UN Human Rights Treaties

UNITED NATIONS
E
Economic and Social
Council
Distr.
GENERAL
E/C.12/1998/SR.13
7 May 1998
Original: ENGLISH
COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Eighteenth session
SUMMARY RECORD OF THE 13th MEETING
Held at the Palais des Nations, Geneva,
on Tuesday, 5 May 1998, at 3 p.m.
Chairperson: Mr. ALSTON
CONTENTS
CONSIDERATION OF REPORTS:
(a) REPORTS SUBMITTED BY STATES PARTIES IN ACCORDANCE WITH ARTICLES 16
AND 17 OF THE COVENANT (continued)
Second periodic report of the Netherlands
This record is subject to correction.
Corrections should be submitted in one of the working languages. They
should be set forth in a memorandum and also incorporated in a copy of the
record. They should be sent within one week of the date of this document to
the Official Records Editing Section, room E.4108, Palais des Nations, Geneva.
Any corrections to the records of the meetings of the Committee at this
session will be consolidated in a single corrigendum to be issued shortly
after the end of the session.
GE.98-15989 (E)
E/C.12/1998/SR.13
page 2
The meeting was called to order at 3.10 p.m.
CONSIDERATION OF REPORTS:
(a) REPORTS SUBMITTED BY STATES PARTIES IN ACCORDANCE WITH ARTICLES 16
AND 17 OF THE COVENANT (agenda item 6) (continued)
Second periodic report of the Netherlands (E/1990/6/Adds.11, 12
and 13; HRI/CORE/1/Adds.66, 67 and 68; E/C.12/Q/NET/1; in-session
document, with no symbol, containing the replies of the Government
of the Netherlands to questions raised in the list of issues)
1. At the invitation of the Chairperson, the delegation of the Netherlands
took places at the Committee table.
2. The CHAIRPERSON noted that the second periodic report of the Netherlands
in fact consisted of three reports, concerning the European part of the
Kingdom (E/1990/6/Add.11), Aruba (E/1990/6/Add.12), and the
Netherlands Antilles (E/1990/6/Add.13). He drew attention to the written
replies of the Government of the Netherlands, which existed only in English,
and informed the delegation that some members of the Committee would therefore
not be familiar with the answers. He invited the delegation to present its
opening remarks on the European part of the report.
3. Mr. POTMAN (Netherlands) said he would like firstly to apologize for the
lateness of the report. Unfortunately, the Netherlands had, about two years
before, fallen behind in its reporting obligations to various international
instruments, the Covenant among them. Since that time, his Government had
made stringent efforts to bring its reports up to date, and wished to make
some suggestions concerning the submission of reports. Regrettably, Aruba had
been unable to send a representative; his delegation would consult with the
Government in that country concerning any questions it was unable to answer.
Arrangements had also been made for consultations with the Hague, where
necessary.
4. The structure of the Kingdom of the Netherlands dated back to 1954, when
the Netherlands, Surinam and the Netherlands Antilles, which then included
Aruba, had established a new constitutional order, under which they would
conduct their internal affairs autonomously and in their common interest on
the basis of equality. While remaining a single sovereign entity under
international law, the Kingdom had thenceforth consisted of three equal
partners. In 1975, Surinam had chosen to leave the Kingdom, and had become a
full State in its own right; in 1986, Aruba had become a separate country
within the Kingdom with the same constitutional status as the other
two countries.
5. The European part of the Kingdom was a highly developed industrial and
postindustrial
society; although geographically small, it was densely
populated. The Parliament and executive (“the Crown”, in the constitutional
sense) were together empowered to make legislative decisions. Although the
judiciary could challenge the constitutionality of executive measures based on
formal legislation, it did not have the capacity to determine whether
E/C.12/1998/SR.13
page 3
parliamentary acts were constitutionally correct. The role of the judiciary
was therefore bound to individual cases, while it fell to the legislature to
rule on constitutional matters.
6. The Committee had chosen an apt moment for the consideration of the
report: general parliamentary elections were to be held on 6 May. The term
“polder model” had recently figured in international news reports: although
the name derived from the lowlands, which were such a typical feature of the
Dutch landscape, in the political sense it referred to a socio-economic system
based on consensus-building among social partners. During much of the 1980s
and the 1990s, the Netherlands had evolved a policy of wagedemand
restraints
(an important feature of the “polder model”), which had helped to restore the
competitiveness of Dutch industry. At the same time, the Government had
trimmed expenses by, inter alia, drastically reforming the social security
system. On that basis, the Government coalition which came to power in 1994
had been able to deregulate the market, while at the same time shoring up the
welfare system that had been set in place after World War II. Those
circumstances, together with a favourable economic climate, had led to a
remarkable rise in employment at all social levels.
