European Social Charter (revised) European Committee of Social Rights. Conclusions 2011 (THE NETHERLANDS)

Transcription

1 January 2012 European Social Charter (revised) European Committee of Social Rights s 2011 (THE NETHERLANDS) Articles 7, 8, 16, 17, 19, 27 and 31 of the Revised Charter This text may be subject to editorial revision.

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3 Introduction The function of the European Committee of Social Rights is to rule on the conformity of the situation in States with the European Social Charter. In respect of national reports, it adopts "conclusions" and in respect of collective complaints, it adopts "decisions". A presentation of this treaty as well as statements of interpretation formulated by the Committee appear in the General Introduction to the s. 1 The present chapter on the Kingdom of the Netherlands contains three subsections: The Netherlands (Kingdom in Europe) The Netherlands (Netherlands Antilles) The Netherlands (Aruba) As of 10 October 2010, the Netherlands Antilles ceased to exist as a country. Since then, the Kingdom of the Netherlands consists of four countries: the Netherlands, Aruba, Curaçao and St Maarten, and the islands of Bonaire, St Eustatius and Saba have the status of 'special municipalities' within the Netherlands. The Netherlands (Kingdom in Europe) The Revised European Social Charter was ratified by the Netherlands on 3 May The time limit for submitting the 4th report on the application of this treaty to the Council of Europe was 31 October 2010 and the Netherlands submitted it on 25 January Comments on the report from a group of Dutch NGOs were submitted on 29 October 2010 and the Government submitted a response to these comments on 4 July This report concerned the accepted provisions of the following articles belonging to the thematic group "Children, families and migrants": the right of children and young persons to protection (Article 7), the right of employed women to protection of maternity (Article 8), the right of the family to social, legal and economic protection (Article 16), the right of mothers and children to social and economic protection (Article 17), the right of migrant workers and their families to protection and assistance (Article 19), the right of workers with family responsibilities to equal opportunity and treatment (Article 27), the right to housing (Article 31). The Netherlands (Kingdom in Europe) has accepted all the Articles from this group with the exception of Article The reference period was 1 January 2005 to 31 December 2009 for Articles 16 and 19, 1 January 2003 to 31 December 2009 for Articles 7 and 8, 1 July 2006 to 31 December 2009 for Articles 17, 27 and 31. The sub-section on the Netherlands (Kingdom in Europe) concerns 35 situations and contains: 19 conclusions of conformity: Articles 7 1, 7 2, 7 4, 7 7, 7 8, 7 10, 8 1, 8 2, 8 3, 16, 19 1, 19 2, 19 3, 19 5, 19 7, 19 9, 19 11, 27 1 and 27 2 ; 9 conclusions of non-conformity: Articles 7 3, 7 5, 7 6, 7 9, 17 1, 19 6, 19 8, and In respect of the other 7 situations concerning Articles 8 4, 8 5, 17 2, 19 4, 27 3, 31 1 and 31 3, the Committee needs further information in order to assess the situation. The Government is therefore invited to provide this information in the next report on the articles in question. 3

4 The next report from the Netherlands deals with the accepted provisions of the following articles belonging to the first thematic group "Employment, training and equal opportunities": the right to work (Article1), the right to vocational guidance (Article 9), the right to vocational training (Article 10), the right of persons with disabilities to independence, social integration and participation in the life of the community (Article 15), the right to engage in a gainful occupation in the territory of other States Parties (Article 18), the right of men and women to equal opportunities (Article 20), the right to protection in cases of termination of employment (Article 24), the right to workers to the protection of claims in the event of insolvency of the employer (Article 25). The deadline for the report was 31 October The Netherlands (Netherlands Antilles) The European Social Charter was ratified by the Netherlands with respect to the Netherlands Antilles on 22 April The time limit for submitting the 10th report on the application of this treaty to the Council of Europe was 31 October 2010 and it was submitted on 10 May This was the last report of the Netherlands with respect to the Netherlands Antilles. The report concerned the accepted provisions of the following articles belonging to the thematic group "Children, families and migrants": the right of children and young persons to protection (Article 7), the right of employed women to protection of maternity (Article 8), the right of the family to social, legal and economic protection (Article 16), the right of mothers and children to social and economic protection (Article 17), the right of migrant workers and their families to protection and assistance (Article 19). The Netherlands with respect to the Netherlands Antilles has accepted Article 16 from this group. The reference period was 1 January 2005 to 31 December The sub-section on the Netherlands with respect to the Netherlands Antilles concerns 1 situation and contains : 1 conclusion of non-conformity: Article 16. The first reports from Curaçao and St. Maarten deal with the accepted provisions of the following articles belonging to the first thematic group "Employment, training and equal opportunities": the right to work (Article1), the right to vocational guidance (Article 9), the right to vocational training (Article 10), the right of persons with disabilities to independence, social integration and participation in the life of the community (Article 15), the right to engage in a gainful occupation in the territory of other States Parties (Article 18), the right of men and women to equal opportunities (Article 1 of the Additional Protocol). 4

