Demande directe (CEACR) - adoptée 1997, publiée 86ème session CIT (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.