapacity the level of which shall be at least of 60 per cent of the standard’s beneficiary earnings (Article 19 and Schedule II). The Committee notes that the IVA benefit which is provided in case of total incapacity is determined as 75 per cent of the previous monthly wage (section 51 of the WIA). The Committee therefore considers that the WGA follow-up benefit does not represent a suitable proportion of the IVA benefit, particularly as regards persons with income above the legal minimum wage. The Committee requests the Government to take the necessary measures, without further delay, to ensure that the level of the WGA follow-up benefit is in line with the requirements of Articles 14(3) and 19 of the Convention.

Based on the above, the Committee notes with deepconcern that the cash benefits provided under the Work and Income (Employment Capacity) Act of 2006 (WIA) do not ensure the level of protection set out in the Convention on a range of issues and that, despite its comments on the non-compliance of the provisions of the WIA since 2007, no change has been made to the national legislation to bring it in line with the requirements of the Convention. The Committee reminds the Government of the possibility to avail itself of ILO technical assistance in this regard.

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

[The Government is asked to reply in full to the present comments in 2025.]

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.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the Government’s detailed report received on 29 August 2011, which contains a reply to the Committee’s previous observation concerning the compatibility with the Convention of the main aspects of the Work and Income (Employment Capacity) Act of 2006 (WIA). It also notes the comments on the report, dated 31 August 2011, submitted by the Netherlands Trade Union Confederation (FNV) and the National Federation of Christian Trade Unions (CNV), to which the Government replied in a letter of 18 October 2011. The Committee further notes that various meetings were held between the Dutch Government and senior officials of the Office concerning ongoing compliance issues involving the WIA.

The Committee would like to thank the Dutch Government for the additional efforts it undertook to clarify its position and legislation, as well as to maintain the social dialogue with the trade unions, which provided the Committee with in depth information on the application of the Convention both in law and in practice. The Committee recalls that its previous observation was entirely directed to an analysis of the WIA, including WIA coverage of the contingency of total or partial loss of earning capacity likely to be permanent, as defined in Article 6(c) of the Convention. As indicated in its previous observation, the Committee has decided to examine in its present comments the protection accorded by other Dutch implementing legislation, specifically legislation addressing the contingency of a morbid condition due to an employment injury (Article 6(a) of the Convention), which is provided by the health insurance scheme. For that purpose, the Committee has taken note also of the information contained in the Government’s detailed report on the Medical Care and Sickness Benefits Convention, 1969 (No. 130), both of which were ratified by the Government in view of the linkages between these two Conventions, and of the dialogue it has with the abovementioned trade union organizations. The Committee will examine at its next sessions the protection offered by the Dutch legislation against the contingency of temporary or initial incapacity for work (Article 6(b) of Convention No. 121), which is provided by the mixed private/public system based on employers’ civil liability to maintain wages during the first two years of sickness underpinned by the public safety net established by the Sickness Benefit Act (ZW), as well as the contingency of loss of support due to the death of the breadwinner (Article 6(d)) covered by the General Surviving Relatives Act (ANW).

Articles 7 and 8 of the Convention in conjunction with Article 26. Definition of industrial accident and occupational disease. With respect to these provisions of the Convention, the Government limits itself to stating that there is no special scheme concerning industrial accidents or occupational diseases and employees are compensated regardless of the cause of the disability. The Committee requests the Government to indicate whether the national labour or occupational safety and health legislation contains definitions of industrial accident and occupational disease, as well as a list of such diseases, established for the purpose of reporting and monitoring industrial accidents and occupational diseases. The Committee also requests that the Government provide information on accident and disease investigations by the labour inspectorate on the imposition of appropriate sanctions, and on the elaboration of measures for preventing industrial hazards, developing occupational health services, and determining employer liability for damages to workers’ health. Please indicate whether the Netherlands collects statistical data on the frequency and severity of industrial accidents and, if so, supply this data with the Government’s next report.

Medical care and allied benefits

The Committee notes that the Netherlands health insurance system has undergone a radical reform after the entry into force on 1 January 2006 of the Health Insurance Act, under which health insurance was fully privatized. The Committee requests the Government to explain whether there remain any type of public health services or medical institutions in the area of occupational health and rehabilitation and, if so, whether health-care insurers are encouraged to use these services and institutions for the treatment of employment injuries.

Articles 4 and 9. Coverage by the health insurance scheme and conditions of entitlement to benefits. The Committee notes that, in its comments under Convention No. 130, the FNV states that the Health Insurance Act is not a general public scheme in the sense that all citizens are compulsory insured, but a private insurance scheme under which all citizens are obliged to take out health-care insurance from private companies. The FNV further states that, given the private nature of the scheme, the Government cannot guarantee that all employees are protected and that in 2011 at least 150 000 persons of all classes and ages are not insured.

In reply, the Government’s report on Convention No. 130 states that, while full coverage is not guaranteed, the essential factor is that there is a governmental measure that offers the protection desired. Whether the persons to be protected wish to accept such protection or not is up to them, but if they do not conclude a health insurance contract, they may end up being unable to pay the costs of the required care in case of serious illness or accident. In general, this outcome is not acceptable and the Government acts to urge such persons to take out health insurance. Furthermore, if, having concluded an insurance contract, a person for some reason does not pay the normal insurance premiums, the care insurer is entitled to terminate the health insurance. “After all”, says the Government’s report, “it is an agreement under private law”. This situation too can lead to highly undesirable consequences if the insured person ends up needing care, and the Government reports that it is being taken care of through additional legislative measures.

With regard to the evasion of concluding health insurance contracts, the Government indicates in its report on Convention No. 121 that a new law took effect on 15 March 2011 designed to identify uninsured persons by means of database comparisons and obliging them to take out health-care insurance under the threat of two successive penalties equal to three times the standard premium. After two penalties have been imposed, the Health Insurance Board will take out insurance on behalf of anyone who is still uninsured, summoning this person to pay an administrative premium for 12 months, which, where possible, will be withheld at source. With the introduction of this measure the Government can guarantee that all persons legally residing in the Netherlands are protected. With respect to the evasion of paying health insurance premiums, the Government indicates that, starting on 1 September 2009, measures have been taken to reduce the number of people who do not pay premiums on time or do not pay at all. According to the Health Insurance Act, when the insured person is in arrears for an amount equivalent to six months’ premiums, the obligation to pay the nominal premium to the care insurer is converted to an obligation to pay the Health Insurance Board an administrative premium equal to 130 per cent of the standard premium. The Board imposes this levy on the defaulter, bears responsibility for its collection and pays a compensation for the loss of premium to the care insurer.