5 The deadline for the reports was 31 October 2011 The Netherlands (Aruba) The European Social Charter was ratified by the Netherlands with respect to Aruba on 22 April The time limit for submitting the 5th report on the application of this treaty to the Council of Europe was 31 October 2010 and it was submitted on 17 December The report concerned the accepted provisions of the following articles belonging to the thematic group "Children, families and migrants": the right of children and young persons to protection (Article 7), the right of employed women to protection of maternity (Article 8), the right of the family to social, legal and economic protection (Article 16), the right of mothers and children to social and economic protection (Article 17), the right of migrant workers and their families to protection and assistance (Article 19). The Netherlands with respect to Aruba has accepted Article 16 from this group. The reference period was 1 January 2005 to 31 December The sub-section on the Netherlands with respect to Aruba concerns 1 situation and contains : 1 conclusion of non-conformity: Article 16. The next report from Aruba deals with the accepted provisions of the following articles belonging to the first thematic group "Employment, training and equal opportunities": the right to work (Article1), the right to vocational guidance (Article 9), the right to vocational training (Article 10), the right of persons with disabilities to independence, social integration and participation in the life of the community (Article 15), the right to engage in a gainful occupation in the territory of other States Parties (Article 18), the right of men and women to equal opportunities (Article 1 of the Additional Protocol). The deadline for the report was 31 October The conclusions as well as state reports can be consulted on the Council of Europe's Internet site ( 5

6 Article 7 - Right of children and young persons to protection Paragraph 1 - Prohibition of employment under the age of 15 The report states that there are no new developments to the situation which the Committee, in its previous conclusion, found to be in conformity with Article 7 1 of the Charter. The Committee takes note of the inspections carried out by the Labour Inspectorate, during the reporting period, and the violations found, as described in the report. It notes that there have been 1200 inspections in 2009, over 1000 inspections in 2008, 761 inspections in 2007, 1600 inspections in 2006 and 1350 inspections in The inspected enterprises included different economic sectors such as agricultural and horticultural industries, tourism, health care, newspaper distribution depots, retail trade, wholesale/distribution centers and stores, etc. The Committee concludes that the situation in Netherlands is in conformity with Article 7 1 of the Charter. Article 7 - Right of children and young persons to protection Paragraph 2 - Prohibition of employment under the age of 18 for dangerous or unhealthy activities The report states that there are no new developments to the situation which the Committee, in its previous conclusion, found to be in conformity with Article 7 2 of the Charter. The Committee takes note of the inspections carried out by the Labour Inspectorate, during the reporting period, and the violations found, as described in the report. It notes the report of 2008, of the Labour Inspectorate, on the high incidence of accidents with farm machinery involving children under 16. It asks that next the report contains an update on the findings of the Labour Inspectorate. The Committee concludes that the situation in Netherlands is in conformity with Article 7 2 of the Charter. Article 7 - Right of children and young persons to protection Paragraph 3 - Prohibition of employment of children subject to compulsory education The Committee recalls that Article 7 3 guarantees the right of every child to education by safeguarding its capacity to learn. Only light work is permissible for schoolchildren under this provision. Adequate safeguards must be in place to allow the authorities (labour inspectorate, social and education services) to protect children from work which could deprive them of the full benefit of their education. The report states that there are no new developments to the situation which the Committee, in its previous conclusion, found not to be in conformity with Article 7 3 of the Charter on the grounds that: children aged 15, still subject to compulsory education, are allowed to work for more than half of the long summer school holidays; it is possible for children aged 15, still subject to compulsory education, to deliver newspapers from 6 a.m. for up to 2 hours per day, 5 days per week before school. 6

