FREEMARKETECONOMYANDHUMANRIGHTS:ENEMIESORALLIES?
-ANASSESSMENTOFLABOURACTIVATIONPOLICIESINNORWAYANDTHENETHERLANDS
by Tineke Dijkhoff, Ph.D. and Melanie Regine Hack, Ph.D.,
both senior researchers at Max Planck Institute for Social Law and Social Policy, Munich∗
1. Introduction
The globalized labour market is greatly fuelled by competition, not only between enterprises
but also between states. Enterprise-friendly tax and labour policies are put in place in order to
attract international companies and raise employment rates. As a consequence, the protective
function of national labour law is losing weight. This paper is based on the assumption that if
the labour market globalizes, the protective framework for workers can no longer be built
solely on national laws, but must rather be founded on global agreements. Human rights are
globally accepted minimum rights that should be guaranteed in all cases, also when they
hamper competition and profit-making. As such, human rights should act as a counterweight
to the rules of a free market and their excessive emphasis on economic growth. Within the
European Union and Scandinavia, including Norway, a typical development resulting from
the market economy perspective is the advent of labour activation policies during the last
decades. In the aftermath of the global recession of 2008/09, unemployment and inequality
have been increasing. Global developments have an impact on national economies and via
labour market reforms and regulations, also an impact on the individual. To address the
consequences of the global economic crisis and to tackle the challenges related to
globalization, flexibilization, demographic change and digitalization (society 4.0), active
labour market policies (ALMPs) were put on the agenda in many countries. These ALMPs are
an important instruments for governments to deal with these new challenges and to ensure “a
competitive national state”1 in a globalized free market economy in which public policies
primarily aim at improving the competitiveness of enterprises and in which “even social
rights come to be defined as investments in human capital.”2 The structure and design of
national employment and social security laws may constitute a competitive advantage in this
*
Paper submitted for ReMarkLab Final Conference: New Foundations of Labour Law in the Globalised Market
Economy? Stockholm, Thursday 19 May – Friday 20 May 2016.
1
De Schutter, Olivier, Activation Policies for the Unemployed: redefining a Human Rights Response, in:
Activation Policies for the Unemployed, the Right to Work and the Duty to Work, Dermine, Elsie/Dumont,
Daniel (eds.), 2015, pp. 255- 277, p. 259 quoting Joachim Hirsch’s book “Der nationale Wettbewerbsstaat: Staat,
Demokratie und Politik im globalen Kapitalismus” (The Competitive National State: State, Democracy and
Politics in Clobal Capitalism.
2
De Schutter, Activation Policies for the Unemployed: redefining a Human Rights Response, p. 259.
1 / 23
regard, for example the conditions under which a person may be to be entitled to
unemployment benefits.3 The main focus in research in recent years with regard to ALMPs
has been on regulating the rights and obligations of the groups targeted by ALMPs, notably
unemployed and economically inactive persons. By contrast, the role and behaviour of
employers in this context has not so much been an issue of research.4 The same is true for
research on whether ALMP regulations are in conformity with human rights law.5 The latter,
the human rights dimension, is subject to a closer analysis in this paper. It seeks to address
selected ALMPs in the Netherlands and Norway from the perspective of the individual in
light of the social human rights, most importantly, the right to work and its intrinsic values.
Norway and the Netherlands have a comparatively high rate of disability benefit recipients in
common. This contrasts with lower unemployment rates in both countries.6 Another feature
common to both countries is that they have, on the one hand, rather generous sickness and
unemployment schemes in terms of the level of replacement rates and benefit duration, while
on the other hand they have established rather drastic ALMPs and rigid sanction mechanisms
that, at some point, may interfere with the social human rights. This paper is the first step of a
research project on the relation between these ALMPs, including their sanction instruments,
and the various social human rights instruments. Do ALMPs run counter to human rights? If
so, can this be justified by economic or public interests? How to develop an unbiased legal
framework to assess ALMPs against the social human rights? The objective of this paper is to
explore the fields of tension between these two and to formulate specific research questions
that may lead to answers about the relationship between ALMPs and the social human rights
and whether human rights law constitutes an adequate and effective protective framework for
workers in a globalized economy.
The paper is structured as follows: Section 2 provides a brief overview of active labour
market policies in Norway (2.1) and in the Netherlands (2.2). Sections 3.1 to 3.3 assess how
these policies in both countries relate to the social human rights and at which points they may
3
De Schutter, Activation Policies for the Unemployed: redefining a Human Rights Response, p. 259.