The Committee notes the measures taken by the Government to ensure coverage of persons who would otherwise be left unprotected by the private health insurance scheme functioning with a view to profit. It requests the Government to indicate how many employees were found by the Health Insurance Board to lack health insurance coverage and whether the employer has any obligation to check that its employees have the proper health insurance coverage. The Committee further notes that all the measures to improve coverage are based on the imposition of substantial fines on those persons whom the Convention seeks to protect automatically and free of charge. The Committee points out that if, for example, a partially disabled employee has no money to pay health insurance premiums, imposing additional fines on that person would only aggravate the situation of hardship, which the Convention prescribes the Government to avoid. The Committee wishes the Government to explain in this respect to what extent the improvement of coverage has been achieved through the social assistance mechanism established by the Health Care Allowance Act (Wet op de zorgtoeslag), under which persons for whom the nominal premium is too high in relation to their income may receive an allowance paid by the tax authorities.

With respect to the right of private insurance companies under private law to desist themselves from the obligation to provide care in case of non-payment of premiums, the Committee points out that, according to the Convention, the national legislation concerning employment injury benefits shall protect all employees and ensure that benefits are provided without any supplementary conditions not mentioned in the Convention. Article 9 of the Convention guarantees eligibility for benefits on the basis of the employment relation alone and forbids subjecting eligibility to the payment of insurance contributions or premiums. In the Netherlands’ case, this would mean that employees suffering employment injury shall be given prescribed medical care and allied benefits even in the absence of a duly concluded individual health insurance contract or the required premium payment. The Government is invited to explain how and by virtue of which provisions of the national legislation the necessary emergency and follow-up medical treatment are provided to an employed person who at the moment of an industrial accident or manifestation of an occupational disease did not possess a health insurance contract or whose contract was terminated due to non-payment of premiums.

Article 10(1). Types of care to be provided. The Government report states that all persons legally residing in the Netherlands, or non-residents who work and pay income tax in the Netherlands, are obliged to take out health-care insurance under the Health Insurance Act and the Exceptional Medical Expenses Act and that they then become entitled to benefits in kind or to reimbursement of the costs of the medical care they receive. The types of benefits to be covered by the insurance package are statutorily defined under the two Acts and are provided irrespective of the cause for the need of care. The Committee would like the Government to explain under which legal provisions and practical arrangements emergency and follow-up treatment in case of employment accident stipulated in Article 10(1)(g) would be provided free of charge at the place of work. Please also indicate under which provisions of the Health Insurance Act care provided by general practitioners and specialists includes domiciliary visiting, as stipulated in Article 10(1)(a) of the Convention.

The report states that dental care for insured persons aged 18 and over is limited to specialized surgical dentistry (oral surgery), the associated X-rays, and dentures. People with an exceptional dental disorder, physical/mental disability or special dental problems resulting from medical treatment are entitled to complete dental care (subject to special conditions). The Committee recalls that Article 10(1)(b) and (e) of the Convention requires provision free of charge of complete dental care, not limited to surgery and including fillings, root-canal treatment, extractions, dental supplies, etc., in case such care is necessary as a result of occupational accident or disease. Please state what additional measures are foreseen under the Dutch health insurance scheme to provide such care to victims of employment injuries.

Article 10(2). Effectiveness of medical care. The Government states in its report on Convention No. 130 that the care system in the Netherlands has been organized in a way that will reduce direct government involvement. This is achieved through the “functional description” of care covered by the insurance package. The Government lays down legal requirements only for the content and extent of coverage and the medical indications that trigger coverage. It is the responsibility of the care provider to decide who provides the care and where. According to the Government, the choice for having private insurance that assigns greater responsibilities to insurers who are allowed to make a profit makes it inappropriate for the Government to supervise the effectiveness of the way health insurance is operated. Therefore, the Government continues, the main objective in overseeing lawful performance of health insurance is for the Government to ascertain whether the care insurer is fulfilling its obligation to provide insured persons with the services they are entitled to under the Health Insurance Act.

The Committee points out that such limited supervision of the quality and effectiveness of the medical care provided by private insurers seeking to make a profit, and therefore perhaps interested in reducing the volume and cost of care, might not be sufficient in view of the obligation imposed on the Government by Article 10(2) of the Convention to ensure that the medical care afforded to employment injury victims conforms to the highest practicable standard, using all suitable means. The Committee therefore asks the Government to explain what procedures exist to include among reimbursable care new technologically advanced treatments, which might help to restore health in particularly serious cases and whether there exist medical centres specializing in treatment of industrial accidents and occupational diseases that possess state-of-the-art knowledge in this area. Please indicate whether the Health Care Inspectorate (IGZ) which is entrusted with overseeing the quality of public health, or the occupational health services, possess any system of indicators measuring effectiveness of medical and professional rehabilitation of employment injury victims.

Article 11(1). Participation in the cost of medical care. In its previous observation, the Committee asked the Government to examine whether persons in need of prolonged care or particularly expensive treatment may find themselves in a situation of hardship in view of the fact that victims of employment injuries are required to share costs for certain types of medical care, and are subject to limitations in duration and number of treatments. In this respect the Committee notes from the Government’s reports on Conventions Nos 121 and 130 that victims of employment injuries are subjected to the same limitations on the quantity of care as other persons insured under the Health Insurance Act. Types of care typically offered by medical specialists may be excluded by the insurance companies from reimbursement; physiotherapy and remedial therapy are confined to the treatment of chronic disorders, excluding the first 12 treatments for each disorder; occupational therapy, which is particularly important in case of employment injuries, is provided up to a maximum of ten treatment hours per year; dental care is limited to specialized oral surgery, the associated X-rays and dentures. The cost of treatment in excess of these limitations would have to be assumed by the persons concerned, who are also required to pay fixed contribution amounts to the cost of various types of medical care included in the basic health insurance package up to a maximum of €170 per year for 2011 (so called “compulsory deductible”). Persons who incur structural care expenses due to chronic illness or disability receive financial compensation so that they do not pay more in terms of compulsory deductible than an average insured person who receives no compensation. For most types of care under the Exceptional Medical Expenses Act, a personal contribution is also required, the amount of which depends on the taxable income, age, marital status and the living situation of the person concerned. In 2011, the cost sharing in case of residential care in an institution amounted to a maximum of €764.40 per month during the first six months of stay and to a maximum of €2,097.40 per month thereafter. As of 1 January 2009, the Chronically Ill and Disabled Persons (Allowances) Act (Wtcg) has introduced a number of measures to offset extra care expenses incurred by these categories of persons. The Government emphasizes that these measures together with the establishment of the maximum for the compulsory deductible are taken to ensure that cost sharing does not involve hardship for insured persons.