7 As regards the first ground of non-conformity, the Committee has reconsidered its case law and it refers in this respect to the interpretative statement on Article 7 3 in the General Introduction. The Committee notes that pupils aged 15 in compulsory full-time education in the Netherlands are permitted to work a maximum of six weeks during the holidays, but not more than 4 weeks consecutively and that the summer holidays in the Netherlands last for eight weeks. The Committee also notes that the annual length of school holidays in the Netherlands amounts to a total of 12 weeks and that thus the annual rest period (six weeks) equals half of the period of annual school holidays. As noted in the interpretative statement, the Committee considers that an uninterrupted period of rest which should under no circumstances be less than two weeks, must be provided for during summer holidays. As this is not the case, it considers that the situation is not in conformity with Article 7 3 of the Charter. The Committee also notes that the law still allows young persons aged 15 years subject to compulsory education to deliver newspapers from 6 a.m. onwards for up to two hours on school days, 5 days per week before school, a practice which it has previously held not to be in conformity with the Charter. The Committee takes note of the information provided by the Government on a study on the impact the delivery of morning papers has on the schoolwork of 15-year-olds carried out in According to the report, nothing in the study indicates that young persons aged 15 years who deliver newspapers have poorer school results than young persons not so working. The Committee underlines, as it has held previously, that such a study cannot assess whether these pupils would have had better results if they were not working. It therefore considers that the study does not provide sufficient evidence that children aged 15 and still subject to compulsory education who do morning paper routes are not deprived of the full benefit of education. The Committee recalls that, during school term, the time during which children may work must be limited so as not to interfere with their attendance, receptiveness and homework. Allowing children to work before school begins in the morning is, in principle, contrary to Article 7 3. It considers that allowing children aged 15 and still subject to compulsory education to deliver newspapers from 6 a.m. for up to 2 hours per day, 5 days per week before school is not in conformity with the Charter. The situation remaining the same, the Committee renews its conclusion of non conformity. The Committee concludes that the situation in the Netherlands is not in conformity with Article 7 3 of the Charter on the grounds that: children aged 15, still subject to compulsory education, are not guaranteed the benefit of an uninterrupted rest period of at least two weeks during summer holidays; it is possible for children aged 15, still subject to compulsory education, to deliver newspapers before school from 6 a.m. for up to 2 hours per day, 5 days per week. Article 7 - Right of children and young persons to protection Paragraph 4 - Working time for young persons under 18 The report states that there are no new developments to the situation which the Committee, in its previous conclusion, found to be in conformity with Article 7 4 of the Charter. The Committee takes note of the inspections carried out by the Labour Inspectorate, during the reporting period, and the violations found, as described in the report. It notes that the activity of the Labour Inspectorate included among others also inspections on the compliance of enterprises with the Working Hours Act. 7

8 The Committee concludes that the situation in the Netherlands is in conformity with Article 7 4 of the Charter. Article 7 - Right of children and young persons to protection Paragraph 5 - Fair pay The Committee recalls that the fair or appropriate character of the wage is assessed by comparing young workers' remuneration with the starting wage or minimum wage paid to adults. The young worker s wage may be less than the adult starting wage, but any difference must be reasonable and the gap must close quickly. For fifteen/sixteen year-olds, a wage of 30% lower than the adult starting wage is acceptable. For sixteen/eighteen year-olds, the difference may not exceed 20%. The adult reference wage must in all cases be sufficient to comply with Article 4 1 of the Charter. If the reference wage is too low, even a young worker s wage which respects these percentage differentials is not considered fair. As to the apprentices, they may be paid lower wages, since the value of the on-the-job training they receive must be taken into account. However, the apprenticeship system must not be deflected from its purpose and be used to underpay young workers. Accordingly, the terms of apprenticeships should not last too long and, as skills are acquired, the allowance should be gradually increased throughout the contract period: starting from at least one-third of the adult starting wage or minimum wage at the commencement of the apprenticeship, and arriving at least at two-thirds at the end. The report states that there are no new developments to the situation which the Committee, in its previous conclusion, found not to be in conformity with Article 7 5 of the Charter on the ground that young workers wages and apprentices allowances were not fair. However the report states that on 4 May 2007 the statutory minimum wage became applicable to young workers and even when it has not been applied the Labour Inspectorate can give effect without the young worker having to go through recourse to courts. The report states that young people under the age of 23 are entitled to a given percentage of the minimum wage for employees aged 23 and over. This percentage rises from 34% for 15-year-olds to 85% for 22-year-olds. In 2008, the minimum wage of a 15 year old was 407, while the minimum wage of a 23 year old was 1,357. The Committee considers that the gap between the minimum wages of a young worker and an adult is manifestly disproportionate. It finds that the situation remains still unsatisfactory to meet the requirements under Article 7 5 and therefore renews its conclusion of non conformity. The Committee concludes that the situation in the Netherlands is not in conformity with Article 7 5 of the Charter on the ground that: young workers wages are not fair; and apprentices allowances are not fair. 8

