29 August 2016, The Netherlands

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29 August 2016, The Netherlands

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People With Disabilities are More Often Unemployed than People Without Disabilities

The employment rate of disabled persons in the Netherlands is significantly lower than the employment rate of non-disabled persons. The national labour participation rate for women with a disability is 37,1% compared to 59,9% for women without a disability. The labour participation rate for men with a disability is 47,2 % compared to 72,2 % for men without a disability.91 Moreover, these figures demonstrate, that similar to general labour participation, there is a significant gap between participation of disabled men and women, indicating intersectional gender discrimination. Yet, there are no recent programmes or studies that seek to address these figures.

The actual gaps in labour participation of disabled persons are probably even wider, because the national Labour Force Survey includes only persons who are working or who are actively seeking work and can be expected to accept a job offer within short notice. Additionally, persons with an intellectual disability are explicitly excluded from the national Labour Force Survey if they live in residential group homes (this alone excludes 107,31592 people who live in residential settings) or if they seem not to comprehend online forms with questions. The relevance of the exclusion of this group from statistics gains weight because recent changes in the labour market, such as the loss of simple jobs, lead to the exclusion of people with an intellectual disability.93

Furthermore, the new eligibility criteria for The Disablement Assistance Act for Disabled Young Persons (Wajong) since 2015 are such that persons with a disability who are assessed as being partially able to work, are not eligible for assistance. They are referred to schemes based on the Participation Act, run by municipalities. Since 2015 all entry to sheltered employment has been closed. Municipalities have large discretionary freedom to decide on how to spend budgets for the unemployed (with or without a disability) in their municipality. Indications are that jobseekers with a severe or intellectual disability are losing out as they must compete for rehabilitation help (such as job coaching, wage subsidies) with jobseekers without a disability or a lesser disability. In fewer than half of the regional work companies formed by municipalities, priority is given to assisting people with a disability who used to be eligible for sheltered workshop and/or a disability benefit.94 The majority of regional work companies give priority to people without disabilities or only minor disabilities. As a result young people with a more severe disability may not get support in seeking work and become dependent on a means and income tested unemployment benefit (based on Participation Act). If they live with their parents they will receive no cash benefit and will have no income of their own.

Apart from that, few companies can be described as ‘inclusive organizations’, i.e. employers who create scope for people with an employment disability to work long-term and according to their capacity, and who make the necessary adaptations to allow this. Between a quarter and half of employers are unaware of the schemes designed to encourage the recruitment of people with an employment disability, such as the no-risk policy and the wage costs subsidy.95 The State party should take more measures to enable persons with disabilities to secure and retain appropriate employment, thereby facilitating their integration or reintegration into society.96

Recommendation 21:

The submitting parties recommend the Committee to

  • ask the Dutch government to provide more data on (obstacles for) labour market participation of people with disabilities who are not actively seeking work and people with intellectual disabilities, taking into account intersectional discrimination concerns.

  • to enquire how the Dutch government will prevent that local government’s unemployment policies disadvantage people with severe or intellectual disabilities and how the government ensures the involvement of local government in implementing the ICESCR.

  • to call on the Dutch government to take measures to increase the awareness of employers of the schemes designed to encourage the recruitment of people with disabilities.

Article 7 ICESCR

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

a) Remuneration which provides all workers, as a minimum, with:

i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

b) Safe and healthy working conditions;

c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

  1. People With Disabilities Enjoy Less Social Protection And Have Lower Income Than People Without Disabilities

Employers are obliged to pay employees at least the minimum wage.97 However, the Act Wage Dispensation Wajong 2010 makes a general exemption for people who have a disability and who are assessed as having a productivity level of 25% below the usual productivity that would earn the level of minimum wage. In such cases the employer may pay below minimum wage. The employee will then get a benefit supplementing the wage to the net minimum wage level. The European Committee of Social Rights has noted that in some instances the minimum wage seems to decrease in case of severe economic adversity in certain enterprises or sectors in the Netherlands.98 In response, the government stated that this refers only to employers who have applied to the ministry of Social Affairs and Employment for an exemption from the ban on short-time working. If an exemption is granted, they may claim unemployment benefit for their employees for the hours not worked. Finally, the state claims that “this scheme never results in employees earning less than the statutory minimum wage for the hours they do work. In the Netherlands, it is impossible to lower the statutory minimum wage – by legal means or otherwise – in times of economic crisis.” 99 The government makes no mention of the exemption for Wajong receivers nor to any other issue related to disability.

Related to this is the observation that the average disposable income of people with (physical) disabilities in the Netherlands amounts to €1427 per month, compared to an average disposable income of €1950 for the general population.100 One in 5 interviewees in a study by the research institute NIVEL reports that they participate less in society due to money problems.101 The gap between the income development between households without and households with a disability benefit has widened considerably since 2000.102 In 2015 and 2016, the income gap between persons with and without a disability widens more as a result of higher obligatory contributions for health care, social support by municipalities, and long term care, while former tax credits have diminished. The higher obligatory contributions result in a net income decrease for people with disabilities of up to -12 % in 2016.103 The State party should ensure that people with disabilities “enjoy equal remuneration for work of equal value and must not suffer wage discrimination due to a perceived reduced capacity for work.”104

Recommendation 22:

The submitting parties recommend the Committee to ask the Dutch government to explain why it makes an exemption with regard to the minimum wage for people with disabilities and to enquire what measures it intends to take in order to diminish the income gap between people with and without disabilities.