The Committee observes that the rules on cost sharing and limitations of certain types of medical care laid down in the Dutch legislation are designed for the general population and do not take into account the special needs and the financial situation of the persons suffering employment injuries, particularly those requiring prolonged and expensive care. The Committee further notes, from the Government’s report on Convention No. 102, that in order to receive a discount on the insurance premium, persons with good health as a rule choose a health insurance policy with a high level of personal contribution to the cost of care (personal excess). At the meetings with ILO officials referred to above, the Government confirmed that the present cost-sharing requirements and limitations in duration and number of treatments paid by the insurance did not exclude the possibility of some employment injury victims finding themselves in a situation of hardship and compelled to refuse further necessary treatment due to lack of money. Situations where victims of employment injuries are compelled to stop medical treatment because of the inability to pay for it would contradict the very purpose of the Convention, which makes the Government responsible for the due provision of medical and allied benefits with a view to maintaining, restoring or improving the health of the injured person (Articles 10(2) and 25 of the Convention). The Committee would therefore ask the Government to conduct a thorough study of the existing limitations and cost-sharing arrangements with respect to the statutory medical benefits, so as to identify and prevent possible situations of hardship that may affect the standard beneficiary (man with wife and two children) who has fallen victim of a serious employment accident or a chronic occupational disease. The Committee notes in this respect that insurance covering the costs of the medically necessary transport of patients includes a hardship clause, which provides for reimbursement of additional transport costs encountered by persons following a prolonged treatment. The Committee would ask the Government to consider incorporating similar hardship clauses into the insurance rules covering other types of costly medical care and allied benefits, which may be identified by the study mentioned above.

Article 24. Participative management of the health insurance scheme. The Committee notes that in the Netherlands the administration of health insurance is not entrusted to an institution regulated by the public authorities, but is entirely in the hands of private insurance companies which run it for profit. For such schemes Article 24(1) of the Convention requires the national legislation to prescribe conditions for the participation of the representatives of the persons protected in the management of the scheme. To promote its management on a tripartite basis, the legislation may provide for the participation of representatives of employers and of the public authorities. The Convention also requires the Government to accept general responsibility for the proper administration of the health insurance institutions and providers of medical services. With respect to the application of these provisions of the Convention, the Government’s 2011 report indicates no changes and refers to the previous reports, whereas the previous report of 2009 simply states that Article 24 is not applicable. In its report on Convention No. 130 under Article 31, which contains similar provisions concerning the participative management of the health insurance schemes, the Government states that the basic principle of health insurance in the Netherlands is that insured persons must be able to exert influence on the policy of the company that insures them. A care insurer’s articles of association must ensure that insured persons possess a reasonable degree of influence over the company’s policy. The Committee wishes to point out in this respect that reliance on the private care insurer’s articles of association is not sufficient to give effect to these provisions of the Convention, which require the right of the persons protected to be able to influence the company’s policy through participation of their representatives in the company’s management as directed under national law. The Committee also points out that Article 24 of Convention No. 121 remains fully applicable to the Netherlands. Moreover, the Government carries the general responsibility for ensuring that the national health insurance scheme is managed in a democratic and transparent manner with the proper participation of the trade unions and other organizations representing the persons protected together with the professional associations representing care providers and the medical profession. The Committee therefore asks the Government to supply full information in its next report on the application of Article 24 of the Convention in Dutch law and in practice.

The Work and Income (Employment Capacity) Act of 2006 (WIA)

In its previous observation, the Committee had concluded that the WIA was incompatible with Convention No. 121 on the following points:

• – that the WIA leaves victims of employment injuries with incapacity up to 35 per cent without any form of compensatory benefit, contrary to Article 14(4) of the Convention;
• – that the Income Provision Scheme for Fully Occupationally Disabled Persons (IVA) permits the benefit to be reduced by 70 per cent of the income earned by the beneficiary from employment or self-employment, whereas the Convention does not authorize any reduction of the benefit in case a fully incapacitated person finds the force to earn additional income from any gainful occupation, permitting him to combine disability benefit with income from work;
• – that under the Return to Work Scheme for the Partially Disabled (WGA) the qualification requirements for entitlement to the wage-related WGA benefit and to the wage supplement impose restrictive conditions that are contrary to the Convention;
• – that the nature and the extent of the obligations and sanctions in case of non compliance, to which the WIA subjects the recipients of the follow-up WGA benefit, go beyond limitations permissible under Article 22 of the Convention and should be reviewed;
• – that the disproportionately low level of the follow-up WGA benefit might result, contrary to the objective of Article 14(5) of the Convention, in hardship for many partially disabled persons, obliging them to apply for social assistance in case they do not find sufficiently paid employment.

The Committee has examined the Government’s report on the Convention and its reply on the legal inconsistencies mentioned above in the context of the Government’s stated objective to reduce by all means the number of claimants of disability benefits and the Committee has taken due note of the explanations provided by government officials during the consultations with the Office, which have permitted clarification of certain technical questions.

The Committee nevertheless decides that there are no new elements that would cause it to change its previous conclusions on the WIA. It notes, however, that the Government has disagreed with these conclusions and has challenged the Committee’s understanding of the content of related provisions of the Convention. In particular, the Government has considered that, although Convention No. 121 refrains from explicitly mentioning the possibility of imposing sanctions on an occupationally disabled person who fails to cooperate with his/her reintegration, the provisions of a Convention must not be interpreted statically, but in line with social developments; it is thereby appropriate to impose sanctions if the person concerned fails to cooperate with his/her reintegration.

The Committee also notes that the comments submitted by the trade union organizations contest the arguments advanced by the Government, and describe the worsening employment and income situation of disabled workers as calling into question the effectiveness of the WIA and of the overall government policy concerning the invalidity benefit scheme.

