Direct Request (CEACR) - adopted 2025, published 114th ILC session (2026)

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 121 (employment injury benefits) and 128 (invalidity, old-age survivors’ benefits) together.

Article 14 of Convention No. 121. Assessment of incapacity for work. The Committee previously requested 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 Work and Income (Employment Capacity) Act 2006 (WIA).

In its reply, the Government indicates that the assessment of incapacity for work is based on a loss of earning capacity. The process includes the assessment of the applicant’s health status by a social insurance physician and a labour expert. The labour expert assesses the type of work applicants can still perform given their remaining abilities. For this purpose, the labour expert compares the salary the applicant earned before becoming incapable of work with the median salary of the three selected positions from the Claim Assessment and Guarantee System that could be suitable for the applicant. This represents the theoretical assessment of incapacity for work. The Government further indicates that from 1 July 2024, a practical assessment was introduced as a temporary measure until 1 July 2027, applicable to persons who are still working. Compared to the theoretical assessment, which estimates what the applicant can still earn, the practical assessment examines whether the job the applicant currently performs is suitable for him/her.

The Committee notes the observations of the FNV, the CNV and the VCP, indicating that the lack of a theoretical assessment could lead to the WIA system becoming more unbalanced and detriment the employee’s position. In particular, the FNV, the CNV and the VCP indicate that, under the new procedure, the assessment is based solely on paperwork, without direct contact with a social insurance physician or a labour expert. The assessment now relies heavily on the company doctor, employed by the employer, and cannot be regarded as independent. The FNV, the CNV and the VCP emphasize the need for stronger safeguards and monitoring.

In its reply to the observations of the FNV, CNV, and VCP, the Government indicates that conducting only practical assessments generally results in a higher benefit level compared to theoretical assessments. The Government emphasizes that a practical assessment is done very carefully. While the role of the social insurance physician is smaller compared to the theoretical assessment, it remains important under current arrangements. According to the Government, undertaking the assessment based on the person’s actual work contributes to an adequate assessment of the loss of earning capacity.

The Committee requests the Government to continue to provide information on the methods used to assess incapacity for work, including the outcomes of implementing practical assessments, particularly the number of appeals against assessment decisions, as well as any difficulties encountered and results achieved.

Article 15 of Convention No. 128. Early retirement for workers in arduous and unhealthy occupations. In its previous comments, the Committee noted that 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).

In its report, the Government refers to the 2019 pension agreement, concluded between the Government and social partners, which agreed on the temporary RVU scheme for the period 2021–25. Furthermore, in October 2024, the Government and social partners agreed to extend the RVU scheme aimed at persons in arduous work. According to the Government, this allows employers and employees to make arrangements for early retirement when it is not possible to work healthily until reaching the state retirement age due to arduous work. The Government also indicates that the RVU scheme will be evaluated every three years.

The Committee requests the Government to continue to provide information on the implementation of the RVU scheme in relation to arduous and unhealthy occupations, including its extension in the coming years, the number of collective agreements that include provisions on early retirement, qualifying conditions for entitlement to benefits and their levels, as well as data on coverage.

Observation (CEACR) - adopted 2025, published 114th ILC session (2026)

The Committee notes the observations of the National Federation of Christian Trade Unions (CNV), the Netherlands Trade Union Confederation (FNV), and the Trade Union Federation for Professionals (VCP), received on 28 August 2025, and the Government’s reply to these observations.

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 entitlement to cash benefits under the Work and Income (Employment Capacity) Act 2006 (WIA) was set too high to comply with Article 14 of the Convention.

The Government indicates in its report that when the WIA was introduced, a minimum degree of 35 per cent was set with the expectation that persons with less than 35 per cent work incapacity, known as “35-minners”, could earn enough to support themselves. In this context, both employers and employees share a responsibility to enable “35-minners” to find a job. If their earnings fall short, they can turn to the protection provided by the Unemployment Act or the Participation Act (which covers social assistance benefits). The Government further indicates that, in practice, however, a large part of the “35-minners” are not working. Moreover, the Government indicates that persons with lower incomes before becoming incapacitated for work are often assessed as less than 35 per cent incapacitated compared to those with higher incomes. This is because the assessment takes into account the income lost. The Government further refers to the conclusion of the research carried out at the request of the Ministry of Social Affairs and Employment, highlighting that “35-minners” have a strong need for support. Additionally, according to the Dutch Social and Economic Council and the research undertaken by the Independent Commission on the Future of the Disability System (Onafhankelijke Commissie Toekomst Arbeidsongeschiktheidsstelsel, OCTAS), the minimum degree of incapacity should be below 35 per cent. The Government also indicates that while the decision has not yet been made, it will review the minimum degree of incapacity in the context of reforms to the disability scheme. At the same time, the Government acknowledges that lowering the minimum degree of incapacity will affect the affordability of the disability scheme. More specifically, if more people receive disability benefits, the costs for employers and the Government will increase. Additionally, the pressure on the Dutch Employee Insurance Agency (Uitvoeringsinstituut Werknemersverzekeringen, UWV) will mount, as it will need to conduct more reassessments.

The Committee notes the observations of the FNV, the CNV and the VCP, indicating that, in practice, employers do not hire “35-minners” or dismiss them after two years when the dismissal period ban ends. Regarding protection under the Unemployment or Participation Act, the FNV, the CNV and the VCP indicate that “35-minners” likely receive unemployment benefits for three months to two years. Subsequently, a small percentage qualify for social assistance, while the majority do not because their partners have income or assets exceeding the prescribed limit. According to the FNV, the CNV and the VCP, between 18 and 23 per cent reportedly withdraw from the labour market after receiving unemployment benefits. The FNV, the CNV and the VCP further indicate that persons with severe disabilities and an assessed incapacity of less than 35 per cent (particularly those who have previously had low income) are neither able to find employment nor receive social assistance because of a working partner. The FNV, the CNV, and the VCP specify that just as many people from the “35-minners” group are working as from the group with incapacity of between 35 and 80 per cent. The FNV, the CNV, and the VCP also indicate that, although the Government is exploring ways to ensure that employers hire people with a low disability degree (35 per cent or less), this process is taking too long. Meanwhile, the number of people affected and ending up in poverty continues to rise.

In its reply to the observations of the FNV, the CNV and the VCP, the Government recognizes that people with an incapacity degree of less than 35 per cent can have difficulties with finding a job and/or obtaining an income that is above the subsistence level. Therefore, the Government acknowledges the importance of exploring how better support can be provided to these persons and that attention to this topic has increased over the past few years. The Government indicates that the UWV is currently exploring ways to improve its services for “35-minners”, and that employers and municipalities must also play their part in supporting these people. The Government further recognizes that additional measures are needed, but this process is complex and requires time.

