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.