The Committee observes that responding in full to the Government’s position would require lengthy explanations of the scope and purpose of different provisions of the Convention in the context of the evolution of international social security law, and this would run into scores of pages, well beyond what can be reasonably accomplished during a single session of the Committee. The Committee further observes that certain questions raised by the trade unions in their disagreements with the Government take the discussion into policy areas and consideration of alternative solutions, well beyond the legal framework of the Convention. In this situation, the Committee invites the Office to make contact with the Government in order to find the most suitable way of providing it with the necessary background information on the contested provisions of the Convention and thereafter identify the remaining issues on which the Government would then still like to solicit the explanations of the Committee. The Committee would like to be informed of these issues sufficiently in advance to be able to respond to them at its next session in November–December 2012, but in any case not later than 1 September 2012.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s reply dated 23 February 2009 to the direct request of 2007 and the detailed report on the application of the Convention received in October 2009. It also notes the observations of the Netherlands Trade Union Confederation (FNV) supplied in October 2008, August 2009 and August 2010, where it maintained that the new Dutch legislation on employment injury benefits, the Work and Income (Employment Capacity) Act of 2006 (WIA), is not compatible with the Convention. In light of the trade union’s observations, the Committee has decided to limit the present comments to the examination of the main aspects of the WIA. The Committee will consider changes in other implementing legislation on the occasion of the Government’s next detailed report on the application of the Convention, which is due in 2011.

The Committee recalls that, since the adoption of the Disablement Benefits Act (WAO) in 1967, in the Dutch social security system the employment injury insurance scheme was merged with the general invalidity scheme and ceased to exist as a separate branch. Since 1 January 2006, the WAO has been replaced by the WIA, which establishes social security benefits for total and partial incapacity for work. As was true for the WAO, the WIA does not distinguish between employment injuries and general invalidity and covers both risks. This design of disability benefits in principle is compatible with the Convention, which does not prevent the possibility of covering the risks of employment injury through compensatory benefits provided by other branches of social security (medical care, sickness benefit, invalidity benefit and survivors’ benefit). However, these compensatory benefits should then satisfy the more stringent requirements of the Convention as regards provision of the employment injury benefits for the contingencies covered by the Convention. In this respect, the Committee notes the following developments and would like to draw attention to the following questions.

According to Article 6 of the Convention, employment injury may result in the following covered contingencies, which are covered by different branches of the Dutch social security system:

(a).. A morbid condition covered by the medical care and allied benefits (Article 11), which in the Dutch system are provided by the health care branch.

(b).. Temporary or initial incapacity for work covered by cash benefit (Article 13), which in the Dutch system is provided by the mixed private/public system based on employers’ civil liability to maintain wages during the first two years of sickness underpinned by the public safety net established by the Sickness Benefit Act (ZW).

(c).. Total or partial loss of earning capacity likely to be permanent or corresponding loss of faculty compensated by cash benefits (Article 14), which in the Netherlands are provided by the mixed public/private system under the WIA and the PEMBA Act, 1998, which empowers employers to assume the risk themselves for five years or to have recourse to private insurance.

(d).. The loss of support due to death of the breadwinner covered by cash benefits (Article 18), which in the Netherlands are provided under the General Surviving Relatives Act (ANW).

The Committee requests the Government to give particular attention in its forthcoming detailed report to examining the extent to which the Dutch legislation, especially following the privatization of the health-care branch and the sickness benefit, continues to ensure protection against contingencies (a), (b) and (d) on conditions and at the level required by the Convention. In view of the fact that, as indicated in the Government’s report, victims of employment injuries are required to share costs for certain types of medical care, and are subject to limitations in duration and number of treatments, the Committee asks the Government to examine whether victims of employment injuries in need of prolonged care or particularly expensive treatment find themselves in a situation of hardship.

Within the above continuum of benefits ensured by the Convention, the Committee understands that the WIA provides the following benefits in case of loss of earning capacity:

–           Under Income Provision Scheme for Fully Occupationally Disabled Persons (IVA) benefit for full and permanent incapacity until pension age at the rate of 70 per cent of the monthly wage (Chapter 6).

–           WGA benefit for fully but not permanently disabled.

–           WGA wage-related benefit for employees who are partially capable of working, 70 per cent of the (maximum) daily wage plus wage supplement for those working, paid for up to five years depending on employment history.

–           WGA wage supplement benefit for those performing sufficient paid work.

–           WGA follow-up flat rate benefit at the rate of 70 per cent of the legal minimum wage (or daily wage, if lower) multiplied by the percentage of disability for unemployed persons.

Prescribed degree of the loss of earning capacity

According to sections 1.2.2 and 2.2.4(3) of the WIA, partial disability is recognized and compensated only when 35 per cent or more of earning capacity is lost. If an employee experiences a loss of capacity for work of less than 35 per cent, he will not qualify for any WIA benefit (sections 7.1.3(2) and 7.2.3(6)). The Committee notes that this threshold is set too high to comply with the Convention. Article 14(1) of the Convention permits to prescribe a minimum degree of loss of earning capacity for which cash benefits become payable. Incapacity below this degree (e.g. less than 10 per cent) may be disregarded for the purpose of compensation under the Convention. Article 14(3) further permits to prescribe a higher degree of incapacity giving entitlement to periodical cash benefit for “substantial partial loss of earning capacity” (e.g. over 25 per cent). Between the minimum degree of loss of earning capacity, which marks the entry point into the scheme, and the higher degree for substantial loss, Article 14(4) covers the range of incapacity corresponding to the partial loss of earning capacity which is not substantial and which could be compensated not by the periodical pension but by the lump-sum payment. The Committee has accepted in some cases that a minimum degree of incapacity fixed below 10 per cent may be compatible with the Convention and that incapacity below 25 per cent could be regarded as not substantial and compensated by lump-sum payments. Depending on the existence of other complementary income guarantees, lump-sum compensation has been admitted by the Committee in certain cases for incapacity up to 35 per cent. The WIA Act does not include lump-sum benefits and does not pay any benefit at all for incapacity below 35 per cent. Thus, persons with less than 35 per cent incapacity are excluded from protection against employment injury, which is contrary to the Convention. The possibility for them to apply for unemployment benefit or for social assistance is not relevant within the legal framework of the Convention.