The Committee recalls that according to Article 14 of the Convention, the degrees of disability are classified as minimum, slight (not substantial), substantial and total. The Committee further recalls that the minimum degree below which no cash employment injury benefits can be provided shall be prescribed in such a manner as to avoid hardship (Article 14(5)). The Committee also recalls that the minimum degree should in no case be equal to or higher than a degree of disability defined as slight (not substantial). In this regard, the Committee has previously considered that a degree of disability up to 30 per cent can be considered slight (not substantial), when a lump sum can be provided instead of a periodic payment (Article 14(4)). The Committee also recalls that the slight (not substantial) degree of incapacity refers to cases of minor incapacity for work when the worker retains a large proportion of his or her earning capacity (see the Committee’s 2025 General Survey, Achieving comprehensive employment injury protection, paragraphs 243–245, 249, 274).

The Committee once again notes that, under the WIA, cash employment injury benefits are not provided for incapacity below 35 per cent. It further recalls that the minimum degree of 35 per cent incapacity for entitlement to cash employment injury benefits is not in compliance with the provisions of Article 14 of the Convention. The Committee therefore requests the Government to take the necessary measures in full consultation with the most representative workers’ 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), 19 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 to 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 its reply, the Government indicates that if the recipient of an IVA benefit has additional income from work, 70 per cent of this income will be settled with the IVA benefit. The Government further indicates that in such a case, the recipient’s total income, including the income from work and the reduced IVA benefit, will be higher than the original IVA benefit. According to the Government, as a result, a settlement of income from work with the IVA benefit does not endanger the minimum subsistence level.

The FNV, CNV and VCP indicate that the deduction of income from IVA benefits is not acceptable.

The Committee recalls that the Convention does not authorize any reduction of cash benefits in case a fully incapacitated person earns additional income from a gainful occupation. The Committee further recalls that the Convention requires the provision of cash employment injury benefits in respect of total loss of earning capacity at the level of at least 60 per cent of the standard wage (Article 19 and Schedule II). The Committee therefore requests the Government to take measures to ensure that the IVA benefit would not be less than 60 per cent of the standard wage, in case a person considered completely and permanently incapable for work earns income.

Article 14(3), in conjunction with Articles 9 and 19. Substantial partial loss of earning capacity likely to be permanent. (i) Resumption of Work for Persons with Partial Disability Scheme (WGA) wage-related benefits. The Committee previously noted that the WGA wage-related benefits provided to persons with incapacity for work of between 35–80 per cent do not meet several provisions of the Convention. In particular, the Committee referred to: (i) the entitlement conditions, according to which a person is 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); (ii) the requirement for qualifying period of employment for at least one working hour per calendar week in at least 26 calendar weeks (section 58 of the WIA), and (iii) payment duration, according to which the benefit is paid for at least three months and at most 24 months (section 59 of the WIA).

In its reply, the Government indicates that entitlement to benefits depends on efforts to reintegrate, thereby allowing people who are partially incapable of working to re-enter the labour market more quickly. According to the Government, this promotes greater solidarity within the disability scheme and stimulates people to reintegrate according to their abilities. The Government further indicates that if a person does not receive the WGA benefit in a wage-related phase, he/she will receive the WGA benefit in the follow-up phase.

In its observations, the FNV, the CNV and the VCP indicate that while persons with partial incapacity for work do want to integrate, employers do not hire them. Furthermore, according to the FNV, the CNV and the VCP, the disability scheme does not stimulate persons to reintegrate but instead punishes them.

Recalling the provisions of Article 26(c) of the Convention, the Committee acknowledges the importance of measures to further the placement of persons with disabilities in suitable employment with a view to facilitating their integration into the labour market. The Committee, however, recalls that subjecting the entitlement to cash employment injury benefits to an obligation to make use of the remaining earning capacity is not foreseen by the Convention (Articles 9 and 14(3)). The Committee also 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. Furthermore, the benefit shall be granted throughout the contingency, i.e. the entire period of disability (Article 9(3)). In relation to the Government’s reference to the availability of the WGA benefit in the follow-up phase, the Committee draws the Government’s attention to the issues raised below in this respect. The Committee therefore requests the Government to take the necessary measures to ensure that the WGA wage-related benefits meet the requirements for entitlement conditions, qualifying period and payment duration under Articles 9 and 14(3) of the Convention, should the Government wish to consider the WGA wage-related benefits for the purpose of the application of the Convention.

(ii) WGA wage supplement benefit. Entitlement conditions. 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).

In its reply, the Government indicates that if a person does not receive the WGA wage supplement benefit, he/she will receive the WGA benefit in the follow-up phase, which does not depend on the use of residual earning capacity.

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 (Articles 9 and 14(3)). The Committee 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.

(iii)WGA follow-up benefit. Benefit’s level. The Committee previously observed that the WGA follow-up benefit was a benefit calculated based on the legal minimum wage, rather than as a percentage of the beneficiary’s previous wage. In this regard, the Government indicates that the level of the WGA benefit in the follow-up phase is a strong incentive to use the residual earning capacity. At the same time, the Government indicates that the drop in income for some persons, especially those who want to work but are unable to for various reasons, is significant when they receive the WGA follow-up benefit and may cause hardship. As part of the reforms to the disability scheme, the Government will review the question concerning the possible abolition of this benefit. This would mean that, in the follow-up phase of the WGA, people get a wage supplement benefit.

The Committee notes the observations of the FNV, the CNV and the VCP, indicating that the WGA follow-up benefit, determined as a percentage of the minimum wage, is well below the subsistence level. According to the FNV, the CNV and the VCP, persons are punished by the system if they can’t find work and receive very low follow-up benefits. The FNV, the CNV and the VCP indicate that the OCTAS development plan proposes to abolish the WGA follow-up benefit and introduce a wage supplement benefit 2.0. In particular, this benefit remains linked to the previous salary. According to the FNV, the CNV and the VCP, persons with an assessed low degree of incapacity will still fall far short of the social minimum.

In its reply to the observations of the FNV, the CNV and the VCP, the Government emphasizes that the decision on replacing the follow-up benefit with the wage supplement benefit 2.0 has not been made yet. If the follow-up benefit is abolished, the Government will consider this new situation to ensure that people do not fall below the social minimum.

The Committee 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, to ensure that the level of the WGA follow-up benefit or any other benefits provided in respect of substantial partial incapacity due to employment injury represent a suitable proportion of the benefit provided in respect of total incapacity, in line with the requirements of Articles 14(3) and 19 of the Convention.