Analysing ALMPs from the employer’s perspective e.g.: Thomas Bredgaard, Thomas/Halkjær, Jon Lystlund,
Employers and the Implementation of Active Labor Market Policies, Nordic Journal of Working Life Studies
Volume 6, Number 1, March 2016, pp. 47-59.
5
Similarly Dermine, Elise/Dumont, Daniel, Introduction, Activation Policies for the Unemployed, the Right to
Work and the Duty to Work: Which Interactions?, in: Activation Policies for the Unemployed, the Right to
Work and the Duty to Work, Dermine, Elise/Dumont, Daniel (eds.), 2015, pp. 11-20, p. 20.
6
See e.g. for an OECD overview on public spending in incapacity due to sickness, disability and occupational
injury: https://data.oecd.org/socialexp/public-spending-on-incapacity.htm. For an OECD overview on
unemployment rates: https://data.oecd.org/unemp/unemployment-rate.htm (accessed at 09 May 2016). See
moreover as regards disability benefit recipient rates: OECD, Sickness, Disability and Work breaking the
barriers, A Synthesis of findings across OECD Countries, 2010, p. 60, Figure 2.9.
2 / 23
4
run counter to these rights. In section 4, some tentative conclusions are drawn and questions
for further research formulated.
2.
Overview of activation policies in Norway and the Netherlands
2.1. Labour activation labour policies in Norway
2.1.1. Introduction
The great recession in 2008/09 had a smaller impact on the Norwegian economy than on any
other European country. The Norwegian economy recovered quickly and the number of
unemployed persons remained relatively stable. Norway has repeatedly been crowned as the
world's most prosperous nation by the Prosperity Index.7 However, when oil prices started to
fall in 2013, it became apparent that beyond the glitz, the Norwegian economy with its strong
focus and reliance upon the oil and gas sector had become incredibly unbalanced.8 The
number of unemployed increased, according to the recent Norwegian Labour Force Survey
(Arbeidskraftundersøkelsen – AKU) by 17000 from the first quarter of 2015 to the
corresponding quarter in 2016. The entirety of this increase occurred amongst men, for whom
an unemployment rate of 5.7% in the first quarter of 2016 applied, which is an increase of
1.2% compared to the year before. Not surprisingly, most of the jobs were cut in oil-related
industries. The increasing problems for men on the labour market are related to the impact of
a reduced oil price on the Norwegian economy. According to AKU data from the first quarter
of 2015 to the first quarter of 2016, there has been a decline of 9000 employees in the oil and
gas extraction industry. In the industrial sector there has been a cut of 12000 employees. In
most of the industries affected by the oil crisis men constitute 80% of the workforce. By
contrast the health and social service sector - where women represent 80% of the workforce recorded an increase of 28000 employees from the first quarter of 2015 to the first quarter of
2016.9
From a comparative perspective it can, according to the OECD, be ascertained that the share
of the working-age population that receiving unemployment benefits is very low, while by
contrast the share of those getting a benefit due to sickness or disability is comparatively
7
Madslien, Jorn, Norway seeks to diversify its economy as oil earnings plunge, 10 February 2016, BBC News,
available at: http://www.bbc.com/news/business-35318236.
8
Madslien, Norway seeks to diversify its economy as oil earnings plunge, 10 February 2016, BBC News.
9
http://www.ssb.no/arbeid-og-lonn/statistikker/aku/kvartal/2016-04-28.
3 / 23
high.10 Pursuant to OECD studies, nearly one fifth of the working age population receives
income support on grounds of health problems or disability.11 The OECD concludes that
based on the sum of all benefits that are granted for individuals out of work, nearly a fourth of
the Norwegian population obtain such benefits in order to be supported during phases out of
work. 12 Or in other words, given the high employment rate, almost all persons that are not
working receive some kind of income support from government transfers.13 Looking at
Norway from a long-term perspective, the long-term rise of disability benefit receipt on the
one hand, and on the other the decline in unemployment and social assistance benefits since
the mid-1990s has become apparent.14 According to the OECD, three types of countries can
be distinguished as regards this specific evolution: Norway and the Netherlands belong to the
third group and have in common that the disability rate increased while unemployment
underwent cyclical variations but remained at markedly lower levels. In contrast to that in
countries like Germany (second group) the number of unemployed persons increased
significantly while the share of the working age population receiving disability pensions and
social assistance remained relatively stable and at a much lower level. In countries like
Finland, France and Spain (first group), unemployment benefit and disability benefit rates
have remained at similar levels.15 The rise of the disability benefit receipt in Norway is
specially an issue with regard to in younger age groups, and the reasons for this increase are
still under debate.16
Unemployed persons in Norway may be entitled to receive daily cash benefits (dagpenger) to
compensate for the loss of income caused by unemployment. Compared to previous working
10
Duell, N./Singh, S./Tergeist, P. (2009), “Activation Policies in Norway”, OECD Social, Employment and
Migration Working Papers, No. 78, p. 63, para. 190.
