29 August 2016, The Netherlands

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29 August 2016, The Netherlands

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Article 6 ICESCR

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

  1. Discrimination of Undocumented Migrants and Asylum Seekers Regarding the Enjoyment of the Right to Work

The Covenant establishes rights which apply to everyone, regardless of citizenship or status. Therefore, the prohibition to work of undocumented migrants and asylum seekers contravenes their right to work and is discriminatory.

The Dutch labour market is only partially open to asylum seekers. For the first six-month of the asylum procedure they have no access to the labour market. After six-month asylum seekers are allowed to work a maximum of 24 weeks per year, on the condition that the employer provides them with a working permit. In addition their right to work is obstructed by the fact that asylum seekers are obliged to move frequently from one asylum centre.74

By Law undocumented adult migrants have no right to work. Employers are fined for employing undocumented migrants: € 8.000,= per undocumented employee. The fine is increased with 50% in case of employment of an undocumented migrant, and other situations.75 Not being able to work makes many irregular migrants feel useless and depressed. It harms their health. The prohibition to work is especially harmful for those migrants – and their family members – who cannot be expelled because of medical reasons. Furthermore, it is harmful for those migrants who are in a regularisation procedure during which they are allowed to stay in the Netherlands or migrants who reside in temporary shelters while preparing their departure.76 As a consequence, undocumented migrants cannot provide for themselves and the future participation in society of asylum seekers is hampered.

Recommendation 18:

The submitting parties recommend the Committee to ask the Dutch Government to reconsider its position on the right to (voluntary) work for asylum seekers and undocumented migrants who cannot be expelled or are allowed to temporarily reside in the Netherlands.

  1. Labour Discrimination of Ethnic Minority Groups of Non-Western Origin (& art. 2 ICESCR)

Structural difference in unemployment rates between citizens of ethnic minority groups of non-Western origin and citizens of Dutch ethnic origin are persisting in the Netherlands. The unemployment rate of citizens of ethnic minority groups of non-Western origin has risen from 8% in 2008 to 17% in 2014, whilst the unemployment rate of the general population has risen from 4% in 2004 to 7% in 2014.77 With regard to ethnic minority youth the difference is even larger. Their unemployment rate has risen from 16% in 2008 to 24% in 2014, whilst the unemployment rate of youth of Dutch ethnic origin has risen from 8% in 2008 to 12% in 2014.78

Several reasons for the difference exist, like the level of education, relevant networks, demographic, and socioeconomic factors. A further factor is discrimination on the labour market, as differences in labour market participation exist that cannot be explained by unequal qualifications.79 Recently, the Dutch government took some encouraging measures to combat labour discrimination, including the National Action Plan against Labour Discrimination, which includes drastic measures to combat discrimination on the labour market80, and a campaign against labour market discrimination81. This may be considered as a good development, considering that in 2015 the Dutch Prime Minister opined that the Government had a minor role to play, and that it was up to an active attitude of discriminated youth.82 Nonetheless, good intentions in the past and in the present have never narrowed the difference in labour market participation. In addition, a very specific concern is that there is very limited data available on intersectional discrimination experienced on the labour market for different groups, which affects policy making in this area. The government has even deliberately stopped measures and policies to assess and address such types of discrimination (‘doelgroepenbeleid’).

Discrimination in the labour market is a crime according to the Dutch Penal Code and requires proof of intent.83 However, the burden of proof of discrimination in offices or businesses is always difficult, as has been noted by Parliament.84 Suspects often defend their actions by claiming that they have not acted deliberately, and it is just a case of ‘bad sense of humour’.85

Recommendation 19:

The submitting parties recommend the Committee to call upon the Dutch government to

  • further the full realization of the right to work of citizens of ethnic minority groups of non-Western origin, taking into account the burden of intersectional discrimination, by implementing clear and concrete targets focused on structurally diminishing the difference between labour market participation of citizens with and without a migration background.

  • investigate the difficulties with regard to the burden of proof of labour discrimination and how they might be addressed, and, if necessary, provide legal training to the different professionals in criminal law, such as public prosecutors and judges.

  1. The Right of Sex Workers to Choose their Own Form of Work (& 9 and 11 ICESCR)

Since the lifting of the ban on brothels in 2000, the number of licensed businesses has radically decreased. This applies in particular to window prostitution: in 1999 there were 2096 registered windows, by 2016 this has declined to 1272. This, among others things, has led to a considerable increase in the rents for a working place. At the same time it has become increasingly difficult for sex workers to work independently or in small collectives without interference of a brothel operator. Lack of licensed working places and prohibitions on working independently force sex workers into the illegal circuit where they are more vulnerable for abusive practices.86 State parties have an obligation to take measures to reduce to the fullest extent possible the amount of workers outside the formal economy.87

In addition, despite the decriminalisation of the sector, sex workers still face problems in accessing financial services, such as a bank account, mortgages and loans, (collective) insurances, payable housing and public services.88 This is partly due to the strong emphasis on trafficking which reinforced the image of a criminogenic sector and increased the stigma on prostitution, adding to the discrimination and social exclusion of sex workers.89 Measures to improve the working conditions of prostitutes and to enhance their autonomy, privacy and safety are badly needed.90

Recommendation 20:

The submitting parties recommend the Committee to

  • recommend that the Dutch government to take measures to halt to the decrease of licensed working places and to ensure that sex workers have a choice to work for a brothel operator, independently or in small self-run collectives.

  • to ask the Dutch government which measures it intends to take to improve the position of sex workers and to ensure their equal access to financial services, insurances and housing.

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  • Discrimination of Undocumented Migrants and Asylum Seekers Regarding the Enjoyment of the Right to Work

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