Reform of the disability scheme. The Committee notes the Government’s indication that it is currently exploring ways to adjust the Dutch disability scheme to ensure its improvement and simplification. The Government particularly refers to the research on the Dutch disability scheme conducted by the OCTAS in 2023-2024, which concluded that the disability scheme is too complex both for those who depend on it and for those who implement it. In particular, the Government indicates that while for many people, the disability scheme works as it should, for too many others, it causes problems. Moreover, according to the Government, the implementation of the system is under pressure. More specifically, the UWV, which executes the WIA, is dealing with extensive waiting times for social and medical assessments. Additionally, there are issues with the quality of these assessments, leading to some people receiving benefits that are either too high or too low. Addressing these problems increases the pressure on the UWV. The Government further indicates that the initial measures to reform the disability scheme will focus on improving its functioning, while more structural changes are planned for the longer term. The Government emphasizes that this is a long-term process.

In its observations, the FNV, the CNV, and the VCP indicate the developments that have been made in relation to the WIA, including the conduct of the OCTAS research, organization by the Commission on Social Affairs and Employment of a round table meeting on issues concerning the WIA system taken place in Parliament on 8 April 2025, as well as a report elaborated by the Ministry of Social Affairs and Employment to analyse the Dutch disability scheme and the requirements of the Convention. The FNV, the CNV and the VCP emphasize that, despite all the meetings and discussions, little has improved in practice, meaning that their observations and critical remarks about the Dutch disability scheme remain highly relevant. In relation to the Government’s indication concerning the complexity of the disability scheme, the FNV, the CNV, and the VCP emphasize that it is more a matter of many hardships within the scheme than merely its complexity. The FNV, the CNV, and the VCP further highlight that the responsibility for the execution of the WIA primarily lies with the Government.

While taking due note of the Government’s stated intention to reform the disability scheme and the measures undertaken in this respect, the Committee notes once again that the cash benefits provided under the WIA do not ensure the level of protection set out in the Convention on a range of issues. The Committee trusts that the Government will ensure, in full consultation with the most representative workers’ and employers’ organizations, that the Dutch disability scheme complies with the requirements of the Convention in the context of the ongoing reforms. It further requests the Government to provide information on the measures taken and the results achieved in this respect. The Committee also 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.

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.

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

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

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

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

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

With reference to its observation, the Committee notes the Government’s report on Conventions Nos 102, 128 and 130 containing its reply to the direct request of 2012 concerning Convention No. 130, as well as the observations made in this respect by the Netherlands Trade Union Confederation (FNV) dated 30 August and 16 September 2013.

Part II (Medical care) of the report form and Article 13(a) of the Convention. Domiciliary visiting. In reply to the Committee’s previous comments, the Government states that domiciliary visits are covered by the basic insurance coverage, but a general practitioner is not obliged to perform such visits at the request of the insured person unless he or she deems it necessary due to the severity of the condition and the health-care history of the patient. The Committee recalls that the content and scale of medical benefits included in the basic insurance package under the Health Insurance Act are regulated by the Health Insurance Decree and the Health Insurance Ministerial Order. The Committee would like the Government to specify the provisions in these or any other relevant texts which expressly refer to domiciliary visiting by general practitioners, as required by Article 13(a) of the Convention.

Article 13(e). Dental care for adults. The report confirms that dental care for insured persons over 18 years is limited to specialized surgical dentistry (oral surgery), the associated X-rays and dentures, and therefore excludes essential dental care usually provided by dentists, such as preventive advice, check-ups, fillings, root canal treatment, extractions, dental supplies, etc. The FNV observes that most Dutch adults have to pay for dental care out of pocket or buy additional private dental insurance. As a result, the Dutch health-care system does not comply with the Convention. The Committee points out that dental care mentioned in Article 13(e) of the Convention forms part of medical care defined in Articles 8 and 9 in the form of care of a curative and preventive nature afforded with a view to maintaining, restoring or improving the health of the person protected. This definition is obviously much larger than oral surgery covered by the Health Insurance Act and would normally include, as in other European countries, the essential dental care mentioned above. The Committee would like the Government to explain the reasons for leaving the essential dental care outside the basic health insurance coverage and the accessibility of the additional private dental care insurance to persons of small means protected by the Convention.

Effectiveness of medical care. In its previous comments, the Committee noted that the Dutch Government limited its role in overseeing the health insurance to ascertaining whether the private insurer is fulfilling its obligation to provide insured persons with the services they are entitled to under the Health Insurance Act; it consequently pointed 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 interested in reducing the volume and cost of care, may pose a threat to fulfilling the obligation imposed on the Government by Article 9 of the Convention to ensure that the medical care conforms to the highest practicable standard with a view to maintaining, restoring or improving the health of the person protected. The Committee therefore asked the Government to explain whether the Health Care Inspectorate (IGZ), which is entrusted with overseeing the quality of public health, or any other public body has established a system of indicators measuring effectiveness of medical care and monitoring the health status of the population.

In reply, the Government states that since 2007 the project “Zichtbare Zorg” (Visible Care) was set up to develop indicators to measure the quality of health-care provision. Since 1 January 2013, it has been absorbed by the newly established Dutch Quality Institute. The Government further states that the Dutch health-care system uses indicators to measure the quality of the health care provided, but emphasizes that the basic assumption is that patients, health insurers and health-care providers are best placed to determine good, quality health care and therefore make agreements on quality standards. The Committee understands from this statement that in order to determine the quality standards of medical care provided for the population the Government relies on supply and demand outcomes and would like the Government to explain the respective roles played in this process by the Dutch Quality Institute and the Health Care Inspectorate. In order to demonstrate that the Dutch health-care system has not lost its effectiveness after privatization in 2006, the Committee would like the Government to show in its next report, on the basis of the available health statistics and quality indicators for the period 2006–13, that the health status of the Dutch population has been improving.