9 Article 7 - Right of children and young persons to protection Paragraph 6 - Inclusion of time spent on vocational training in the normal working time The Committee recalls that, under Article 7 6, time spent on vocational training by young people during normal working hours must be treated as part of the working day. Such training must, in principle, be done with the employer's consent and be related to the young person s work. Training time must thus be remunerated as normal working time, and there must be no obligation to make up for the time spent in training, which would effectively increase the total number of hours worked. This right also applies to training followed by young people with the consent of the employer and which is related to the work carried out, but which is not necessarily financed by the latter. The report states that there are no new developments to the situation which the Committee, in its previous conclusion, found not to be in conformity with Article 7 6 of the Charter on the ground that there is no evidence that the great majority of young workers have a right to remuneration for time spent on vocational training with the consent of the employer. The report states that current Dutch legislation does not oblige employers to continue paying wages when employees receive vocational training outside the workplace. However, the social partners may agree in the collective agreement for the industry or business concerned that training time will be remunerated. A 2008 survey by the Labour Inspectorate showed that 104 of the 115 collective agreements examined contained agreements about training. 26 of the collective agreements dealt specifically with block or day releases and provided that the training time would be wholly or partly remunerated. The report adds that although time spent on vocational training is deemed to be working time, it does not necessarily mean it should also be remunerated. The Committee considers that the situation continues to be unsatisfactory under the requirements of Article 7 6 and therefore renews its conclusion of non conformity. The Committee concludes that the situation in the Netherlands is not in conformity with Article 7 6 of the Charter on the ground that it has not been established that the great majority of young workers have a right to remuneration for time spent on vocational training with the consent of the employer. Article 7 - Right of children and young persons to protection Paragraph 7 - Paid annual holidays The report states that there are no new developments to the situation which the Committee, in its previous conclusion, found to be in conformity with Article 7 7 of the Charter. The Committee takes note of the inspections carried out by the Labour Inspectorate, during the reporting period, and the violations found, as described in the report. It notes that in 2007, the majority of infringements involved, among others, breaches of rules on rest periods, for which fines were imposed. The Committee asks whether this comprises also breaches of rules on annual paid holidays for young workers. Pending receipt of the information requested, the Committee concludes that the situation in the Netherlands is in conformity with Article 7 7 of the Charter. 9

10 Article 7 - Right of children and young persons to protection Paragraph 8 - Prohibition of night work The report states that there are new developments to the situation which the Committee, in its previous conclusion, found to be in conformity with Article 7 8 of the Charter. The Committee takes note of the inspections carried out by the Labour Inspectorate, during the reporting period, and the violations found, as described in the report. It notes that the activity of the Labour Inspectorate included among others also inspections on the compliance of enterprises with the Working Hours Act and early morning visits were paid to newspaper distribution centers. The Committee concludes that the situation in the Netherlands is in conformity with Article 7 8 of the Charter. Article 7 - Right of children and young persons to protection Paragraph 9 - Regular medical examination The report states that there are no new developments to the situation. The Committee recalls that, in application of Article 7 9, domestic law must provide for compulsory regular medical check-ups for under-eighteen year olds employed in occupations specified by national laws or regulations. These check-ups must be adapted to the specific situation of young workers and the particular risks to which they are exposed. The obligation entails a full medical examination on recruitment and regular check-ups thereafter. The intervals between check-ups must not be too long. In this regard, an interval of three years has been considered to be too long by the Committee. In its last conclusion the Committee noted that there was no general mandatory medical examination for workers under 18 years of age and noted that there was no information on the situation in practice. It reiterated its request for up-dated information on how and by whom the risk inventory and assessment was made, and insisted on receiving information confirming that medical examinations were periodical. In reply, the report explains that employers have a statutory duty to give employees the opportunity to undergo a medical examination. However, what is most relevant under this provision, there is no corresponding duty for employees to submit to such an examination. The report states also that there are no data available on the use made by young workers of the opportunity to undergo medical examinations. The situation remaining the same in law and with no data on the practice, the Committee considers that the situation is not in conformity with Article 7 9 of the Charter. The Committee concludes that the situation in the Netherlands is not in conformity with Article 7 9 of the Charter on the grounds that: there is no general mandatory medical examination for workers under 18 years of age; it has not been established that regular medical examination of young workers is guaranteed in practice. 10