7. Since the 1980s, the Netherlands had gradually abandoned traditional
social structures, placing greater emphasis on both the rights and the
responsibilities of the individual. Perhaps the most dramatic example was the
transformation from a breadwinner socio-economic structure (families in which
the man worked and the woman stayed at home), to a structure in which women
were responsible for their own incomes and social security benefits.
Traditionally, the participation of women had been low in the Netherlands, and
day-care arrangements had only recently been developed on a significant scale.
8. It had become clear over the course of the previous several years that
Netherlands society was moving toward a mixture of widely varying cultures.
Consequently, policies were directed not at assimilating diverse cultures into
the dominant culture, but at intercultural exchange and the eradication of
discrimination: the Covenant was therefore an essential instrument for the
Government of the Netherlands.
9. But not all members of Dutch society agreed with the views of the
Government. The Committee had received commentaries from various quarters,
among them the report of the Netherlands Section of the International
Commission of Jurists (ICJ). That non-governmental organization (NGO) had
scrutinized the second periodic report of the Netherlands; its comments were
at the disposal of the Committee. Since the Netherlands Government was a
strong advocate of the independence of NGOs, it had not participated in the
preparation of the ICJ report, and reserved the prerogative to agree with some
points and disagree with others.
10. The Netherlands Government was deeply committed to the object and
purpose of the Covenant and to the Universal Declaration of Human Rights, and
shared the belief that economic, social and cultural rights should have the
same status as civil and political rights. Although the obligations of a
Government with regard to civil and political rights were clear, however, they
were less so with regard to economic, social and cultural rights. ICJ had
moreover argued that the Covenant was not directly applied under the Dutch
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legal order. Indeed it was not. Article 93 of the Dutch Constitution
established the possibility for international treaties to be directly applied.
In the case of the Covenant, the Government had expressly chosen not to invoke
that provision, on the grounds that many of the Covenant's clauses represented
obligations and commitments calling for Government action that went beyond
mere Government guarantees. In the view of the Netherlands, Government action
in a democratic State should be based on choices that arose from the political
will of all.
11. In practical terms, the implementation of the rights established by the
Covenant was the domain of the Government, Parliament, the judiciary and civil
society. The way in which those rights were implemented was political rather
than judicial, and therefore dynamic rather than static. That meant that
although rights were fully recognized, the way in which they were implemented
could change over time. Emphatically, it did not mean that the rights
enshrined in the Covenant carried less importance than did those which could
be invoked before the courts; they were simply implemented differently, and
their implementation called for an active Government.
12. The Netherlands believed that the activities of the treatymonitoring
bodies should be counted among the core tasks of United Nations human rights
activities; those committees and their staffs should therefore be funded by
the regular budget. It was clear, however, that additional resources were
needed; his Government had recently contributed 50,000 dollars toward the
Programme of Action to Strengthen the Implementation of the International
Covenant on Economic, Social and Cultural Rights. Efforts should be made to
streamline the functions of the treatymonitoring
system; the treatybody
reporting system should, in particular, be closely scrutinized. The
Government welcomed the proposals put forward in the Alston report (the final
report of the independent expert on enhancing the longterm
effectiveness of
the United Nations human rights treaty system, E/CN.4/1998/L.11/Add.3); a
followup
should be undertaken, including practical proposals for action. It
was worth noting that the former Advisory Committee Human Rights/Foreign
Policy, an independent Commission which advised the Government of the
Netherlands, had prepared two reports on the role of the United Nations in
monitoring human rights; those reports, which contained proposals concerning
ways to enhance the implementation of treaties and covenants, would soon be
made available to the Committee.
13. His Government proposed that, after consideration of an initial report,
a State party should submit reports which concentrated on new developments and
on its reactions to a Committee's recommendations. Concomitantly, a Committee
could request a State party to provide detailed accounts of particular
obligations. Permitting a State party to focus on particular issues should
not, however, become a means by which it evaded others.
14. His Government sought the view of the Committee with regard to that
suggestion, and wished to know, in particular, whether it could submit its
next report on that basis.