Part III (Sickness benefit). The report indicates that the conditions for entitlement to sickness benefit after the first year of illness have been made stricter through amendment of the Sickness Benefits Act (ZW) by the new Act limiting sick leave and incapacity entitlement for those covered by safety net provisions, which entered into force on 1 January 2013. Firstly, the existing criterion of the ability to perform “his/her work” (the work performed most recently) was replaced by the criterion applied under the legislation on incapacity for work (WIA), and the ability to perform “generally accepted work”. The FNV observes that this change results in an unacceptable deterioration of protection for workers with temporary employment contracts compared to workers with permanent contracts, creating two types of workers with unequal entitlements to cash benefits in case of sickness. Secondly, similarly to the WIA, entitlement to sickness benefit was divided into two parts: a wage-related benefit and a minimum benefit. The period during which the wage-related benefit is paid will depend on a person’s employment record. However, the introduction of an employment record requirement has been legally postponed to 1 January 2014, while an alternative solution is being sought under the Coalition Agreement. The FNV adds that legislation for withdrawing this requirement is being prepared. Thirdly, the FNV observes that the Government’s report failed to mention the introduction, similarly to the WIA, of the 35 per cent threshold of loss of earnings for eligibility to sickness benefit after one year of illness. Henceforth, those workers who because of illness have lost less than 35 per cent of their earnings are simply no longer considered sick. The FNV finds all of the above three new conditions for entitlement to sickness benefit contrary to the Convention. Recalling that sickness benefit in the Netherlands is payable for a maximum of two years (104 weeks), the Committee notes that the said conditions are introduced after the first year of illness with respect to entitlement to sickness benefit for the second year. The Committee observes that transposing the requirements contained in the WIA with respect to the disability benefit on the sickness benefit changes the nature of the latter so that in its second year of payment it resembles more a disability benefit than a sickness benefit and thus falls outside the scope of the Convention. The Committee recalls, in this respect, that Article 26(1) of this Convention allows for a limitation of the sickness benefit to 52 weeks in each case of incapacity. The Committee asks the Government to confirm that stricter conditions for entitlement and stricter obligations placed on recipients to return to work introduced by the abovementioned Act do not concern the granting of the sickness benefit during the first 52 weeks of incapacity.

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

Article 31 of the Convention. Participative management of the health insurance scheme. In its previous comments, the Committee noted 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 31 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 also provide for the participation of representatives of employers and of the public authorities. Article 30(2) requires the Government to accept general responsibility for the proper administration of the health insurance institutions and providers of medical services, 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. In the light of these explanations, the Government was asked to supply full information on the application of Article 31 of the Convention in the Dutch health insurance scheme. In reply, the Government states that Article 31 “is not applicable to the Dutch health care system”. The Committee understands from this reply that the provisions of Article 31 are not applied in Dutch law and practice and that the Government has no intention of changing this situation. Noting this development with concern, the Committee cannot but observe that the position of the Government perpetuates the violation by the Netherlands of its obligations under a ratified international treaty, which is this Convention.

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

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

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

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

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

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

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

With reference to its previous comments, the Committee notes the information and replies provided by the Government’s report for the period ending 30 June 2011, as well as the more recent information contained in the 45th annual report on the application of the European Code of Social Security for the period ending 30 June 2012. With regard to the issues raised under Part V (Standards to be complied with by periodical payments) of the Convention, which are similar to those raised under Part XI of the Social Security (Minimum Standards) Convention, 1952 (No. 102) and Part XI of the European Code of Social Security, the Committee would like the Government to refer to the direct request it has formulated under Convention No. 102.

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

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

With reference to its previous comments, the Committee notes the information and replies provided by the Government’s report for the period ending 30 June 2011, as well as the observations on the report communicated by the Netherlands Trade Union Confederation (FNV) in September 2011.

Part II (Medical care) of the Convention. Domiciliary visiting. Please indicate under which provisions of the Health Insurance Act care given by the general practitioners includes domiciliary visiting, as stipulated in Article 13(a) of the Convention.

Dental care for adults. The report states that dental care for insured persons aged 22 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 FNV points out that, as described, dental care is limited to oral surgery involving the jaw bone and performed by hospital-based oral surgeons and does not include essential dental care usually provided by dentists, such as preventive advise, check ups, fillings, root canal treatment, extractions, dental supplies, etc. These benefits are not covered by the Health Insurance Act, which, in the opinion of the FNV, is a violation of Article 13(e) of the Convention. The Committee points out that dental care mentioned in Article 13(e) forms part of medical care defined in Articles 8 and 9 as care of a curative and preventive nature afforded with a view to maintaining, restoring or improving the health of the person protected. This definition is obviously much larger than oral surgery covered by the Health Insurance Act and would normally include the dental treatments mentioned by the FNV. The Committee also points out that Article 13(e) covers “dental care, as prescribed”, which means as determined by or in virtue of national legislation (see Article 1(b)). In order to ascertain that the understanding of dental care in the Netherlands conforms to Articles 8 and 9 of the Convention, the Committee asks the Government to specify how the term “dental care” is defined in the national health care legislation and what medical acts and operations are included in the dental care for young persons covered by the Health Insurance Act.

Effectiveness of medical care. The Government stated in its report on the Convention 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 the 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 interested in reducing the volume and cost of care, may pose a threat to fulfilling the obligation imposed on the Government by Article 9 of the Convention to ensure that the medical care conforms to the highest practicable standard with a view to maintaining, restoring or improving the health of the person protected. The Committee therefore asks the Government to explain whether the Health Care Inspectorate (IGZ), which is entrusted with overseeing the quality of public health, or any other public body has established a system of indicators measuring effectiveness of medical care and monitoring the health status of the population.

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 31 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 also provide for the participation of representatives of employers and of the public authorities. Article 30(2) also requires the Government to accept general responsibility for the proper administration of the health insurance institutions and providers of medical services. In its report 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 to be established in national law. 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 on the application of Article 31 of the Convention in the Dutch health insurance scheme.

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

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

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

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

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

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

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 2008, published 98th ILC session (2009)

The Committee has examined the Government’s first report and the relevant legislation, which shows that the provisions of the Convention are largely applied. The Committee has also received comments on the application of the Convention from the Trade Union Federation for Professional and Managerial Staff (MHP), dated 12 August 2008, and from the Netherlands Trade Union Confederation (FNV), dated 29 August 2008, which were also addressed to the Government. The Committee expects the Government to reply to these comments in its next report.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 2007, published 97th ILC session (2008)

With reference to its observation of 2006, the Committee notes the information supplied by the Government in its report, as well as the comments made by the Netherlands’ Trade Union Confederation (FNV).

Part II (Invalidity benefit), Article 10(a) and Article 27 of the Convention. The Committee notes that the amount of the invalidity benefit is calculated in the report under Article 27 on condition that the family of the beneficiary has no other income or social security benefits. As such a condition is not envisaged by this Article, the Government is asked to indicate whether the invalidity benefit provided under the terms of the Work and Income (Employment Capacity) Act of 10 November 2005 (WIA) to a wholly and permanently incapacitated employee (IVA benefit) is means tested and to what extent family income other than the earnings of the beneficiary is taken into account. The Committee further notes that the report gives no information on Article 11 of the Convention. The Government is asked to indicate whether IVA benefit is conditional upon a minimum period of contribution or employment, as well as on the age of the beneficiary when the contingency occurred (previously the initial WAO benefit was not available for disabled workers under 33 years of age), and to provide comparable calculation of the IVA benefit with respect to a beneficiary who has attained the age of 30 years at the time when invalidity occurred.