11 Article 7 - Right of children and young persons to protection Paragraph 10 - Special protection against physical and moral dangers The Committee takes note of the information contained in the report submitted by Netherlands. Protection against sexual exploitation The Committee notes from the report that the situation which it has previously considered to be in conformity with the Charter has not changed. In reply to the Committee's question the report states that following the amendments, the Article 240b of the Criminal Code provides for longer maximum sentence where for the possession, production, distribution of child pornography is habitual or for gain. The Committee also notes from the report that the Government is taking steps to improve the system for recording data on child prostitution. Since 2008 Rotterdam has a social worker specifically responsible for helping boys who are being exploited in prostitution. The Committee notes from another source 1 that in its priority actions required ECPAT names strengthening of the capacities of law enforcers and the judiciary to enable the police to identify potential victims with a view to preventing their exploitation. Besides, child sex tourism can only be properly tackled if there is more active involvement on the part of trade organisations and the Government to promote corporate social responsibility in outbound tourism. Moreover, according to ECPAT, the sexual exploitation of children, including child sex tourism, should be addressed in the curricula of various training courses, such as those for social workers, educators, health professionals and law enforcers. The Committee asks what measures are taken to reduce risks of sexual exploitation relating to sex tourism. Protection against the misuse of information technologies In its previous conclusion the Committee asked what measures were taken to protect children against the misuse of information technologies. In reply the report states that following the ratification of the Council of Europe's Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse criminal legislation has been amended so that the offence in respect of child pornography has been widened to include 'obtaining access to child pornography'. A new provision has been introduced to make 'grooming' a criminal offence. According to Article 248e of the Criminal Code any person who proposes through the use of information and communication technologies to meet a person whom he knows has not yet reached the age of sixteen (the age of sexual consent) with the intention of committing indecent acts will be liable to a term of imprisonment of not more than two years. The Committee notes from ECPAT that structured and continuous awareness raising among children on how to use internet communication safely is needed. Ideally, according to ECPAT preventing sexual exploitation should be incorporated in the school curriculum, with sex education and assertiveness training, beginning at primary school. The Committee asks what measures are taken in this respect. Protection from other forms of exploitation In its previous conclusion the Committee asked whether there are special programmes to assist children involved in begging (and where appropriate their families) as well as measures taken to protect and assist children from economic exploitation. It notes from the report that exploitation of children by means of forced begging is a relatively new and still fairly rare phenomenon in the Netherlands. In 2008 the Child Protection Board drafted guidelines for dealing with children from Eastern Europe who are involved in activities such as begging. A policy has been developed for this purpose in the municipalities of Den Bosch and Amsterdam. In cases in which parental responsibility is not exercised, the Child Protection Board asks the courts to transfer parental responsibility to an agency. The Child Protection Board may also request the courts to make a supervision order where the parents abuse or do not exercise their authority. 11

12 According to the report figures are available on the number of child victims of human trafficking in general (without any breakdown by type of exploitation) and on the victims of economic exploitation in general. The national policy on these groups of children is the same as the policy for all other children who are victims of child abuse and human trafficking. Youth protection measures apply to children regardless of whether they are legally or illegally resident in the Netherlands. Pending receipt of the information requested, the Committee concludes that the situation in the Netherlands is in conformity with the Article 7 10 of the Charter

13 Article 8 - Right of employed women to protection of maternity Paragraph 1 - Maternity leave The right to maternity leave The Work and Care Act entitles employees to sixteen weeks of maternity leave. The Working Hours Act prohibits employees from working during the four weeks before childbirth and six weeks after childbirth. The Committee asks confirmation that this also covers women employed in the public sector. The right to maternity benefits As regards conditions which must be fulfilled for receipt of maternity benefits, the Committee notes from another source 1 that if you are employed in the Netherlands and are insured in your own right, you are entitled to maternity benefits. The employee must apply through the employer to the Executive Institute for Employee Insurances at least 2 weeks before maternity leave. The Committee asks whether the same framework applies to women employed in the public sector. Pending receipt of the information requested, the Committee concludes that the situation in the Netherlands is in conformity with Article 8 1 of the Charter. 1 Website of the European Commission, Employment, Social Affairs and Equal Opportunities: m Article 8 - Right of employed women to protection of maternity Paragraph 2 - Illegality of dismissal Prohibition of dismissal The situation was previously found to be in conformity with Article 8 2 of the 1961 Charter (s XVII-2). From the report, there has been no change in the situation. Considering that the situation has now to be examined in respect of the Charter which affords wider protection to pregnant women in that the prohibition of dismissal must start at least from the moment that the employee's pregnancy has been notified to the employer, the Committee has to re-examine the domestic legal framework in this light. Article 7:670 2 of the Civil Code prohibits dismissal during the period of pregnancy and maternity leave and during the six weeks that follow maternity leave. The situation is therefore in conformity with Article 8 2 in this respect. In reply to the Committee's question on whether the consent of a court is required for the termination of the employment contract of a pregnant woman or a woman on maternity leave or during the six weeks that follow the end of maternity leave, the report indicates that employers apply to civil courts in order to terminate an employment contract. The competent court will then decide whether the employment contract may be terminated or not, and whether compensation must be paid and if so how much. There is no limit to the amount of compensation that can be awarded in this context. Consequences of unlawful dismissal The Committee already found that in case of unlawful dismissal during the protected period the employee concerned may take action within two months of the purported dismissal and claim that it is void. The employer then has to pay the employee or she is entitled to take legal action for non- 13