E/C.12/1998/SR.13
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15. The CHAIRPERSON, replying to a question put by Mr. Riedel, said that,
unless members deemed that the proposal of the Netherlands had immediate
practical implications, the Committee should revert to it during its scheduled
discussion on focused reporting to take place later in the session.
Articles 1 to 5
16. The CHAIRPERSON invited the members of the Committee to address comments
to the delegation with regard to articles 1 to 5, which did not figure on the
list of issues.
17. Mr. RIEDEL said that, by admirable tradition, the Dutch courts criminal,
civil, and administrative often
invoked the provisions of
international legal instruments, especially in cases involving human rights,
even when such provisions were considered to be non-self-executing. Were
there any court decisions which invoked the Covenant? What was the position
of the Government with regard to the draft optional protocol? He presumed
that the Netherlands, like other Western European countries, took a sceptical
view, according more weight to civil and political rights than to economic,
social and cultural ones. Was there any reason why the Covenant should not be
treated in the same way as other international legal instruments? A number of
Dutch jurists had argued that the Covenant established different sorts of
obligations, and to simply state that they were non-self-executing did not
suffice.
18. Drawing attention to the Committee's General Comment No. 3 (1990) on the
nature of States parties' obligations, he said that, in the view of the
Committee, at least seven of the articles of the Covenant had direct
application: the members would address their questions to the delegation
accordingly. The Committee would welcome the views of the Netherlands in that
regard: if it, like other Western European countries, maintained a more
restrictive interpretation, the Committee simply requested that its position
should be passed on to the Government, on the understanding that views could
change.
19. Finally, it would be useful to know what measures, if any, had been
undertaken to incorporate human rights education which emphasized economic,
social and cultural rights into Dutch schools, universities and
adulteducation
courses, as well as into training programmes for government
officials.
20. Mr. SADI said he disagreed with the Netherlands Government's view that
the provisions of the Covenant did not directly give rise to legal obligations
and asked whether the Netherlands Government was prepared to give
consideration to his view, which was borne out by certain jurisprudence of the
Committee. As a subsidiary question, he asked to what extent government
departments took the Covenant into account in their economic, social and
cultural planning.
21. Mr. PILLAY, noting that the Dutch section of the International
Commission of Jurists considered that the Covenant was only marginally, if at
all, taken into consideration in the legislative and policymaking
process at
the national level, asked how, if that was so, the Netherlands Government
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could be said to be complying with its obligations under the Covenant. He
also asked for elucidation of the statement just made by the head of the
delegation to the effect that the precise obligations for Governments in
relation to economic, social and cultural rights were “less clear” than those
relating to civil and political rights.
22. Mr. THAPALIA asked the delegation to state the Netherlands Government's
position on the subject of the optional protocol to the Covenant recommended
by the Vienna World Conference.
23. Mr. ANTANOVICH asked how the Netherlands Government's differentiated
approach to different categories of human rights could be regarded as
compatible with the United Nations concept of the indivisibility of all human
rights.
24. Mr. POTMAN (Netherlands) said that his Government was fully committed to
the concept of indivisibility of all human rights and accorded them the same
status in terms of their implementation. The fact that, for essentially
technical reasons, it did not think that economic, social and cultural rights
had direct applicability certainly did not mean that it attached less
importance to those rights.
25. Mr. van RIJSSEN (Netherlands) said that, unlike civil and political
rights, which were essentially rightsoriented,
economic, social and cultural
rights were principally oriented towards the obligations of the State. The
Maastricht guidelines mentioned by Mr. Riedel allowed a certain margin of
discretion with regard to the implementation of the latter category of rights.
In his country's system, the question of the effectiveness of steps taken to
discharge an obligation was considered a matter for Parliament rather than for
the judiciary. Of course, if the State failed to discharge its obligation
altogether, an individual who believed that his or her human rights had been
violated as a result could bring the matter before the courts. That did not
mean, however, that all the provisions of the Covenant could be regarded as
selfexecuting.
26. Mr. SADI, pointing out that articles 1, 3 and certain others of the
two International Covenants were identical, urged the Netherlands Government
to reconsider its position. He agreed, however, that certain economic, social
and cultural rights, such as the right to health, represented a relative
rather than an absolute standard, because the economic situation of each
particular country had to be taken into consideration.
27. Mr. RIEDEL remarked that in a number of Western European countries the
courts were entitled to pass judgement in principle on the Government's
compliance with an instrument to which it was a party, but the question of
precisely how that obligation was discharged was left to the relevant
government department. He wondered whether such an approach, which was more
lenient than direct applicability, might be acceptable to the Netherlands
Government.