The Committee notes that in the opinion of the FNV the situation with workers suffering less than 35 per cent capacity loss is alarming. The labour market in the Netherlands is extremely tight and thousands of persons with disabilities less than 35 per cent lost their jobs and are no longer entitled to a disability benefit because of the high incapacity threshold. According to the Institute for Employee Benefit Schemes (UWV) monitoring report, only 52 per cent of all workers who became less than 35 per cent disabled between 2006 and mid 2007 worked in 2008. The Committee further notes that, according to the Government, it is the employers who bear the responsibility for the employees with less than 35 per cent disability. Employers should seek solutions within their own company and, in case of failure to do so, the possibility exists to start working for another employer. The Government sees the finding of the in-depth monitoring of the group of employees with less than 35 per cent capacity loss as promising: while in January 2007 only 46 per cent of the interviewed individuals were working, in February 2008 already 62 per cent of them were employed, showing an increase of 16 per cent. The report states that “the Dutch Government therefore does not intend to change policy in this regard. The main focus for this group of less than 35 per cent disability now lies in giving both employers and employees time and space to continue to improve the situation”. The Committee regrets the Government’s position, and notes that the Government, while recognizing non fulfilment of its international obligation under the directly applicable provision of the Convention, has not yet brought national law and practice into compliance with the Convention on this point and leaves victims of employment injuries with incapacity up to 35 per cent without any form of compensatory benefit.

The Income Provision Scheme for Fully Occupationally Disabled Persons (IVA)

According to the FNV, income protection for the fully disabled has been well organized, as all of them will receive at least 70 per cent of their former wage. However, the eligibility for full disability benefits has become too strict because of the sharpened assessment of disability. Under the terms of the WIA, an employee (section 1.3.1) who is fully and permanently incapable of work (section 6.1.1, subsection 1(b)) shall be entitled to an incapacity benefit of 75 per cent of the monthly wage (section 6.2.1, subsection 1), provided that the benefit shall be reduced by 70 per cent of the income earned by this person from employment or self-employment during this month (section 6.2.2, subsections 1 and 4). The Government’s report states that the eventual earnings or assets of the members of the family of the beneficiary are not taken into account in determining the IVA benefit. The Committee notes that the amount of the incapacity benefit payable to a fully and permanently incapacitated employee who is not engaged in any gainful employment or self-employment, exceeds the level of 60 per cent of the previous wage prescribed by the Convention. The Convention, however, does not authorize any reduction of the benefit in case a fully incapacitated person (80–100 per cent disabled) finds the force to earn additional income from any gainful occupation, leaving him free to combine invalidity benefit with work. The Committee observes that the IVA scheme could be made fully consistent with the Convention by deleting section 6.2.2 of the WIA. It would therefore invite the Government to consider this option with a view to enhance the social protection and well-being of fully disabled persons in line with the Convention, taking into account the likely minimal financial impact of this measure on the insurance scheme.

The Return to Work Scheme for the Partially Disabled (WGA)

Section 1.1.1 of the WIA defines the WGA benefit not as a compensatory benefit for a disablement, but as “work resumption benefit for persons partially capable of work”. The WGA scheme consists of two phases: the wage-related WGA benefit and the subsequent phase, during which the benefit is related to the statutory minimum wage. The Committee recalls that it had previously examined the benefits provided by the WGA scheme in its conclusion of 2008 on the application by the Netherlands of the European Code of Social Security in the context of the invalidity benefit.

Wage-related WGA benefit. Under the wage-related WGA benefit scheme, a person with partial disability of between 35–80 per cent retains a certain working capacity and is for that remaining part considered to be unemployed, and as a consequence is obligated to register as a jobseeker, to make sufficient attempts to obtain suitable work, and to accept an offer of such work (section 4.1.4(1) of the WIA) – all conditions which normally apply to unemployment benefit recipients. By combining the unemployment benefit (WW) with the previous disability benefit (WAO), the WIA makes it possible for a partially disabled person to apply for a single benefit, instead of for two benefits, which is calculated so that it is equal to the sum of the WW and the WAO benefits that he would have received.

The Committee observes that this new design integrating social security benefits for unemployment and partial disability is unique and could not have been foreseen by the Convention. The Committee recognizes that this arrangement has the merit of ensuring on the one hand that a partially disabled person automatically receives compensation for his loss in earnings as a result of unemployment and, on the other hand, that he is immediately stimulated to resume work and to use the employment service to speed up the reintegration process. However, subjecting the employment injury benefit to the conditions laid down in section 4.1.4 (being partially capable of work, available for work and actually seeking work) transforms it into an unemployment benefit, as defined in the ILO standards. The entitlement to WGA benefit depends on the insured being also entitled to unemployment benefit. Those not eligible for unemployment benefit are not entitled to the WGA wage-related benefit and can get only WGA wage supplement benefit or the follow-up benefit (section 7.1.1(4)). The Committee considers that under such conditions the wage-related WGA benefit falls outside the scope of the Convention because its eligibility requirements are those of the unemployment benefit and not of the employment injury benefit.

According to section 7.1.1(1) of the WIA, an insured person who becomes sick shall be entitled to the benefit for partial incapacity (WGA) if (a) he has completed the qualifying period, and (b) he is partially capable of work. Section 7.1.5(1) specifies that the entitlement to the WGA benefit is subjected to the qualifying period of performing work as an insured person for at least 26 weeks during the 39 weeks immediately preceding the loss of entitlement to wage in case of sickness or to the sickness (ZW) benefit. The Committee has pointed out in its previous comments that under Article 9(2) of the Convention, eligibility for benefits may not be made subject to the length of employment or the duration of insurance and has asked the Government to explain whether the above requirement (see also sections 7.1.1(3 and 4) of the WIA) of having a period of previous insured employment is applied also in case of sickness and incapacity resulting from employment injury. In reply, the Government states that no conditions with regard to the duration of the employment history are imposed on the entitlement to a WGA benefit, which satisfies all the standards of the Convention. While noting this statement, the Committee requests the Government to explain in further detail to what benefits the abovementioned sections 7.1.1 and 7.1.5 of the WIA refer and how one should understand their provisions.