14 payment of wages. Alternatively, the employee, after the expiry of two months, may bring action for manifestly unreasonable dismissal before the District Court and can apply for compensation and reinstatement. The Committee asks again whether in such cases there are any limits to the amount of compensation that may be awarded by the court, in particular if there is no reintegration. If there is, it asks whether this upper limit covers both pecuniary and non-pecuniary damage or whether unlimited non-pecuniary damage can also be sought by the victim through other legal avenues (e.g. antidiscrimination legislation). It also asks whether both types of compensation are awarded by the same courts, and how long it takes on average for courts to award compensation. Should the next report not provide the information requested, there will be nothing to establish that the situation is in conformity. The Committee asks whether the same regime regarding dismissals applies to women employed in the public sector. Pending receipt of the information requested, the Committee concludes that the situation in the Netherlands is in conformity with Article 8 2 of the Charter. Article 8 - Right of employed women to protection of maternity Paragraph 3 - Time off for nursing mothers The situation was previously found to be in conformity (s XVII-2). The Working Hours Act entitles employees who are breastfeeding a child up to nine months to paid breaks of up to a maximum of 25% of their working hours. The Committee asks whether this also applies to women employed in the public service. Pending receipt of the information requested, the Committee concludes that the situation in the Netherlands is in conformity with Article 8 3 of the Charter. Article 8 - Right of employed women to protection of maternity Paragraph 4 - Regulation of night work The situation regarding the regulation of night work was previously found to be in conformity with Article 8 4 of the 1961 Charter. However, the report indicates that, according to the Working Hours Act, pregnant women cannot in principle be required to carry out night work unless their employer gives weighty reasons whereby it cannot reasonably be expected of him or her to adapt the employee's work (Section 4:5 paragraph 5). In this respect, the Committee refers to its conclusion on Article 2 7 on night work (s 2010) in which a number of questions on the rules on night work laid down by the Working Hours Act, as amended on 1 April 2007, were raised. The Committee asked whether a medical check-up is carried out before an employee is assigned to night work, allowing for a transfer to daytime work for health reasons. This question appears to be of particular relevance for pregnant women, women having recently given birth and those who breastfeed their children. In addition, the Committee asks how courts interpret the above-mentioned notion of "weighty reasons". It underlines that should the next report not provide this information there will be nothing to establish that the situation is in conformity on that point. The Committee asks whether the same regulation applies to women employed in the public sector. 14

15 Pending receipt of the information requested, the Committee defers its conclusion. Article 8 - Right of employed women to protection of maternity Paragraph 5 - Prohibition of dangerous, unhealthy or arduous work The Committee previously found the situation to be in conformity regarding the prohibition of dangerous, unhealthy and arduous work under Article 8 4 of the 1961 Charter (s XVII-2), which now comes within the scope of Article 8 5 of the Charter by which the Netherlands is now bound. The report indicates that according to the Working Conditions Decree specific attention is paid in the risk assessment of the work of the employee concerned to the non-exhaustive list of agents, processes and conditions included in EU Directive 92/85/EEC. Pursuant to Section 1.42 of the aforementioned Decree, employers are required to organise the work in such a way that there are no risks to pregnant or breastfeeding employees and no ill-effects on pregnancy and breastfeeding. For example, pregnant and breastfeeding women may not be exposed to lead and lead compounds or to biological agents (toxoplasma, rubella), nor may they work in a hyperbaric atmosphere. The Committee notes from the above-mentioned Decree that if the employee's work represents a risk to her health that is not avoidable by changing her working conditions or hours, or if she cannot be temporarily transferred to another work, she is exempt from her duties while the risk persists. The Committee asks whether in such cases her leave will be paid and whether she has a right to reinstatement when her condition permits it. The Committee asks whether this also applies to women employed in the public sector. Pending receipt of the information requested, the Committee defers its conclusion. 15

16 Article 16 - Right of the family to social, legal and economic protection As the notion of the family is variable, the Charter applies to every family according to the definition of this notion in domestic law. The Committee asks that the next report indicate how the family is defined in domestic law. Social protection of families Housing for families The Netherlands has accepted Article 31 of the Charter on the right to housing. As all aspects of housing of families covered by Article 16 are also covered by Article 31, for states that have accepted both articles, the Committee refers to Article 31 on matters relating to the housing of families. Childcare facilities The Committee notes that as Netherlands has accepted Article 27 of the Charter, measures taken to develop and promote child day care structures are examined under that provision. Family counselling services Families must have access to appropriate social services, particularly when they are in difficulty. States are required in particular to set up family counselling services and services providing psychological support for children s education. The Committee asks for up-to-date information on family counselling services to be included in the next report. Participation of associations representing families To ensure that families views are catered for when family policies are framed, the authorities must consult associations representing families. The Committee asks for information in the next report on the participation of relevant associations representing families in the framing of family policies. Legal protection of families Rights and obligations of spouses In its previous conclusions (s XVII-1 and XVIII-1), the Committee asked for information about the follow-up to the bill being introduced to amend the rules on estates held in common, because this bill was still being examined in Parliament. According to the report, a motion has been tabled in Parliament to investigate which Sections in Titles 6 to 8 of Book 1 of the Civil Code concerning community of property should be amended. The Committee asks for information in the next report on the amendments. In its previous conclusion (s XVIII-1), the Committee asked for information about the bill on the maintenance of parental duties in the event of divorce. Under the Shared Parenting and Responsible Divorce and Separation Act of 1 March 2009, parents who separate or divorce are obliged to make agreements about the care of their minor children, and to set these agreements out in a parenting plan (ouderschapsplan). The underlying principle is that the parents continue to share authority over their children after the separation or divorce. The parenting plan must include information on the division of care responsibilities, child maintenance payments and the exchange of information concerning their children or their children s property. Parents can call in a mediator to help them draw up the plan. Judges can also refer parents to a mediator. Mediation services The Committee asks for information in the next report on access to family mediation services, whether they are free of charge, how they are distributed across the country and how effective they are. 16