28. Mr. van RIJSSEN (Netherlands) said that his Government recognized the
direct applicability of many economic, social and cultural rights, which, in
addition to being set forth in the Constitution, were also protected by
E/C.12/1998/SR.13
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various international instruments to which the Netherlands was a party. The
difficulty arose where a caring obligation was imposed upon the Government.
The right to health was a case in point. An individual could hardly complain
of a violation of human rights simply because he or she was not enjoying good
health. A violation certainly existed if the Government provided no health
care at all, but where the system was not working very efficiently the matter
became political rather than judicial.
29. With regard to the optional protocol, he said that his Government was
not all opposed to the idea, but felt that its practical implications needed
to be carefully investigated. A very cautious approach would have to be
adopted if, on the one hand, the future workload of the Committee was not to
become unmanageable and, on the other hand, if undue politicization of issues
was to be avoided.
30. Replying to a followup
question by Mr. Wimer, he said that individuals
could take the Government to court in the event of forced evictions and many
other situations relating to the Covenant. Not all forced evictions were
violations of the right to housing. In order for the action to succeed, the
plaintiff had to prove that the Government had failed to take account of his
or her individual rights. In some cases brought before the Dutch courts, the
judge had in fact accepted the plaintiff's view.
31. The CHAIRPERSON said that the Committee welcomed the Netherlands
delegation's comments concerning the optional protocol to the Covenant and,
for its part, was prepared to consider any mechanism that would enlist the
Netherlands Government's support. At that stage he merely hoped that the
Government would be favourable to the establishment of a group that would give
careful consideration to various options.
32. Mr. AHMED, referring to article 2, paid a tribute to the wellknown
tolerance of the Netherlands Government and people, but remarked that,
according to information provided by the Dutch section of the International
Commission of Jurists, the United States Department of State, the ILO
Committee of Experts and the Committee on the Elimination of Discrimination
against Women (CEDAW), there was still room for better services and more
expeditious procedures, especially with regard to discrimination.
33. Ms. STAAL (Netherlands) said that her Government was fully aware of the
problems of specific groups such as ethnic minorities, women, the disabled
and the young. A recently adopted new Equal Treatment Act provided for a
stronger supervisory mechanism than its predecessor and specifically
prohibited discrimination on grounds of race, gender, religious or other
convictions, etc. Measures were also being taken to ensure equal
participation of ethnic minorities in the labour market and to prevent
discrimination against disabled persons in the fields of employment and social
security.
34. Mr. POTMAN (Netherlands) drew attention to information on the Equal
Treatment Act and related legislation to be found in paragraphs 190 to 193 of
the core document on the European part of the Kingdom of the Netherlands
(HRI/CORE/1/Add.66). So far as the place of women in the workforce was
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concerned, he referred members to his introductory remarks, in which he had
tried to explain some of the reasons why unemployment figures for women were
higher than those for men.
35. Ms. JIMENEZ BUTRAGUEÑO asked whether the new Equal Opportunities Act
included a prohibition on discrimination on the grounds of age.
36. Mr. ADEKUOYE asked for information about the integration of minorities
in the labour market.
37. Mr. AHMED, referring to information provided by the Dutch section of the
International Commission of Jurists, said that he accepted that members of
ethnic minorities who were not Dutch nationals would be excluded from certain
confidential sectors of the labour market, but wondered whether and on what
grounds they were also excluded from other sectors.
38. Ms. STAAL (Netherlands) said that the Equal Treatment Act did not cover
age, but the Government was in the process of preparing a bill specifically
aimed at combating age discrimination.
39. No details were available on the difficulties encountered in integrating
members of ethnic minorities into the labour market, but they could be
provided at a later stage if the Committee so desired. It was because of
difficulties, however, that the law had been changed. The success or
otherwise of the new Act would be evaluated in due course.
40. Generally speaking, members of ethnic minorities who did not have Dutch
nationality faced a number of restrictions in the labour market. The Ministry
of Justice would only grant a residence permit in the first place to persons
who could prove that they had means of support, i.e. a job, and that their
employer had the necessary work permit. Before issuing such a permit, the
Ministry would ascertain whether the job in question could be done by somebody
already resident in the Netherlands. Non-nationals with permanent resident
status faced no restrictions in the labour market. Although the Foreign
Nationals Employment Act provided that vacancies could be filled by
non-European Union nationals without permanent resident status, it obliged
employers wishing to recruit non-EU nationals to seek the approval of the
Employment Office. Priority in filling vacancies went to EU nationals and
foreign nationals with permanent resident status. If no suitable candidate
was found, the job would be given to a non-EU national, who would be granted a
temporary work permit. After working in the Netherlands for three years, a
person was free to accept any other employment.