Section 7.2.1 subjects the duration of the wage-related WGA benefit to the length of previous employment history, the rules of the computation of which are laid down in the three pages of section 1.6.1. As the Convention does not permit the benefit to be affected in this way by the length of previous employment, the wage-related WGA benefit can be taken into account for the purpose of the application of the Convention only in its minimum duration of six months. Furthermore, by virtue of section 7.2.1(3) this benefit may be reduced by the period of previously received unemployment benefit, which is not permitted by the Convention. These provisions and the above qualification requirement impose restrictive conditions, which lead the Committee to believe that the wage-related WGA benefit should be disregarded for the purpose of the application of the Convention. After the wage-related WGA benefit, the disabled person will be entitled either to a wage supplement in case he works and fulfils an income requirement based on his residual earning capacity (section 7.2.3, subsection 3), or to a follow-up benefit (section 7.2.2, subsection 1). Hence, the level of protection guaranteed by the Convention would now be assessed only by reference to the wage supplement benefit and the follow-up benefit.

Wage supplement. Of these, the wage supplement benefit is further subjected to the income requirement (section 7.2.2) that the insured person partially capable of work must earn per calendar month an income from work which is at least equal to 50 per cent of his remaining earning capacity. The requirement to use the residual earning capacity as a condition for entitlement is contrary to the basic philosophy of the Convention, which guarantees benefits at the prescribed level without regard to the residual earning capacity and additional income which can be earned by the workers with incapacity. It appears therefore that only the follow-up WGA benefit could be taken into account for the purpose of the application of the Convention.

Follow-up WGA benefit. If the WGA recipient does not work, s/he is entitled to the follow-up benefit. The Government indicates that any recipient of the WGA benefit is considered to be unemployed to the extent that his remaining working capacity is not utilized and is therefore placed under the obligation to register as a jobseeker, to make sufficient attempts to obtain suitable work, and to accept such work, if offered (section 4.1.4, subsection 1, of the WIA). The WGA recipients are also obliged to prevent the occurrence of incapacity, to limit the existence of such incapacity, to acquire the potential to perform suitable work and to make sufficient reintegration efforts (sections 4.1.2 and 4.1.3). Non-fulfilment of these obligations or failure to do so properly is sanctioned by the benefit being refused wholly or partially, permanently or temporarily, or by applying fines (Chapter 10 of the WIA). The Committee observes that the nature and the extent of many of these obligations go beyond limitations permissible under Article 22(1) of the Convention. Taking into account that the Convention does not permit subjecting the entitlement to the benefit to an obligation to make use of the remaining earning capacity, the Committee would ask the Government to consider bringing the regime of legal obligations and sanctions imposed by the WIA on the recipients of the follow-up WGA benefit into line with Article 22 of the Convention. 

The level of benefits

The WIA scheme includes wage-related benefit (IVA benefit for total incapacity and wage-related WGA benefit) and flat benefit (follow-up WGA benefit). It appears that the replacement level fixed by Article 19 of the Convention for wage-related benefits – 60 per cent of the reference wage of the skilled manual male employee for a standard beneficiary – would be attained by the IVA and WGA benefits for total incapacity, as well as by the WGA wage-related benefit. The situation however may be more problematic as regards the level of the WGA follow-up benefit for partial incapacity.

According to Article 14(3) of the Convention, the benefit for partial incapacity should represent a suitable proportion of the benefit for total incapacity. The WGA follow-up benefit should therefore represent a suitable proportion of the IVA benefit calculated on the basis of the monthly wage. This apparently would not always be the case taking into account that the follow-up benefit is a flat rate benefit calculated on the basis of the legal minimum wage and not as a percentage of previous wage. The example given by the FNV shows that an employee with incapacity of 50 per cent will receive the follow-up WGA benefit representing only 12 per cent of his last-earned wage, which is not “suitably” proportional either to the IVA benefit for total incapacity, which would amount to 75 per cent of his last-earned wage, or to the wage-related WGA benefit, which would in that case amount to 60 per cent of the previous wage. The FNV concludes that there is an unacceptably large difference of income protection between the IVA and wage-related WGA benefits on the one hand, and the follow-up WGA benefit, which results in hardship for many recipients of the follow-up WGA benefit.

The FNV points out that since the entry into force of the WIA, the labour participation of the partially disabled in the Netherlands has dropped sharply: while 69 per cent of the beneficiaries of the WAO worked five months after their disability assessment, for the WGA beneficiaries this figure is only 49 per cent. The explanation for this, according to the FNV, is found in the continuously deteriorating health condition of the WGA beneficiaries and the fact that employers are very hesitant to employ partially disabled with severe infirmities. There is no obligation for the employers to employ persons with disabilities. On the contrary, the employers are free to terminate partially disabled workers, who then have to find another job, which is not easy in the Netherlands, particularly in the context of the economic downturn. It is the full responsibility of the employee with disabilities to find and keep a job or else face a very low income. The FNV further observes that the requirement to use the residual earning capacity could cause deterioration of the health condition of the partially disabled. The situation becomes particularly hard for temporary workers, who represent 15 per cent of all workers in the country. It is much more difficult for a partially disabled flexible worker to stay in the labour market because he is not covered by the employer’s responsibility for his sick pay, rehabilitation and reintegration during the first two years of sickness. The FNV does not support a system whereby partially disabled persons who cannot find a job, have to turn to unemployment benefit and to social assistance.

The Committee observes that the disproportionately low level of the follow-up WGA benefit might result, contrary to the objective of Article 14(5) of the Convention, in hardship for many partially disabled persons obliging them to apply for social provisions or assistance in case they do not find sufficiently paid employment. This is a situation that the Convention was designed to avoid by obliging the ratifying State to institute a scheme that excluded the need for victims of employment injury to have recourse to social assistance. Means-tested social assistance benefits, such as the TW supplement, therefore are not considered as the appropriate forms of protection under the Convention. It appears that the low level of the follow-up benefit, while encouraging partially incapacitated persons to resume employment, might at the same time push the categories of persons who could not do so, including for labour market reasons beyond their control, into hardship and poverty, which would be against the objectives of the Convention. The Committee invites the Government to explain its position, including the provision of additional information with respect to this level of benefit situation.

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

The Committee notes that the Government’s report for the period 1999–2006 contains information only as regards the application of Articles 13, 21 and 26 of the Convention. The Committee hopes that a full report will be supplied for examination at its next session in November–December 2008 containing all the information requested in the report form under each Article of the Convention, as well as detailed answers to the following questions.