Part III (Old-age benefit). (a). The Committee notes that, under the National Old Age Pensions Act (AOW), all residents over 65 years of age receive an old‑age pension, which is a fixed amount paid in full after 50 years of residence in the country. The pension accrues from the age of 15 until the age of 65 each year by 2 per cent of the full amount of benefit. Each year during which the person concerned was not insured results in a 2 per cent reduction of the full amount of the pension. The replacement rate of the old-age pension is calculated in the report for the amount of the pension received by couples after 50 years of insurance, in relation to the reference wage of an ordinary adult male labourer determined under Article 27(4)(a) of the Convention. The report gives no information concerning Article 18 of the Convention. The Committee would therefore like the Government to show in its next report that the amount of the Dutch national old-age pension for a married couple composed of a man with dependent wife of pensionable age after 20 years of residence would attain the level of 45 per cent prescribed by the Convention.

(b). The Committee notes the Government’s statement that the Work and Social Assistance Act (WWB) can be taken into account when the calculation of the amount of the national old-age pension is made on the basis of Article 28 of the Convention. The WWB provides a minimum income for all persons residing legally in the Netherlands with inadequate financial resources to meet their essential living costs. Under the WWB, persons over 65 years of age with incomplete national old-age pension are entitled to a top-up benefit, which would increase their pension to the same amount as persons that receive a complete national old-age pension. Married couples are entitled to a benefit related to 100 per cent of the net statutory minimum wage. The Committee also notes that the FNV continues to be in disagreement with the point of view of the Government that the AOW in combination with WWB brings Dutch legislation fully into conformity with Convention No. 128. The FNV is of the opinion that the period of 50 years to qualify to full AOW pension is unacceptably long in comparison with the surrounding countries and given the period during which the entitlements to a complementary pension are built up. On the other hand, the WWB means test is too far-reaching: all income is subject to the means test and only a small amount of additional pension is not taken into account (17.35 euros for a single person and 34.70 for a couple in 2007). The same applies to property, apart from a small amount for savings (5,245 euros for a single person and 10,490 for a family). The FNV is of the view that the exempted amounts are far too low for pensioners who made savings for their old age.

The Committee observes that the scope of persons protected under Part III of the Convention is determined in the report in relation to Article 16(1)(c), which covers all residents, or residents whose means during the contingency do not exceed prescribed limits. Such coverage of the scheme permits to take into consideration benefits provided to all residents, as well as means-tested benefits which are provided as of right to those residents whose means exceed the substantial amounts determined under Article 28 of the Convention. The Committee would therefore invite the Government, if it considers it necessary, to include in the calculation of the level of the old-age benefit requested above any complementary social assistance benefit provided under the WWB to a married couple where both spouses are over 65 years of age and to specify the nature of the means test and the substantial amounts prescribed under Articles 16(1)(c) and 28(b) of the Convention. It recalls in this respect that, notwithstanding the length of the qualifying period laid down in the national legislation for the entitlement to a full pension, the pension at the level guaranteed by the Convention should be paid already after completion of the qualifying period of 30 years of contribution or employment, or 20 years of residence.

(c). The FNV questions whether the regulations regarding the spouse allowance paid to a pensioner for his spouse younger than 65 years of age are in conformity with the provisions of the Convention. The Committee points out that the standard beneficiary for Part III of the Convention is a “man with wife of pensionable age”, whereas the spouse allowance is paid for the wife younger than the pensionable age in the Netherlands.

Part IV (Survivors’ benefit) in conjunction with Part V (Standards to be complied with by the periodical payments). (a). The Committee notes that while ANW survivors’ benefit is a means-tested benefit which covers all residents, the calculation of its replacement level in the report is made on the basis of Article 27, which normally applies to schemes covering employees or economically active population. In establishing the scope of protection of the survivors’ benefit, the report refers to Article 22, paragraph 1(c), of the Convention, which covers residents whose means during the contingency do not exceed limits prescribed in such a manner as to comply with the requirements of Article 28 of the Convention. In this respect the report form on the Convention adopted by the Governing Body gives the following instruction under Article 23(b): “If, in implementing Article 22, recourse is had to the provisions of subparagraph (c) of paragraph 1 for defining the scope of protection, please furnish under this Article information in the form set out in Titles I and IV under Article 28 and in Title I under Article 27.” The Committee would be grateful if the Government would follow this instruction in calculating the level of the survivors’ benefit in its next report in accordance with Article 28 of the Convention. Please explain the means test applied to the survivors’ benefits with respect to the widow and the children of the deceased. With regard to the family allowances paid during employment and during the contingency, please explain whether the child tax credit is paid during the contingency in addition to a semi-orphan pension and how the semi-orphan pension varies according to the age of the child and the income situation of the eventual caretaker of the child.

(b). With respect to the widow’s benefit, the FNV considers that Article 28(b), which allows means testing of benefit only where the means of the family exceed prescribed substantial amounts, is not complied with because the income from the unemployment or invalidity benefit will be fully and not partially deducted from the survivors’ benefit, leaving no substantial amounts at the disposal of the beneficiary. In the light of these comments, please calculate the level of the survivors’ benefit paid to a widow with two children who is in receipt of the unemployment benefit paid on the basis of her previous wage equal to the reference wage determined under Article 27 of the Convention.

(c). The FNV also alleges that the fact that a widow loses her survivors’ benefit the day the youngest child turns 18 is not in accordance with the terms of the Convention. The Committee recalls that, according to Article 21(3)(b), the widow should continue to receive the benefit as long as she is caring for a dependant child of the deceased. It therefore asks the Government to indicate whether an exception is made with respect to children over 18 years of age covered by the Convention in accordance with Article 1(h)(ii).

Part V (Standards to be complied with by periodical payments). The report indicates that the ordinary adult male labourer is selected according to Article 27(4)(a) as “a person deemed typical of unskilled labour in the manufacture of machinery other than electrical machinery”; an ordinary male labourer’s wage is equal to the amount of the statutory minimum wage, which was 1,176.47 euros net per month on 30 June 2007. The FNV points out that no explanation is offered as to why the statutory minimum wage is chosen, as most ordinary adult male workers in the manufacture of machinery earn more than the minimum wage. It also states that the minimum wage was frozen in 2004 and 2005, which was not the case for the real wages of the ordinary workers in the Netherlands. In reply, the Government states that the wage of an ordinary labourer “is the same amount as the minimum wage (on average)”. The Committee recalls that, in accordance with Article 27(7), the wage of the ordinary labourer shall be determined on the basis of the rates of real wages received for normal hours of work fixed by collective agreements, by or in pursuance of national legislation, where applicable, or by custom, including cost‑of-living allowances if any. The Committee would therefore like the Government to provide statistics on the actual rates of wages for normal hours of work in manufacture of machinery other than electrical machinery.