11
Duell et al. (2009), “Activation Policies in Norway”, OECD Social, Employment and Migration Working
Papers, No. 78, p. 64, para 91 and as regards cross-country trends concerning the evolution of benefit recipients
since the mid 1990s: p. 65, para. 192.
12
Duell et al. (2009), “Activation Policies in Norway”, OECD Social, Employment and Migration Working
Papers, No. 78, p. 64, para. 91, p. 65, para. 192.
13
Duell et al. (2009), “Activation Policies in Norway”, OECD Social, Employment and Migration Working
Papers, No. 78, p. 64, para. 91, p. 65, para. 192.
14
For cross-country trends concerning the evolution of benefit recipients since the mid 1990s see: Duell et al.
(2009), “Activation Policies in Norway”, OECD Social, Employment and Migration Working Papers, No. 78, p.
65, para. 192, see also p. 64, para. 91; for the low unemployment rates and the relatively high benefit
dependency rate in Norway see also Martin, John P., Activation and active labour market policies in OECD
countries: stylised facts and evidence on their effectiveness, IZA Journal of Labor Policy (2015) 4:4, p. 16.
15
Duell et al. (2009), “Activation Policies in Norway”, OECD Social, Employment and Migration Working
Papers, No. 78, p. 65, para. 192.
16
see among others: Markussen, Simen/Vaage, Kjell, Forskere svarer om ungdom og trygd: Medisinske
fremskritt forklarer ikke alt, Aftenposten, 12 May 2015; Grødem, Anne Skevik /Nielsen, Roy A./Strand, Anne
Hege, Unge mottakere av helserelaterte ytelser, Fordelingen mellom offentlig og familiebasert forsørgelse av
unge NEET, Fafo-rapport 2014:37; Bragstad, Torunn/Brage, Søren, Unge på arbeids- og helserelaterte ordninger
Søkelys på arbeidslivet 3/2009 årgang 26, 389–399.
4 / 23
hours, working hours must have been reduced by at least 50%.17 The period during which one
may receive dagpenger depends on earlier income from work. If the income from work
amounts to at least twice the basic amount, benefits will be granted for 104 weeks (two
years).18 After this period has expired, the unemployed person may be entitled to social
assistance (sosialhjelp). For persons whose working capacity is reduced by at least 50% due
to illness, injury or disability, a work assessment allowance (arbeidsavklaringspenger - AAP)
is granted which, as of 1 March 2010 has replaced rehabilitation allowance, benefits during
vocational rehabilitation and temporary disability benefits.19
The achievement of high employment participation has for decades been a high priority of
Norwegian politics, which inter alia finds its expression in the declarative right § 110 of the
Norwegian Constitution (Grunnloven)20, which states that the authorities are responsible for
creating conditions that enable every person capable of work to earn a living through their
work or enterprise.21 Moreover, § 110 clarifies that ““[t]hose who cannot themselves provide
for their own subsistence have the right to support from the state.”22 This is also embodied in
the objective of the Lov om arbeidsmarkedstjenester (arbeidsmarkedsloven)23, which stresses
in § 1 that the key aim is to contribute to achieve an inclusive working life via a wellfunctioning labour market with a high labour force participation and low unemployment rate.
In the Norwegian context, unemployment benefits are considered to fulfil a double function:
first they hold an insurance function, where the benefit shall compensate for loss of income.
Second they involve a labour market function that is as an instrument to improve the
functioning of the labour market by facilitating job search.24
17
For an overview see: European Commission, Your social security rights in Norway, 2013, pp. 24f. available
at:
http://ec.europa.eu/employment_social/empl_portal/SSRinEU/Your%20social%20security%20rights%20in%20
Norway_en.pdf.