Article 9 of the Convention (conditions of entitlement to benefits). According to section 7.1.1(1) of the Work and Income (Capacity for Work) Act (WIA), an insured person who becomes sick shall be entitled to the benefit for partial incapacity (WGA) if: (a) he has completed the qualifying period; and (b) he is partially capable of work. Section 7.1.5(1) specifies that the entitlement to the WGA benefit is subject to a qualifying period of work as an insured person for at least 26 weeks during the 39 weeks immediately preceding the loss of entitlement to wages in case of sickness or to the sickness benefit (ZW). Taking into account that under Article 9(2) of the Convention, eligibility for benefits may not be made subject to the length of employment or the duration of insurance, the Committee would like the Government to explain whether this requirement (see also sections 7.1.1(3) and (4) of the WIA) of having a period of previous insured employment is applied in case of sickness and incapacity resulting from employment injury.

As regards the requirement to be partially capable of work, section 7.2.2 stipulates that in order to become entitled to the WGA wage top-up benefit, the insured person should earn per calendar month an income from work which is at least equal to 50 per cent of his remaining earning capacity. Section 4.1.4 obliges the insured person entitled to the WGA benefit to register as a jobseeker and to perform suitable work if given the opportunity to do so. The Committee points out that the requirements to use the residual earning capacity, to perform suitable work and to obtain income from work as a condition for entitlement to employment injury benefit are not envisaged by the Convention. The Committee would like the Government to specify the qualifying requirements imposed by the WIA on which entitlement to the WGA top-up benefit is dependent.

Article 14, paragraphs 4 and 5 (degree of incapacity). In accordance with sections 1.2.2 and 2.2.4(3) of the WIA, partial disability is recognized and compensated only when 35 per cent or more of earning capacity is lost. If an employee experiences a loss of capacity for work of less than 35 per cent, he or she will not qualify for any WIA benefit (sections 7.1.3(2) and 7.2.3(6)). The Committee recalls that, in accordance with Article 14(4) and (5) of the Convention, the degree of loss of earning capacity shall be prescribed in such manner as to avoid hardship for the persons concerned, who at least should be entitled to a lump-sum payment in case such loss is not substantial. Taking into account that no lump-sum benefit is envisaged by the WIA, the Government is asked to explain how the protection guaranteed by the Convention is ensured to victims of employment injuries with less than 35 per cent incapacity.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes note of the information supplied by the Government in its report. It also notes the consolidated text of the Disablement Benefit Act (WAO), the "Evaluation Decree" issued under section 18 of the WAO which determines the capacity and fitness for work of persons with disabilities, and the General Surviving Relatives Act (ANW). The Committee also notes the explanations concerning the invalidity and survivors’ insurance systems given in a number of publications of the Social Insurance Institute.

The Committee would like to receive further information on the following points.

Article 9(3) in conjunction with Articles 1(e), 6(d) and 18 of the Convention.  The Committee notes that, under section 24(2) of the ANW, the surviving spouse’s entitlement to a half-orphan’s pension expires when he/she reaches the age of 65. The Committee asks the Government to indicate how, in such cases, effect is given to Article 9(3)in respect of children of the insured person who have not yet reached the age set in Article 1(e) of the Convention.

Article 13.  The Committee recalls that as from 1 March 1996 the Civil Code as amended by the Act of 8 February 1996 requires employers to pay their employees part of their wage in the event of sickness (70 per cent of their wage or the minimum wage if this is higher), for a period of no more than 52 weeks. The Sickness Benefits Act (ZW) continues to exist as a safety net in a limited number of cases, in particular in the event of the employer’s bankruptcy. The Committee recalls that under Article 25 of the Convention the State must accept general responsibility for the due provision of the benefits provided and take all measures required for the purpose. This means that effective supervisory measures must be taken to ensure the entitlement of protected persons against all risks of abuse or of failure of the system. The Committee would like the Government to provide information in its next report on how the system introduced in 1996 is supervised, including statistics on the number of inspection visits, the number of infringements registered and the action taken including the sanctions imposed.

Article 14.  The Committee notes that as from 1 January 1998 employers are entirely responsible for financing employees’ disability benefit. Employers pay a compulsory basic contribution and a "differentiated contribution" the amount of which varies according to the number of employees in the enterprise claiming disability benefit. The purpose of this system is to encourage employers to prevent and cut down sickness and invalidity leave in the enterprise. The differentiated contribution is not compulsory, however, as employers may opt to cover the risk themselves for five years by taking out private insurance or producing a guarantee certificate from a credit institution or insurance company. The Committee asks the Government to provide information on the practical application of the reform introduced in 1998, indicating the extent to which employers have in practice opted to be directly liable for the cost of invalidity benefits for the first five years.

Articles 19 and/or 20.  The Committee notes the statistics provided by the Government on the rate of temporary disability, permanent disability and survivors’ benefits. It recalls that according to Articles 19(2) and 20(2) the reference wage, the benefit and family allowances must be calculated on the same time basis. Whereas the time basis pertaining to the statistics on the reference wage and the amount of benefits is one month, it would appear that the time basis used in the statistics on family allowances is three months. The Committee therefore hopes that the Government’s next report will take due account of the prescriptions of the Convention on this point. Please also indicate whether the holiday allowance which is added to the invalidity and survivors’ benefits is also paid during employment and, if so, specify its amount.

Article 21(1).  The Committee notes the information supplied by the Government to the effect that for the period from 1 July 1994 to 1 July 1997 the cost-of-living index increased by 5.3 per cent and wages by 5.8 per cent, whereas benefits rose by only 3.7 per cent under the WKA adjustment system. The Committee notes with interest in this connection the Government’s statement in its report that normal indexation of benefits has been re-established as from 1 January 1996. The Committee hopes that the Government will continue to ensure that benefits are reviewed in the future, in accordance with the provisions of Article 21(1) of the Convention. It therefore asks the Government to provide all the necessary statistical information in this respect, as requested in the report form under this Article of the Convention.

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 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:

1. Article 6 of the Convention. The Committee notes that under section 18, paragraph 1 of the Disablement Benefit Act (WAO), as amended by the Acts of 26 February 1992 and 7 July 1993, a person is considered to be either totally or partially disabled if, as a direct result of illness or infirmity objectively and medically established, he/she is either totally or partially unable to earn, through work, what a healthy person with similar training and experience normally earns through work at the place where he/she performs or last performed work, or in the surrounding area. In addition, paragraph 5 of the same section states that the term "work" is understood to mean all generally accepted work which the worker is in a position to perform by virtue of his/her strengths and abilities. The Committee would like the Government to provide details of how section 18 of the WAO is applied in practice and to supply the text of any regulatory or administrative provisions defining its scope.