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

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

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

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

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

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous observation which read as follows:

With reference to its previous observation concerning the extensive comments made by the Netherlands’ Trade Union Confederation (FNV), in a letter dated
25 August 2003, on the application of the various provisions of the Convention, the Committee notes the Government’s report for the period 1 June 2003 to 1 June 2005, which replies to some of the issues raised. This report and the replies of the Government were the subject of a further communication from the FNV dated
15 September 2005, in which the Confederation expresses concern about the application of most of the Articles of the Convention and provides copies of the relevant decisions of the Central Court of Appeal (CRvB). This communication was transmitted to the Government by the Office on 20 October 2005. Taking into account that the Government’s report on the application of the Convention is due in 2006, the Committee hopes that it will not fail to provide detailed information on all the points raised, including statistical data, as well as an English translation of the relevant provisions of the legislation. In the meantime, taking into account the extensive and complex nature of the problems raised by the FNV, the Committee wishes to remind the parties that they can have recourse to the technical services of the Office, which might help to clarify the issues in question. In this respect, the Committee also refers to the questions raised in its direct request of 2002, which it will consider together with the Government’s next report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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

With reference to its previous observation concerning the extensive comments made by the Netherlands’ Trade Union Confederation (FNV), in a letter dated 25 August 2003, on the application of the various provisions of the Convention, the Committee notes the Government’s report for the period 1 June 2003 to 1 June 2005, which replies to some of the issues raised. This report and the replies of the Government were the subject of a further communication from the FNV dated 15 September 2005, in which the Confederation expresses concern about the application of most of the Articles of the Convention and provides copies of the relevant decisions of the Central Court of Appeal (CRvB). This communication was transmitted to the Government by the Office on 20 October 2005. Taking into account that the Government’s report on the application of the Convention is due in 2006, the Committee hopes that it will not fail to provide detailed information on all the points raised, including statistical data, as well as an English translation of the relevant provisions of the legislation. In the meantime, taking into account the extensive and complex nature of the problems raised by the FNV, the Committee wishes to remind the parties that they can have recourse to the technical services of the Office, which might help to clarify the issues in question. In this respect, the Committee also refers to the questions raised in its direct request of 2002, which it will consider together with the Government’s next report.

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

The Committee notes the communication dated 25 August 2003 from the Netherlands’ Trade Union Confederation (FNV), which contains extensive comments on the application by the Netherlands of the various provisions of the Convention. This communication, which was transmitted to the Government by the Office on 29 September 2003, contains a copy of the letter addressed by the FNV to the Dutch Ministry of Social Affairs and Employment concerning the Government’s report on the Convention for the period from 1 June 2001 to 1 June 2003. In a letter dated 28 August 2003, the Government informed the Office that it has received FNV’s comments on this report and needs some time to look into the question and to adjust the corresponding parts of its report. The said report was received in the ILO on 20 October 2003. The report however contained no reference whatsoever to the FNV’s comments and up till now no reply to these comments has been received from the Government.

The FNV’s comments concern the application in law and practice of Parts III (Old-Age benefit) and IV (Survivors’ benefit) of the Convention. As far as the General Old-Age Pensions Act (AOW) is concerned, the FNV refers in particular to the advisory opinion solicited by the Parliament from the Dutch Social and Economic Council (SER), which suggested reconsidering the qualifying period for the full AOW benefit (50 years of residence) in view of the international commitments of the Netherlands. The Trade Union Confederation alleges also that some provisions of the General Survivors’ Benefit Act (ANW) do not comply with the requirements of the Convention and that this fact was long brought to evidence by several legal experts, as well as in several important court rulings regarding the ANW, which directly invoked Conventions Nos. 121 and 128, including the decision of the Central Court of Appeal (CRvB) of 4 April 2003. The FNV indicates that after this court’s decision it wrote to members of Parliament and to the Government with an urgent appeal to change the legislation in order to comply with Convention No. 128. As none of these developments has been reflected in the Government’s report, the FNV considers that it is now time for the supervisory bodies of the ILO to express their views.

Taking into account the extensive and complex nature of the problems raised by the FNV, the Committee trusts that the Government will not fail to respond to the allegations made and will provide detailed information on all the points raised, including the text of the relevant documents and court rulings, to enable the Committee to assess the situation at its next session in 2005. The Committee also welcomes the willingness of the FNV to supply additional information on the problems raised. The Committee also refers to the questions raised in its previous direct request, which it will consider together with the future report of the Government.

[The Government is asked to reply in detail to the present comments in 2005.]

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

With reference to its previous comments, the Committee notes the information supplied by the Government in its report on the Convention for the period from 1 June 1996 to 1 July 2001, as well as in its annual reports on the application of the European Code of Social Security (ECSS). In reply to the questions raised in the Committee’s direct request of 1996, the Government supplies in the annex to the report the answers it has provided under the ECSS in 1998 on the same questions which the Committee has already noted in its subsequent conclusions under the ECSS. The Committee has also carefully studied the legislation and supplementary information provided by the Government together with its reports on Conventions Nos. 128 and 102, including the brochures "A short survey of social security in the Netherlands, January 2001", "The Dutch disablement benefits system", the report prepared for Parliament "Efforts to reintegrate the unemployed: An overview", etc. It has taken note of the statistics on the indexation of benefits supplied by the Government under Article 29 of the Convention. It would like to receive additional information on the following points.

Part II (Invalidity benefit) of the Convention. (a) Article 8. In its previous comments, the Committee asked the Government to provide information as to the practical application of the new definition of the contingency contained in section 18 of the Disablement Benefits Act (WAO), which takes into account the remaining labour skills and the capacities of the persons concerned. The Committee notes that the rules to determine the residual capacity and aptitude of the disabled person were laid down in the "evaluation" decree supplied by the Government. It further notes that the level of the disability benefits provided under the General Disability Pensions Act (AAW) and under the WAO depends on the degree of incapacity and that, according to the enclosed brochure "A short survey of social security in the Netherlands, January 2001", under the WAO, seven classes of incapacity are established. In view of the technical nature of these provisions, the Committee would like the Government to specify how the degree of incapacity is taken into consideration and what degree of incapacity has been prescribed for the contingency of "incapacity to engage in any gainful activity", as defined in Article 8 of the Convention.