41. Mr. POTMAN (Netherlands) said that, as the delegation had already
pointed out to the Committee on the Elimination of Racial Discrimination,
there were two aspects to the racial discrimination issue. The first was the
attitude of the population, which the Government had a moral obligation to
devise policies to combat, and which took time to change, and the second was
that, comparatively speaking, many members of ethnic minorities were in a
weaker socio-economic and educational position than the country's nationals,
which hampered their employment opportunities.
E/C.12/1998/SR.13
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Articles 6 and 7
42. Mr. POTMAN (Netherlands) referring in particular to the position of
disabled persons in the labour market, said that a project entitled “together
at work” had been launched in August 1995 with the objective of training
persons with mental or physical disabilities alongside persons without
disabilities, and to help disabled persons with formal qualifications to find
employment. Another project, spanning the period from December 1995 to
January 2000, was aimed at increasing expertise through pilot projects and, in
time, within all the country's regional training centres. In addition, the
number of disabled students would be increased by up to 20 per cent per year.
A further programme for disabled persons would be introduced once the
experimental phase had ended.
43. The Abolition Malus and Promotion of Reintegration Act had come into
force in January 1996 and was aimed at improving existing regulations and
introducing new stimuli. Other improvements included a revised Sickness
Benefit Act, which made it an obligation for employers to pay 70 per cent of
salary or wages for up to a maximum of 52 weeks of sick leave. That
obligation was waived in the cases of formerly disabled persons to ensure that
employers were not deterred from employing them. The Act also provided for a
wages subsidy of 15 to 25 per cent in the case of a disabled person for the
first four years of employment, a training grant, and an additional training
grant for intensive personal training by an outside expert. Loans of up to
40,000 guilders were available to disabled persons wishing to set up their own
businesses, while those receiving unemployment benefit could retain the
benefit while on a training course.
44. Among the new measures to be introduced was a wage or income supplement
of approximately 20 per cent for disabled persons earning less than the normal
rate because of their disability, and an income supplement for disabled
persons who set up their own businesses. Partially disabled persons receiving
unemployment benefit could work for three months without pay to test their
abilities, while retaining their unemployment benefit.
45. The Reintegration of the Work Disabled Act would enter into force
during 1998 and provide mechanisms and guarantees for employers wishing to
employ disabled persons or rehabilitate disabled employees, while extending
the scope of existing mechanisms. The costs of adapting the workplace to the
needs of disabled persons would be subsidized, and the employer would also be
indemnified against any financial risks, illness or increased disablement on
the part of employees who were disabled prior to taking up their employment.
Any employer paying between 3 and 5 per cent of his wages bill to disabled
employees would have his contributions under the Disablement Benefits Act
reduced.
46. The Disabled Assistance Act for Handicapped Young Persons, which had
come into force on 1 January 1998, provided benefit for young handicapped
persons who became disabled during the course of their studies and who were
not eligible for benefit under the Disablement Benefits Act.
47. With regard to the Committee's first question on article 6 in the list
of issues (E/C.12/Q/NET/1), the Youth Employment Guarantee Act had, in
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January 1998, been merged with the Jobseekers Employment Act, with a view to
preventing long-term unemployment among school leavers, whose chances of
finding work were thoroughly assessed when they signed on at their local
employment office or applied for social benefits. Those lacking basic
qualifications were offered training, work experience and financial incentives
to find regular employment. The old six-month eligibility period for the
jobseekers scheme had been abolished.
48. The low employment rate among the over-50s was due to a combination of
demographic, economic and technological factors. The high post-world war
birth rate had resulted in a large number of young workers entering the labour
market during the recession of the 1970s and early 1980s, whose higher
educational qualifications, up-to-date knowledge and positive attitude towards
technological development made them the obvious choice for employers in the
process of reorganization. At the same time, attractive early retirement
schemes for older workers had been developed.
49. The trend was changing, however. Fewer younger people were entering the
labour market; the number of older employees was increasing, and social
changes would undoubtedly result in people having to work longer before
pensions became payable.