17 Domestic violence against women The Social Support Act came into force in January It requires municipalities to provide assistance for victims of domestic violence. Municipalities are also responsible for adopting policies to reduce domestic violence and opening advice and support centres for victims of domestic violence. In reply to the Committee s question, the report states that there is a national network of 41 advice and support centres. The Temporary Domestic Exclusion Order Act entered into force on 1 January Under domestic exclusion orders, where there is an acute threat (or serious grounds for suspicion of an acute threat), a perpetrator of domestic violence is excluded from his or her home and is forbidden from contacting his or her partner or children for a period of ten days. During that period, assistance programmes are provided for all the persons concerned. Mayors can extend the exclusion orders for up to four weeks. Economic protection of families Family benefits The Committee considers that, in order to comply with Article 16, child allowances must constitute an adequate income supplement, which is the case when they represent a significant percentage of median equivalised income. According to MISSOC 1, in 2009, the amounts of the basic universal child allowance were different for children born before and after The monthly allowance for the children born after 1995 was (up to 6 years), (6 to 11 years), and (12 to 18 years). The Committee notes that these amounts per month correspond to 3.9%, 4.7% and 5.5% of monthly median equivalised income. It also notes that the allowance for families with children up to 6 and children aged 6-11 is low (3.9% and 4.7%) and it therefore asks that the next report contain detailed information on the impact of other types of benefits and tax reliefs for this group of families. Meanwhile, it reserves its position on this point. Vulnerable families In its last conclusion (s XVIII-1), the Committee noted that under the Income Tax Act of 2001, single-parent families, like any other family, are entitled to child tax credit. They are also entitled to combination tax credit if their households include a child under 12 for more than six months in a given calendar year, the parent works and household earnings exceed 4,306. The Committee noted however that single-parent families do not often have high enough incomes and hence do not pay enough taxes to benefit from these tax relief measures. According to the report, on 1 January 2008 the child tax credit (kinderkorting) was replaced by a means-tested child allowance (kindgebonden budget). As a result lower-income families also benefit. The guaranteed minimum income for single parents receiving social assistance is higher than for other single people (90% of the statutory minimum wage as opposed to 70% of the statutory minimum wage for single people). Single parents also receive the single-parent tax credit (alleenstaande ouderkorting) in full. States' positive obligations under Article 16 include implementing means to ensure the economic protection of various categories of vulnerable families, including Roma families. The Committee consequently asks what measures are taken to ensure the economic protection of Roma families. Equal treatment of foreign nationals and stateless persons with regard to family benefits The Committee asks if nationals of other non-eu/eea states party residing or working lawfully in the Netherlands enjoy equal treatment with regard to the payment of family benefits. 17

18 Pending receipt of the information requested the Committee concludes that the situation in the Netherlands is in conformity with Article 16 of the Charter. 1 European Commission publication, MISSOC, Social protection in the Member States of the European Union, the European Economic Area and Switzerland, Situation on 1 July 2009, comparative tables ( 18