(b) Articles 10 and 11 (in conjunction with Part V (Standards to be complied with by periodical payments)). In its previous comments, the Committee asked the Government to provide the statistical information on the level of the initial and continuing permanent disability benefit under the WAO. The Committee notes, however, that the calculations given in the Government’s report do not indicate to which benefit they refer - the initial benefit paid during the first stage, which is limited in duration up to six years, or the continuing benefit paid during the second stage, which can last until the retirement age. These calculations simply assume that the benefit amounts to 70 per cent of the reference wages without specifying the degree of incapacity, the age of the beneficiary at the onset of the contingency (workers under 33 years at the onset of the contingency are not entitled to the initial benefit paid during the first stage) and the qualifying period completed. The Government also refers to the additional information contained in the enclosed brochure "A short survey of social security in the Netherlands, January 2001". The Committee notes from this brochure that, the level of the benefit depends on the degree of incapacity and the age of the beneficiary and that for incapacity of 80 per cent or more, the amount of the initial benefit will constitute 70 per cent of 100/108 of the daily wage, and not of the full reference wage. As what concerns the continuing benefit paid during the second stage, its monthly amount is calculated on the basis of the minimum wage augmented by 8 per cent of the holiday allowance and divided by 21.75, plus an additional amount of 2 per cent of the difference between the beneficiary’s last wage and the minimum wage multiplied by the number of years between the age of 15 and the age of the beneficiary at the onset of the contingency. The percentage of the final benefit granted depends on the actual degree of incapacity. The Committee would be grateful if the Government would take these rules into account in calculating the level both of the initial and continuing disability benefits paid to a standard beneficiary who has completed a qualifying period of 15 years of contribution or employment between the age of 15 and the age at the onset of the contingency and whose last wage was equal to the reference wage determined in accordance with Article 26 or 27 of the Convention, as appropriate. The Government is also asked to refer to the comments under Part V below.

(c) With regard to the new provisions introduced in 1998 by the PEMBA Act in the financing of the invalidity insurance scheme for employees established by WAO, the Committee asks the Government to refer to its comments under Convention No. 102.

Part III (Old-age benefit), Articles 17 and 18 (in conjunction with Part V (Standards to be complied with by periodical payments)). The Committee notes that the level of the old-age pension is calculated in the report for the full pension provided to the beneficiary who has completed 50 years of insurance, instead of 30 years of contribution stipulated by Article 18, paragraph 1(a), of the Convention. It further notes that, according to the report, each missing year of contribution results in a 2 per cent reduction in the pension. The Committee understands therefore that, in order to correspond to a qualifying period of 30 years of contribution, the full old-age pension has to be reduced by 40 per cent. In certain cases, the resulting pension may be lower than the minimum social income in force in the Netherlands, in which case the beneficiary would be entitled to a supplement so that the old-age pension is brought up to the level envisaged by the National Assistance Act (ABW). The Committee would be grateful if the Government would indicate the conditions for the provision of this supplementary assistance to pensioners with an indication of whether the supplement is subject to a means test. The Committee hopes that the Government will also be able to provide an updated text of the ABW, with an indication of the relevant provisions.

As regards the exact amount of the benefit, the Committee notes that the amounts of the single person’s pension, couple’s pension and single parent’s pension given on page 5 of the report are lower than the amounts of the same pensions given on page 6. Moreover, both of the indicated amounts of the couple’s pension, which, according to the brochure "A short survey of social security in the Netherlands, January 2001" supplied by the Government, should be equal to 100 per cent of the minimum wage, are either lower or higher than the indicated minimum wage. In view of these inconsistencies, the Committee would ask the Government to recalculate the level of the old-age benefit for a standard beneficiary (man with wife of pensionable age) in its next report, on the basis of updated statistics for the same time frame and with the addition of a monthly amount of the holiday allowance, which is paid once a year. Please refer also to the comments made under Part V below.

Part IV (Survivors’ benefit), Article 21. With reference to its previous comments concerning the new survivors’ benefits scheme (General Surviving Relatives Act), which came into force on 1 July 1996, the Committee notes that the basic assumption of the Government is that a widow or widower should be capable of self-support in cases where there are no obstacles such as family responsibilities or incapacity for work. The category born before 1 January 1950 is considered to be a transitional category, and persons born after this date are considered to have a fair chance on the labour market and are provided with the full range of services for their reintegration into the labour market.

Article 22. According to the statistics given in the report, the number of economically active persons covered by the social security system in 1999 amounted to 7,097,000 and surpassed the total number of economically active persons in the Netherlands (6,364,000), thus increasing the scope of coverage of the survivors’ benefit to 111 per cent. The Committee observes that this data does not make sense. By comparing the data given in the report on the personal coverage of other social security branches, the Committee understands that the figure 6,364,000 refers not to the total number of economically active persons, as it is repeated in the report under Article 16 of the Convention, but to the total number of employees, as stated under Article 9. It would be grateful if the Government would confirm this understanding and provide updated calculation of the number of persons actually covered by the survivors’ benefit.

Article 23. The report states that pay, benefits and family allowance have been calculated on the same time base, i.e. January 1994. The amount of the minimum wage is then given for 1 June 1999, pay index is indicated for the period 30 June 1994-30 June 1999, and the amount of the survivors’ pension is given for the period 30 June 1992-30 June 1994. The Committee further notes that the Government was reporting for the period 1 June 1996-1 July 2001. In this situation the Committee is unable to understand for which period of time the Government calculates the level of the survivors’ benefit. It wishes to point out that such disparate data provided for different time frames inconsistent with the reporting period makes it impossible to calculate the level of the benefit properly and to ascertain whether it attains the minimum level prescribed by the Convention in the period covered by the Government’s report.