18
European Commission, Your social security rights in Norway, 2013, p. 24.
19
For an overview of the requirements for claiming AAP see: European Commission, Your social security rights
in Norway, 2013, pp. 12f.; see also: Halvorsen, Knut/Stjerno, Steinar/Øverbye, Einar, Innføring i helse- og
sosialpolitikk, 5. Edition, 2014, p. 136 and for an in-depth analysis: Ane-Louise, Svele, Arbeidsavklaringspenger
– en ny ytelse fra folketrygden, Tidsskrift for Erstatninsgrett, forsikringsrett og velferdsrett 2010, pp. 42-75.
20
Kongeriket Norges Grunnlov, LOV-1814-05-17.
21
§ 110 has been implemented in the Constitution in 1954 and reformulated during the constitutional reform in
2014; onto this policy see also Hatland, Askel, Trygd og arbeid, in: Den norske velferdsstaten, Askel
Hatland/Stein, Kuhnle/Tor Inge Rmøren (eds), 4th edition, Kapittel 4, pp. 102-147, pp. 112f.
22
See for an English translation of the Constitution:
https://www.stortinget.no/globalassets/pdf/constitutionenglish.pdf.
23
LOV-2004-12-10-76.
24
Duell et al. (2009), “Activation Policies in Norway”, OECD Social, Employment and Migration Working
Papers, No. 78, OECD Publishing. http://dx.doi.org/10.1787/, pp. 67f. para. 200-202; on this double function see
also Halvorsen, Knut/ Stjerno, Steinar/ Øverbye, Einar, Innføring i helse- og sosialpolitikk, 5. Edition, 2014, p.
137.
5 / 23
To illustrate the current activation instruments and the rights and obligations for individuals
who are not active in the labour market under Norwegian law two examples shall be
highlighted further: first, the existing legal obligations for recipients of unemployment
benefits and second the activation requirements for recipients of social assistance shall be
described.
2.1.1. Example 1: Obligations for recipients of unemployment benefits
Compared with other OECD countries, it can be concluded that Norway - in line with
Denmark and Germany - imposes very strict requirements on unemployment beneficiaries
regarding their occupational mobility. On a scale from 1 to 5, it is on top scoring 5.25 This
strictness becomes apparent if one takes a closer look at the rights and obligations of
unemployment beneficiaries that are laid down in chapter 4 of the National Insurance Act
(folketrygdlov (ftrl)).26 As stipulated in its § 4-5 ftrl the right to dagpenger can only be
claimed if the unemployed person fulfils the criteria of being a so-called „real jobseeker“.
Those that are able to work (arbeidsfør) and willing to take any work that is remunerated
according to tariff or customs, wherever in Norway, regardless of whether full-or part-time,
and who take part in labour market measures, are considered to be a real job-seekers. Thus,
mobility on behalf of the unemployed person is required in every respect: financially,
geographically and as regards time. Only in limited cases are exceptions provided on the
grounds of age or other serious social considerations related to health, caring responsibilities
for small children or family relatives in need of care. In such cases the member of the
folketrygd may be considered to be a real jobseeker even though he is seeking only part-time
or within a limited geographical area.27 The right to dagpenger may be suspended for a
limited time, if the jobseeker refuses to accept job offers under the criteria set in § 4-5 ftrl and
if he refuses or refrains from attending a consultation with NAV.28
2.1.2. Example 2: Activity requirements for recipients of social assistance
Another example that might be interesting to look into is the activity requirements for
recipients of social assistance, the so-called sosialhjelp. Those who cannot make a living
through work or by exercising their financial rights are entitled to financial support according
25
Eidsvaag, Tine, The activation line in social security and social assistance law: a human rights perspective, in:
Aasen, Henriette Sinding/Gloppen, Siri/Magnussen, Anne-Mette/Nilssen, Even, Juridification and social
citizenship in the welfare state, 2014, pp. 81-100, p. 90.
26
Lov om folketrygd (folketrygdloven), LOV-1997-02-28-19.
27
See § 4-5 (2) ftrl; on to the exceptions see also Eidsvaag, The activation line in social security and social
assistance law: a human rights perspective, p. 90.
28
See § 4-20 in connection with § 4-21 ftrl.