50. Mr. SIBBEL (ILO) said that the ILO's Committee of Experts had commented
on the application in the Netherlands of Convention 122 on Employment Policy
and Convention 100 on Equal Remuneration. In respect of both those
conventions it had stated that the unemployment measures taken by the
Netherlands Government led to the creation of part-time work. In addition,
the Netherlands Federation of Trades Unions had reported to that Committee
that the various flexible employment relationships, mainly entered into by
women, were a source of pay inequality. The Committee of Experts had
subsequently noted the new legislation introduced in 1996, which prevented
discrimination on the basis of working hours, and had also noted the AGFA
judgement, which prohibited discrimination on the same basis.
51. Mr. ANTANOVICH wondered whether, under the new legislative framework
which targeted the long-term unemployed, the short-term unemployed were
neglected. What difference was there between the two groups and what
provisions were there for those who were unemployed for more than three years?
What provisions were there for unemployed members of ethnic minorities?
52. The problem of youth unemployment appeared to be tackled adequately at
the time of entry to the labour force, but what other measures were there for
tackling the problem at a later stage?
53. The 50 per cent unemployment level among the over-50s was somewhat
alarming, as was the Government's apparent acquiescence in measures allowing a
gradual transition from paid unemployment to retirement.
54. The Government's replies to the Committee's questions on article 6 were
confusing. For example, did the merger between the Youth Employment Guarantee
Act and the Jobseekers Employment Act mean that one Act had gained to the
detriment of the other, or did both benefit, and if so, in what way?
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55. Further explanation was also needed of each of the demographic, economic
and technological reasons mentioned as being responsible for the high
unemployment rate among the over-50s, as the report contained no information
at all in that connection. The report also lacked useful information on the
conditions of work dealt with by article 7, apart from an extensive account of
working hours and overtime, which, if intended as a response to questions
regarding safety in the workplace, should also have focused on the number of
accidents, accident insurance, attention to environmental and other hazards
and leisure time activities.
56. Mr. AHMED said that the Dutch section of the International Commission of
Jurists had said that the labour policy of the Netherlands Government did not
help cut unemployment; it had a negative effect, in fact, on account of the
standard 9-hour working day and 45-hour working week, extendable to 10 and
48 hours respectively, which compared unfavourably with the 35-hour working
week being introduced in France. The absolute maximum number of hours,
including overtime, that could be worked each day was 12 and each week 60;
Sunday work was permitted, subject to agreement, for certain sectors and
certain jobs, with exceptions possible under the Working Hours Act. The Dutch
section had also stated that there was room for considerable variation in
daily and weekly working hours over the year, which might result in a
considerable increase in working hours at certain times of the year for
certain sectors of the economy, adversely affecting the employment
opportunities of other workers. What was the reason for the Government's
policy?
57. Ms. JIMENEZ BUTRAGUEÑO asked for details of graduate unemployment, which
was at a high level in many countries, including Spain. Had the problem been
discussed with the universities and what was the Government planning to do to
remedy it?
58. Had any studies been carried out in the Netherlands on employment
opportunities for disabled people, in particular on what were likely to be the
most suitable jobs or professions for the disabled, bearing in mind that they
were capable of equivalent or better performance in some jobs than people who
were not disabled.
59. Mr. CEAUSU endorsed the comments made by Mr. Ahmed in respect of working
hours and wondered why the length of the working day and working week had been
increased. Compared with the figures given in paragraph 96 of the report
(E/1990/6/Add.11), the current standard represented a retrograde step and
might not be consistent with Council Directive 93/104/EC, which had been
mentioned in the Netherlands Government's answers. Why had the Government
considered it necessary to amend legislation that had been more favourable to
employees, and what would be the effect on the system of remuneration of
people working variable hours? How would the Government determine whether
there was equal pay for equal work?
60. Mr. ADEKUOYE asked how many non-resident workers there were in the
Netherlands and what particular difficulties they faced in the labour market.
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61. Mr. POTMAN said that it would be difficult for the delegation to give
concrete replies to the many detailed questions which had been raised. Some
of the information might have to be provided at a later stage.
62. Ms. STAAL said that there appeared to be some confusion about the
figures given for working hours. The normal working week was still 38 hours
and the tendency was for that to decrease. For government employees,
a 36-hour working week was to become standard. The 11-hour day and a working
week in excess of 45 hours included the maximum permitted overtime. The new
Act allowed far fewer exceptions than were possible under the 1990 Act, and
provided for a shorter working week and less overtime.