2. Article 14 (in conjunction with Articles 19 or 20). The Committee notes that, except in the case where the transitional provisions apply, the disability benefit which takes into consideration the degree of incapacity is provided in two phases. In the first phase the benefit depends on the beneficiary's former wage, as under the former legislation. But the duration of the provision of the benefit during this first phase will depend on the worker's age at the onset of the contingency and will vary by six months to six years, it being understood that workers under 33 years of age at the onset of the contingency are not entitled to this initial benefit. Upon expiry of this first phase, the beneficiary is entitled to an amount equivalent to the minimum wage plus an additional amount which will be equal to 2 per cent of the difference between the beneficiary's last wage and the minimum wage multiplied by the number of years between age 15 and the age of the beneficiary at the onset of the contingency. The benefit will be paid up to the age of 65 years.

The Committee would like the Government to provide statistical information, as required by the report form, on the level of benefits provided in the event of permanent disability, particularly with regard to benefits paid during the second phase. The Committee recalls in this connection that the level of employment injury benefit and sickness benefit prescribed by the Code, as amended by the Protocol, in the event of total loss of earning capacity (60 per cent of the reference wage) must be attained independently of any waiting period before the incapacity (Article 9, paragraph 2) and regardless of the beneficiary's age at the onset of the contingency.

3. Article 6(d) and Article 18. The Committee notes that, according to a publication of the Ministry of Social Affairs and Employment sent by the Government, a new system of survivors benefit (Act on General Survivors) entered into force on 1 July 1996. The Committee would like the Government to provide with its next report detailed information on the implementation of this reform in the light of the pertinent provisions of the Convention, specifying, in particular, the manner in which are defined all the circumstances of resources which could affect the entitlement to survivors' benefits.

4. Article 21, paragraph 1. The Committee notes that, according to the Act on the indexation of minimum wages and allowances (WKA), which came into force on 1 January 1992, indexation may be suspended in cases where circumstances so require. It noted the Government's statement that, as from 1 January 1996, social security benefits will, as in the past, once again be fully adjusted to the wage index. The Committee would like the Government to indicate in its next report whether the indexation of benefits has been re-established as from 1 January 1996, in accordance with the Government's earlier assurances and to supply statistics as required by the report form under Article 21 of the Convention, for the reference period and, if possible, as from 1 January 1996.

5. 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 provide the consolidated texts in Dutch - incorporating all amendments of the various social security laws in force in the Netherlands, when such a consolidation exists.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report for the period 1989-1993. It wishes to draw its attention to the following points:

1. Article 14 (benefit in respect of permanent incapacity) and Article 18 (benefit in the event of the death of the breadwinner). The Committee notes the information supplied by the Government in its twenty-sixth report on the application of the European Social Security Code and its Protocol concerning the current reform of the Disablement Insurance Act (WAO) and the General Widows and Orphans Act (AWW). It would be grateful if the Government would supply detailed information on the implementation of this reform, once it has come into force, in the light of these provisions of the Convention, and if it would supply the text of the laws and regulations which are adopted. With particular reference to the reform of the General Widows and Orphans Act, the Committee would be grateful if the Government would supply information on the manner in which any conditions relating to resources may affect entitlement to survivor's benefits.

2. Article 21, paragraph 1, of the Convention (Review of long-term benefits currently payable). The Committee notes the information concerning the review of benefits during the period 1987-92. It also notes that, as from 1 January 1992, the system for the automatic adaptation of the various social security laws by virtue of the Act respecting adjustment procedures (WAM), has been replaced by a new text governing the indexation of minimum wages and benefits (WKA). This latter Act provides for the possibility of suspending indexation in the event that circumstances require such a measure. The Committee recalls in this respect the importance that it attaches to the application of Article 21 of the Convention, which provides that the rates of cash benefits currently payable pursuant to paragraphs 2 and 3 of Article 14 and paragraph 1 of Article 18 shall be reviewed following substantial changes in the general level of earnings where these result from substantial changes in the cost of living. The Committee requests the Government to supply detailed information in its next report on the implementation of the above Act (WKA), including the statistics called for in the report form under this Article of the Convention, and to supply the text of the above Act.

3. Furthermore, the Committee notes the statistics supplied by the Government in the context of Article 18 of the Convention. It notes that the Government based its computations on a wage of a standard labourer of 1987.70 florins per month. In view of the fact that this amount does not appear to have changed in relation to the amount mentioned by the Government in its report for the period 1981-85, the Committee hopes that in future the Government will supply up-to-date statistics on the amount of the above wage.

[The Government is asked to report in detail for the period ending 30 June 1994.]

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee has taken note of the information communicated by the Government in its reports for the period 1985-87 and 1987-89, concerning in particular Article 4 of the Convention.

The Committee would like to receive additional information on the following points:

1. Article 21, paragraph 1 (Review of long-term benefits currently payable). The Committee notes the information communicated by the Government in its report for the period 1985-87 and in particular the Government's statement that the rules for adjustment of currently payable benefits in the case of incapacity for work are applicable to all benefits. The Government has also stated in its twenty-second report on the application of the European Social Security Code, that it refrained, from adjusting the amount of the legal minimum wage and of social security benefits to the variation in the wages, during the period covered by that report (1988-89). It adds, however, that the purchasing power of social security beneficiaries, inter alia, has been maintained, on the one hand, by a reduction in VAT and social security contributions and, on the other hand, by a special 4 per cent raise in family allowance.

Bearing in mind the particular importance that the Committee attaches to the question of reviewing long-term cash benefits, especially in the context of the general economic situation, the Committee hopes that the Government will endeavour to take this provision of the Convention into account, and that it will also include in its next report, detailed information on the measure adopted to ensure its application, as well as all the statistics requested in the report form under this provision of the Convention.

2. The Committee has also noted with interest the information communicated by the Government in its report on the contemplated health insurance reform. It would be grateful if the Government would continue to supply information on all developments in this respect in its future reports.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee has been informed that the Government of the Netherlands, in a communication dated 15 June 1989, has formally withdrawn its denunciation of this Convention, which would have come into effect on 22 July 1989. The Committee has noted this information with satisfaction.