6 / 23
to § 18 sosialtjenestelov (sotjl).29 Economic assistance may be linked to conditions, for
example to the requirement that the beneficiary in the assistance period should carry out
suitable work tasks in the municipality where he has his main residence.30 According to the
legal preparatory work, this requirement has been enacted for young unemployed recipients of
social assistance that have not been offered any active labour market measures.31 The
conditional requirement in § 20 sotjl is to be understood such that the decision on awarding
the social assistance is linked to an obligation, ordinance or a limitation of the decision on
financial support. The conditional requirement in § 20 sotjl has to be read in conjunction with
the right to economical support in § 18 sotjl. This support is subsidiary and only provided as
an option of last resort, which means that all possible options for self-sufficiency have to be
utilized - e.g. by using up one’s own capital or the realizing one’s personal assets extensively before the right to economical support may be claimed.32 Also while social
assistance is drawn the recipient is obliged to do all that is possible to again be able to selfhelp.33 If this is condition is not fulfilled the applicant may get a negative decision or the
recipient may lose his right to economical support.34 As clearly set out in § 20 these work
tasks should not be incriminatory in a disproportional manner for the beneficiary or
disproportionately limit his freedom of action or freedom of choice. In any case, the primary
aim of awarding sosialhjelp is to offer help to self-help.35
As discussed in the recent law reform the rights and obligations of the recipients of social
assistance should be flanked by an obligation of the municipalities to implement activity
measures to better support the transition into the labour market and to promote help to selfhelp.36 Moreover, the Norwegian legislator decided to explicitly lay down sanction
mechanisms by way of reducing the amount of social assistance, should the activity
requirements not be fulfilled. According to the proposal for reform, a new third sub-paragraph
should be added to § 20 sotjl to codify any so far unwritten law on sanctions in this regard.37
The proposed new paragraph states that in case of a breach of conditions, a negative decision
29
Lov om sosiale tjenester i arbeids- og velferdsforvaltningen (sosialtjenesteloven - sotjl), LOV-2009-12-18131.
30
§ 20 (1) sotjl.
31
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven (adgang til midlertidig ansettelse
mv. og vilkår om aktivitet for stønad til livsopphold), p. 123.
32
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 127.
33
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 127.
34
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 127.
35
See inter alia § 18 (2) sotjl; see to this aspect also recently Prop. 39 L (2014–2015) Endringer i
arbeidsmiljøloven og sosialtjenesteloven, p. 127.
36
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 128.
37
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 140.
7 / 23
may be given, and that the financial assistance is to be reduced, provided that the recipient has
been informed on such potential reduction prospects in the original decision on awarding the
assistance.38 The Ministry may specify the rules of reduction in further regulations.39
As stressed in the legal preparatory work to the reform of § 20 sotjl activity requirements
should aim at enabling the recipient to full or partial self-help.40 Activity should enhance the
recipients’ opportunities for work or education. It should be work-oriented and meaningful for
the individual. Furthermore it has been stressed that in any application for social assistance an
individual assessment should be carried out as to whether activity requirements should be
imposed. Moreover, it should be examined what type of activity might be be appropriate to
improve the beneficiaries’ chances to find work.41
2.2. Labour activation policies in the Netherlands
2.2.1. Introduction
During the past decades, many different labour activation measures have been put in place in
the Netherlands. Measures have varied from ‘carrots’ to ‘sticks’;42 from measures aimed at
labour participation of unemployed persons to reintegration measures for (partially) disabled
workers; from preventive measures to sanctions. Furthermore, activation measures are
included in different laws and touch on different demographic and social developments. An
example par excellence is the Participation Act (Participatiewet) of 2003 that came into force
on 1 January 2015 and has as its objective an increased labour participation – also on the part
of vulnerable groups in society. The Act stresses the necessity of participation in society by
everyone and people’s individual responsibility in this respect. This Act involves many
changes relating to labour participation measures and social assistance, including sanctioning.
Another example is the Work and Income according to Labour Capacity Act (Wet werk en
inkomen naar arbeidvermogen) of 10 November 2005 that takes a person’s ability to work as
a starting point, in contrast to its predecessor, the Disability Act. Overall, the various
activation measures generally aim at tackling high unemployment rates, saving on benefit
schemes and promoting labour participation in view of economic growth. The Dutch
legislator uses labour activation measures to influence the behaviour of economically inactive
38
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 140.