63. Mr. AHMED said that there was no mention of 38 hours a week in the
commentary of the Dutch section of the International Commission of Jurists.
64. Mr. CEAUSU asked whether the figure of 38 hours for a standard working
week was reflected in any piece of legislation or whether it was simply the
factual situation resulting from common practice.
65. Ms. STAAL (Netherlands) said that the commentary seemed to have confused
normal working hours with overtime: 10 hours a day was only possible as
overtime. The Working Hours Act did not provide for a 10hour
working day in
normal circumstances. In most cases, the 38hour
week was regulated by means
of collective labour agreements between the social partners. The current
trend was towards a 36hour
week. In the negotiations for new collective
agreements, efforts were being made, especially from the trade union side, to
shorten the working week, but 38 hours remained the average.
66. Mr. POTMAN (Netherlands) said that the fact that working hours in the
Netherlands were governed not by legislation but through negotiations between
employers and employees made for a certain flexibility, with arrangements
differing in the various sectors of the economy. It was that margin to
deviate from the norm to which the commentary by the Dutch section of the
International Commission of Jurists referred.
67. Mr. AHMED pointed out that if, with overtime, working hours could extend
to 60 hours a week, those not already in work were apparently being deprived
of their share of employment. Without such lavish overtime, those currently
unemployed might have more chance of employment.
68. Mr. POTMAN (Netherlands) agreed that it was argued in some quarters that
longer hours kept jobs from other workers. In various labour negotiations in
the Netherlands, for example those involving the civil service, shorter hours
had already been accepted in exchange for more jobs. The argument that
shorter working hours would create employment was well known and some efforts
were being made in that direction. He assured the Committee that there were
strict limits on working hours and on the extent of overtime. Those limits
not only protected workers but could create employment opportunities for
others.
E/C.12/1998/SR.13
page 13
69. Ms. STAAL (Netherlands) said that the practice of parttime
work was
widespread in the Netherlands. The reduction of working hours frequently made
time available for parttime
jobs for other workers. Parttime
work was not
reserved for women but was accessible to everyone.
70. Mr. POTMAN (Netherlands) said that the delegation would be in a position
to provide the detailed information requested by Mr. Adekuoye, Mr. Antanovich
and Ms. Jimenez Butragueño at the next meeting.
71. Mr. ADEKUOYE said that, on behalf of Mrs. BonoanDandan
who was absent,
he would like to ask some questions relating to women. He noted that a
1993 study of the civil service had shown that, while 58 per cent of those in
the lowest salary grade were women, the latter accounted for only 9 per cent
in the highest grade. Had there been any improvement in that connection in
the last five years? In addition, in the context of paragraph 95 of the
report, he would like to know the precise nature of the exceptions to
the 1989 Labour Act, in which it had been made legal for women to do certain
jobs which had hitherto been the preserve of men.
72. For himself he would like some information regarding the minimum wage.
It was stated, in paragraph 74 of the report, that the mechanism for adjusting
the level of the minimum wage and social security benefits had been changed.
Since 1991, an Act had been in force that provided for a system linking the
level of minimum wages to the trends in salaries in general not,
he noted,
to trends in the cost of living. The report went on to say that a decree had
been in force since January 1992 making it possible to delink
the minimum
wage from the general trend in salaries. Had there been any such delinking
and, if so, what had been its effect?
73. Mr. POTMAN (Netherlands) said that Mr. Adekuoye's questions would again
require a search for statistics and possible consultations with the capital.
The delegation would try to provide the information as soon as possible.
Article 8
74. Mr. POTMAN (Netherlands), summarizing the written reply to the question
about restrictions on the right to strike in legislation in the Netherlands,
said that there was no specific legislation on the right to strike in either
the public or the private sector and there were, therefore, no specific
restrictions to that right arising out of such legislation. The general
provisions of the Civil Code on unlawful acts could be invoked to have a
strike banned or its duration limited, but much was left to be settled at the
interface between employers and employees.
75. Mr. ANTANOVICH said that, according to paragraphs 102, 103, 104 and 105
of the report, there had been no new developments in regard to trade union
rights. As he understood it, only about 25 per cent of the workforce was
unionized, although unionnegotiated
collective bargaining agreements covered
about threequarters
of the workforce. Thus, the trade union movement was
stationary and, although the right to strike could be exercised freely, the
number of strikes was very low.