19 Article 17 - Right of children and young persons to social, legal and economic protection Paragraph 1 - Assistance, education and training The Committee takes note of the information contained in the report submitted by Netherlands. Status of the child The Committee notes that there have been no changes to the situation which it has previously held to be in conformity with the Charter. Protection of children from ill treatment and abuse In its previous conclusion (s XVII-2) the Committee held that the situation in the Netherlands was not in conformity with Article 17 of the Charter as all forms of violence against children were not prohibited. In this connection it notes from the report that on 25 April 2007 an amendment to the Civil Code prohibiting the use of all forms of violence, including for educational purposes, entered into force, which explicitly imposes a duty on parents to refrain from using any form of mental or physical violence in raising their children. The Committee notes from another source 1 that following this amendment, corporal punishment is as well prohibited in alternative care settings. The Committee notes that the situation has been brought into conformity in this regard. Education As regards the right to accessible and effective education, the Committee refers to its conclusion under Article Children in public care In reply to the questions asked by the Committee in its previous conclusion, the report states that in ,429 children were placed in peripatetic care, 6,697 in foster care and 6,081 in residential care. In addition, a secure youth care has been set up which is a restricted type of residential care and where 1,493 children were placed in 2008.T he groups in secure youth care consist of a maximum ten children. As regards guardians, they are responsible for ensuring that a child is well cared for and raised in a foster family or care institution. The guardian is also the child's legal representative and is responsible for the proper management of the child's estate. Guardianship ends when the child reaches the age of majority. The Committee notes from the report that as of 2013 there will be two recognised professions in youth care institutions, that of 'youth care worker' and 'behavioural scientist specialising in youth care'. The Committee wishes to be informed about these developments. According to the report all youth care providers and national institutions have a complaints mechanism in place as of The Youth Care Inspectorate receives complaints and refers them back to the complaints committees. The findings of the complaints committees are not binding on the institutions in question. Nevertheless, complaints found to be justified are often followed up and management draws up plans for improvement on the basis of the Committees' annual reports. Besides, the National Ombudsman also receives complaints and issues a report regarding some cases. All clients in youth care, including children themselves and their parents, may lodge a complaint. The Committee asks what follow up has been given to these complaints. The Committee further recalls (s XV-2, Statement of Interpretation on Article 17 1, p.29) that any restriction or limitation of parents custodial rights should be based on criteria laid down in legislation, and should not go beyond what is necessary for the protection and best interest of the child and the rehabilitation of the family. The Committee has held that it should only be possible to take a child into custody in order to be placed outside his/her home if such a measure is based on adequate and reasonable criteria laid down in legislation. The Committee asks what are the criteria for the restriction of custody or parental rights and what is the extent of such restrictions. It also asks what are the procedural safeguards to ensure that children are removed from their families only in exceptional 19

20 circumstances. It further asks whether the national law provides for a possibility to lodge an appeal against a decision to restrict parental rights, to take a child into public care or to restrict the right of access of the child's closest family. Young offenders In its previous conclusion the Committee asked what were the criteria of admission to different types of treatment centres. According to the report a court judgement is the only criterion for admission. It determines whether the juvenile in question will be remanded to an institution for young offenders and for how long. The choice of institution depends on person's sex, place of residence, IQ and the problem at issue. In its previous conclusion the Committee asked whether any young offenders were indeed sentenced to life imprisonment or an imprisonment of up to 20 years. In this regard, the report states that juveniles who are 16 or 17 years old at the time they commit offence may be tried under adult criminal law if the court sees fit. However, a life sentence may not be imposed on them under the adult criminal law (Article 77b, paragraph 2, Criminal Code), amended in According to the report of the Commissioner for Human Rights 2, following the 2008 amendment the Netherlands no longer allows life imprisonment sentences to minors. However, according to his report, pursuant to the Kingdom of the Netherlands reservation under Article 37 (c) of the CRC, juveniles aged 16 and 17 can be tried under adult criminal law and condemned to prison sentences of up to 30 years. The judge decides on the application of adult criminal law by considering the nature of the offence and the shock caused to society (Art. 77b of the Criminal Code). Such sentences are executed in an institution for adults. In the discussions with the authorities, the Commissioner argued for the separation of minors and adults in all detention facilities and for the application of juvenile criminal law even in serious offences. In addition, the Commissioner finds that the wide margin given to the criminal judge under article 77b of the Criminal Code falls short of the precision and certainty that criminal law should guarantee. Moreover, according to the Commissioner, the policy to incarcerate juveniles in prisons for adults contravenes international treaties and standards, notably the CRC and the Havana Rules, setting the Kingdom of the Netherlands aside from the practice in most European states. The Committee recalls that in the meaning of Article 17 1 prison sentences should only exceptionally be imposed on young offenders. They should only be of a short duration. Therefore, the Committee considers that a prison sentence of up to 30 years is excessive. The Committee further recalls that young offenders should not serve their sentence together with adult prisoners. Therefore, Committee considers that the possibility for minors in the Netherlands to serve their sentence with adults is contrary to the Charter. The Committee notes that the number of juveniles order to be held in pre-trial detention decreased from 2,319 in 2007 to 1,852 in The Committee asks what is the maximum length of pre-trial detention. Follow up to Defence for Children International (DCI) v. Netherlands, Complaint No. 47/2008, decision on the merits of 20 October 2009 The Committee refers to its on Article 31 2 and recalls that in its decision on the merits of 20 October 2009 in Complaint No. 47/2008 Defence for Children International, 71 it held that the obligations related to the provision of shelter under Article 17 1 are identical in substance with those related to the provision of shelter under Article Insofar as the Committee has found a violation under Article 31 2 on the ground that shelter is not provided to children unlawfully present in the Netherlands for as long as they are in its jurisdiction, the Committee also found a violation of Article 17 1 of the Charter on the same ground. The Committee notes that the situation has not changed, therefore it reiterates its finding of non-conformity on this ground. 20