  1. Domestic Workers Still Do Not Enjoy Full Just and Favourable Work Conditions and Full Social Rights (& 9 ICESCR)

In its report, the government suggests there have been changes representing a first step towards improving the status of domestic workers,105 referring to the Committee’s call on the Dutch government to bring the rights and benefits of domestic workers in line with those accorded to other workers, particularly in terms of social security benefits.106 In reality, no changes in the legal position of domestic workers (with respect to rights and benefits) have been implemented by the government. The Netherlands remains the only European country that denies domestic workers social rights. The exceptional position of part-time domestic workers - since 2007 called Services at Home Scheme (SHS) - is still in place. The advisory committee (mentioned in para. 57 of the governments’ report) strongly recommended to ban the use of the SHS in the publicly financed home care.107 In reality the opposite happened: the number of home care workers under the SHS almost doubled due to decentralisation accompanied by budget cuts. Thousands of home care workers lost their jobs. Several of them could only resume working for their clients with less social protection under the Services at Home Scheme (as so-called alfahelps).108 A Dutch Court of Appeal as well as the Central Appeals Tribunal ruled that the use of the Services at Home Scheme by the home care institutions was not in accordance with Dutch labour legislation. Both found that not the client but the home care institution had to be considered as the proper employer, meaning that the alfahelps were entitled to full workers’ rights.109 The government should have used this jurisprudence to claim taxes and social contributions from the home care institutions that falsely pretended only to act as intermediaries between the alfahelps and clients. Unfortunately, the government remained inactive but for a short publicity campaign to inform private employers and domestic workers about rights and obligations. However, there is no indication or evidence that this campaign really improved the status of domestic workers.110

Recommendation 23:

The submitting parties recommend the Committee to urge the Dutch government to ensure that the rights and benefits of domestic workers are brought in line with those accorded to other workers in accordance with national jurisprudence and international law.

  1. Eastern European Migrant Workers Do Not Enjoy Just And Favourable Working Conditions

Notwithstanding a number of measures taken by the Dutch Government in 2011 to ameliorate the working conditions of Eastern European migrant workers, they are still confronted by long working days, unpaid overtime, sexual intimidation and threats. As Eastern European migrant workers are highly dependent on recruitment agencies, they are extremely vulnerable to exploitation.111 They face discrimination and do not enjoy the same working conditions as Dutch national workers.112 The work pressure is extremely high, with the result that many workers use drugs in order to keep up.113 Furthermore, “the demand for highly flexible labour, which has to be available instantly and at minimal expense, generates a culture in which workers are expected to be available for any job at any time”.114 Still, the Dutch government continues to permit the recruitment agencies to regulate themselves.115 It doing so it disregards that it is responsible to ensure that migrant workers enjoy treatment that is no less favourable than that of national workers in relation to remuneration and conditions of work, in addition to just and favourable conditions.116 In terms of the gender implications, it is important to note that over half of labour immigrants from South and Eastern Europe are women.117 NGOs have indicated that there exists a gap in policy and measures to address issues that this group of women migrants are dealing with.118 The problems they encounter include unemployment or underemployment, unstable jobs, dependency on their employer for both income and housing, and lack of language proficiency. A few municipalities have started to take measures in these areas, but so far a gender perspective has not been taken into account.119

Furthermore, the labour inspection not only monitors compliance with the law concerning working conditions, but also conducts migration and fraud controls. These different aims may lead to reluctance among workers to report problems, which obstructs the identification of unacceptable working conditions and victims of labour exploitation.120 A recent study shows that confusing immigration policing facets and labour rights facets of inspections is one of the largest barriers to identifying abuse.121

Recommendation 24:

The submitting parties recommend the Committee to ask the Dutch government to better regulate recruitment agencies and to reintroduce labour inspections that are merely focused on fostering acceptable working conditions - disconnected from migration and fraud controls.

The submitting parties also recommend the Committee to ask the Dutch government to take intersectional discrimination into account in studies and measures to better understand and improve the labour conditions for EU migrants.

  1. Racial Harassment Of Black Professional Football Players (& 2 ICESCR)

The state has to ensure that all workers are free from harassment, including discrimination.122 However, over the past few years there have been several incidents of racism by football supporters directed towards black professional football players.123 Racial harassment of black professional football players appears to be a structural phenomenon. Within Dutch football, racial harassment, hate speech, and discrimination are addressed through ‘disciplinary proceedings’ involving a special prosecutor of the Dutch Football Association (KNVB) who may issue settlement agreements including stadium bans for the perpetrator and fines for the football club.124 However, incitement to hatred and incitement to discrimination are also criminal offences (pursuant to Article 137d of the Dutch Penal Code) and in certain cases, criminal prosecution may be more appropriate than disciplinary proceedings. The Dutch prosecutor generally only prosecutes these crimes if the victim files a complaint with the police, which in most cases does not happen.125

Recommendation 25:

The submitting parties recommend the Committee to urge the Dutch government provide effective legal protection against hate speech and discrimination in Dutch football regardless of an individual complaint.

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  • Article 7 ICESCR
  • People With Disabilities Enjoy Less Social Protection And Have Lower Income Than People Without Disabilities

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