E/C.12/1998/SR.13
page 14
76. He asked whether there was any relation between the high rate of
unemployment and the apparent reluctance to strike. If not, what other
explanation was there?
77. Ms. STAAL (Netherlands) said that, so far as any possible relation
between high unemployment and the low number of strikes was concerned, workers
were protected against dismissal and, where a strike was legal, could not be
dismissed for taking part in it. Workers, therefore, possessed enough
protection to be able to strike if they wished to do so. No new developments
had been reported because the law in regard to trade union rights was
unchanged. She might add, in connection with the right to strike, that the
favourable economic situation in the Netherlands in recent years had also had
an effect. In most cases, both employers and unions made every effort to
reach a consensus, in accordance with the socalled
“polder model”.
78. Mr. ANTANOVICH said that the fact that, though only 25 per cent of the
labour force was unionized, threequarters
of collective bargaining agreements
were concluded with the unions, would seem to mean either that the unions were
reaching out beyond their membership and venturing into the part of the labour
force which was not unionized, or that most collective bargaining issues arose
only in that part of the labour force that was unionized.
79. Mr. CEVILLE asked whether labour conflicts resulting in strikes were
resolved directly between the parties or whether Government intervened in the
solution.
80. Mr. POTMAN (Netherlands) said that the fact that no changes had ensued
in the implementation of trade union rights in the reporting period did not
mean that the law prevented people from exercising their rights, but rather
that the system as it stood apparently functioned so well, admittedly within a
conducive economic environment, as to make strikes very rare. The point of
the “polder model” was that the parties were required to negotiate among
themselves and to sort out their own differences. A strike could follow, if
those negotiations failed.
81. Ms. STAAL (Netherlands) said that, as the parties to a labour conflict
normally sought to settle matters directly between them, there was no need for
intervention by the Government or for resort to court action.
82. Ms. JIMENEZ BUTRAGUEÑO pointed out that the only reservation that had
been entered by the Netherlands to the Covenant was in respect of article 8,
paragraph 1 (d), the provisions of which were not accepted in the case of the
Netherlands Antilles.
83. The CHAIRPERSON said that her statement had been noted. The matter
would be taken up at the appropriate time, in connection with the separate
report on the Netherlands Antilles.
Article 9
84. Mr. POTMAN (Netherlands), summarizing the responses to the questions on
article 9, the right to social security, said, in reply to the question about
the completion of the review, that keeping the social security system
E/C.12/1998/SR.13
page 15
uptodate
was a neverending
process. The Invalidity Insurance Act of 1998
made employers financially responsible for any invalidity suffered by their
employees. His country's next report would include information on that Act
and any other similar measures.
85. In response to the question whether the Government was entitled to
refuse minimum subsistence rights to people without a valid permit of
residence, he said that, contrary to what the question suggested, the Linking
Bill did not aim to withdraw minimum subsistence rights from all persons
without valid residence status. The Bill was based on three principles:
first, that regular social security schemes should be open only to foreign
nationals admitted to the Netherlands unconditionally; secondly, that special
arrangements and reception facilities should be established to provide social
security for foreign nationals admitted to the Netherlands provisionally,
including those whose applications were still being processed; and, lastly,
that social security arrangements for foreign nationals who faced expulsion,
and were able to leave the country, should be limited to elementary provisions
such as medical care, free legal aid and children's education.
86. Ms. JIMENEZ BUTRAGUEÑO said that paragraph 108 of the report, which was
all that was devoted to article 9, contained very little information. The
booklet by the Ministry of Social Affairs and Employment, which supposedly
explained the new system in full and was to have been submitted as an annex to
the report, had not been made available to her. She had, therefore, a great
many questions to ask.
87. She understood from the delegation that the new social security system
would emphasize not only rights but responsibilities. Apparently, it was to
be rationalized, as was being done in several other countries, with a view to
saving money and eliminating fraud. She would like to know the precise
details, however, of the changes that would be introduced. Was the new system
of allowances to be more generous or less? Was the age of retirement to be
advanced or put back? Were there to be special provisions for cases of urgent
need, as in the case of foreigners without residence permits? How would
insured workers be affected by the change in the system of health care? Would
the new legislation protect the rights acquired under the old system and was
there to be a transitional period? Would a trend towards earlier retirement
not mean that the pensions system might run out of funds? She would welcome a
detailed explanation by the delegation of all the features of the new system.
The meeting rose at 6 p.m.