As to the statistical data used by the Government to calculate the level of the survivors’ benefit, the benefits’ amounts show a substantial decrease in comparison with the same data given by the Government in its previous report for the year 1994. Thus, the amount of the pension allocated to a widow with children has decreased from 2,419.72 guilders in 1994 to 2,261.34 guilders indicated in the present report, the amount of the family allowance has decreased from 470.40 guilders in 1994 to 390.91, and the amount of the holiday allowance paid to the widow has decreased from 158.25 guilders in 1994 to 118.76. The Committee would like the Government to explain the reasons of this decrease in benefits, if the figures given in the present report are more recent than those given for 1994. In this respect, it notes that the same amounts of the orphan’s pension and of the pension of a widow without children, which in the previous report were indicated for the year 1994, in the present report are given for 1992. As to the exactness of the data, the Committee would also like to point out that the amount of the minimum legal wage on page 5 of the report stands at 2,344.20 guilders, while on page 7 it is one guilder less. The Government might also wish to explain why the basic amount of family allowance applicable to families with two children between 6 and 11 years of age used in the calculation of the level of the invalidity benefit on page 3 of the report constitutes 1,060.10 guilders, while the same allowance in the calculation of the survivors’ benefit on page 7 amounts to only 390.91 guilders. The Committee notes in this respect that, according to the Government’s latest report on Convention No. 102, for the period 1996-2001, the amount of 1,060.10 guilders constitutes the double of the family allowance of 530.05 guilders per child per calendar quarter for families with two children between 6 and 12 years of age at the end of the specified period (unspecified, presumably 1999). As to the second amount of 390.91 guilders, the Committee recalls that this latter amount was cited in the 32nd annual report on the ECSS as the amount of family allowance payable to families with one child between 6 and 12 years of age per calendar quarter in June 1999. The Committee would be glad if in its future calculations of the level of the survivors’ benefit on the monthly basis the Government would use the monthly amount of the family allowance, instead of the quarterly amount as it has been doing previously, payable to families with two children under 6 years of age during the employment as well as during the contingency. Finally, taking into account that the survivors’ benefit include benefit of the surviving spouse, the dependent child allowance, the orphan’s benefit and the gross holiday allowance per month, the Committee would be grateful if the Government would explain in its next report the manner in which the survivors’ benefit for a standard beneficiary of this branch (a widow with two dependent children) is calculated. Please refer also to the comments made under Part V below.

Articles 25 and 33, paragraph 1. The Committee notes that, whereas Article 25 of the Convention requires survivors’ benefit to be granted throughout the contingency, under the terms of section 16, paragraph 1(c), of the General Surviving Relatives Act (ANW), survivors’ benefit comes to an end when the beneficiary reaches the age of 65 years, when he or she is entitled to an old-age pension by virtue of the General Old-Age Pensions Act (AOW). It also notes that, in accordance with section 24(2) of the ANW, the half-orphan allowance payable to a surviving spouse taking care of the child of the deceased also comes to an end when the spouse reaches the age of 65. The Committee recalls in this respect that, in accordance with Article 33(1) of the Convention, when the survivors’ benefit is substituted by the old-age benefit, the person protected shall not suffer a reduction in the amount of the benefit. The Committee would therefore like the Government to show in its next report, on the basis of comparable statistics given for the same time base, that the standard of living ensured to a widow with two children by the survivors’ benefit would not be lowered by its replacement by the old-age benefit. As regards calculation of the level of these benefits, please also refer to the comments made under Articles 17, 23 and Part V of the Convention.

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

[The Government is requested to report in detail in 2003.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Committee notes the information supplied by the Government in its report as well as in the twenty-ninth report on the application of the European Code of Social Security. It also notes the publication of the Ministry of Social Affairs and Employment which contains a brief analysis of social security in the Netherlands. The Committee would like to receive additional information on the following points:

1. Part II (Invalidity benefit) of the Convention. (a) Article 8. The Committee notes that, under section 18, paragraph 1, of the Disablement Benefits 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.

(b) Articles 10 and 11 (in conjunction with Part V (Standards to be complied with by periodical payments)). 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 previous earnings, 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 be asked 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.

2. Part IV (Survivors' benefit). The Committee notes from the publication of the Ministry of Social Affairs and Employment, supplied by the Government, that a new survivors' benefit scheme (General Survivors Act) came into force on 1 July 1996. It would like the Government to provide detailed information in its next report on the implementation of this reform in the light of the relevant provisions of the Convention, stating in particular the manner in which any conditions relating to income which might affect entitlement to survivors' benefit are defined.

3. Part V (Standards to be complied with by periodical payments). Article 29. The Committee notes under the law 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 has noted in relation to the application of the European Code of Social Security, 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 for the reference period, as required by the report form under Article 29 of the Convention.

4. Lastly, the Committee notes that in the last few years, there have been very many amendments to 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 1993, published 80th ILC session (1993)

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

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

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

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

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

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

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

Direct Request (CEACR) - adopted 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.

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

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

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

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

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

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

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

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

The Committee notes with interest the information supplied by the Government in its detailed report and would be grateful if the Government would supply certain additional information on the following points:

1. Part II (Invalidity benefit), Articles 8 to 12. The Government indicates in its report that a revision of the social security legislation has been made in January 1987 and that, with regard to insurance for incapacity to work, invalidity benefits are now only provided in the event of total incapacity of over 80 per cent. It adds that persons suffering partial incapacity to work are entitled to proportional unemployment benefits provided by the special scheme for elderly unemployed persons and workers who are partially incapacitated for work. Furthermore, from that date, the provisions, in the invalidity insurance schemes, concerning minimum daily wage were repealed and replaced by a special law providing for the grant of supplementary benefits intended to bring invalidity benefits up to the minimum social benefit (based on the minimum wage), the rate of which varies according to the family status of the beneficiary, taking into account the beneficiary's occupational income and, where appropriate, that of the spouse.

The Committee notes these indications and requests the Government to supply detailed information on the application of these new provisions and to communicate copies of them (if possible in an English or French translation).

2. Part V (Standards to be complied with by periodical payments): (a) Article 27 (in relation with Articles 17 and 18). The Committee notes with interest that the Act of 28 March 1985, which amends the legislation on general old-age insurance, introduces the principle of equality of treatment between men and women in the context of old-age pensions, and particularly with regard to the benefit rates payable to each spouse benefiting from these pensions. The Committee also notes that under section 9 of the Act the gross level of old-age pensions is a percentage of the net minimum wage serving as a basis for the calculation of the benefits concerned, and it would be grateful if the Government, when compiling statistics on the level of old-age benefits, would take as the reference wage the gross minimum wage.

(b) Article 29. The Committee notes that the Government has once again decided not to adjust the statutory minimum wage to the general trends in wages and is thereby preventing any long-term readjustment of benefits. While being aware of the need to take certain measures to contain the increase in social security costs, the Committee hopes that the Government will make every endeavour to take into account the provisions of the above Article of the Convention and that it will also supply in its next report, together with information on wage indexes, information on the cost of living index.

3. Part VI (Common provisions), Article 32. The Committee notes that under the terms of section 17 of the above Act of 28 March 1985, old-age pensions may be reviewed or withdrawn by the Social Insurance Bank and that the Minister of Social Affairs and Employment may issue rules withdrawing or suspending the grant of such benefits. The Committee requests the Government to indicate the cases (other than those referred to in section 24 of the Act) in which these benefits may be suspended or withdrawn and to supply copies of the rules that may be issued in this connection by the competent Minister. [The Government is asked to report in detail for the period ending 30 June 1990.]