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 140.
40
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 127.
41
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 127.
42
W. Van Oorschot & P. Abrahamson, ‘The Dutch and Danish Miracles Revisited: A Critical Discussion of
Activation Policies in Two Small Welfare States’, Social Policy & Administration, Vol. 37, No.3, June 2003, pp.
288-304, p. 290
8 / 23
39
persons as well as employers. In fact, during the last decades, measures have more and more
been directed to employers since such measures have been proved most efficient. At the same
time, stricter sanctioning mechanisms have been put in place in relation to the obligations of
beneficiaries of social security benefits. Two eye-catching measures compared to most other
EU member states are: 1. the obligation for employers to continue to pay the wages of sick
employees during the first 104 weeks of their incapacitation for work, and 2. the general
obligation to work in return for social assistance.
2.2.2. Example 1: Continuation of wage pay during sickness
Since 2004, the Dutch Civil Code – regulating the labour contract – prescribes that ‘Where
the employee is unable to perform the contracted work due to sickness […], he remains
entitled to 70 % of his wages […] for a period of 104 weeks’.43 The minimum replacement
rate of 70% is often extended by collective agreements or individual labour contracts to 85%
or to 100% during the first year of sickness. The obligation for the employer to continue the
wage pay of sick employees is accompanied by a prohibition of dismissal of sick employees:
‘An employer may not terminate the employment agreement during the time that the
employee is unable to perform his work due to sickness’.44 Furthermore, the Medical
Examinations Act (Wet op de Medische Keuringen of 1998) contains a general prohibition for
employers to require job candidates to undergo a medical examination.45 Employers are free
to decide how to fund the risk of continued wage pay; they can either bear the risk themselves
or insure it through an insurance company.
The Improved Gatekeeper’s Act (Wet Verbetering Poortwachter of 2002) comprises
requirements for both employers and employees regarding the procedure to be followed
during the period of incapacity for work. For example, a problem analysis and an action plan
regarding the employee’s reintegration to work have to be made, including evaluations and a
second opinion by the Employee Insurance Agency (UWV). If an employee has working
capacity but is not able to return to his own work because of his health condition, the
employer has to offer the employee adapted work or alternative work. If this is not possible
within the company, the employer has to search for suitable work in another company. The
employee is obliged to actively work on his recovery and reintegration, and to accept any
suitable offer he is deemed capable to perform. If the employer and employee do not fulfil
43
Civil Code (Burgerlijk wetboek) 7:629(1).
Civil Code (Burgerlijk wetboek) 7:670(1).
45
Exceptions are made for jobs that require specific health conditions.
44
9 / 23
their obligations, sanctions follow that may vary from a prolonged period of wage pay on the
employer’s side, to the suspension of payments respectively on the side of the employee. If an
employee, after 104 weeks, is still not able to earn at least 65% of his previous earnings, he
can apply for a benefit on the basis of the Work and Income according to Labour Capacity
Act.
The introduction of continuation of wage pay during sickness for the duration of two years
has been followed by a considerable drop of the yearly inflow into the Work and Income
according to Labour Capacity scheme of around 40% of the level that was common until
2001.46 It also has been evaluated however, that the decrease of inflow into a disability benefit
has stagnated for employees with flexible contracts. If a flexible employment contract
terminates while an employee is ill, e.g. because the term of the contract lapses, there is no
employer to continue paying his wages. In these cases, the employee is entitled to sick benefit
based on the Sickness Act (Ziektewet) for up to 104 weeks. In fact, the Sickness Act functions
as a safety net for (ex-)employees without an employer. Similar to employees with an
employer, these former employees are entitled to apply for a benefit based on the Work and
Income according to Labour Capacity Act after 104 weeks of incapacitation.
Until 2014, employers had to pay special premiums to cover the costs of benefits for their
former temporary employees. These premiums were not charged to the individual employers,
but based on the average employee’s disability risk for their entire business sector. That
implies that the employer was not able to influence the level of the contributions he had to
pay for employees with a fixed-term contract. This has changed with the coming into force of
the Sick Pay and Disability Benefit Restriction Act (Wet Beperking Ziekteverzuim en
Arbeidsongeschiktheid Vangnetters) on 1 January 2014.47 Since then, the costs of benefits are
charged to the individual employer for both employees with a permanent and a temporary
employment contract. The premiums for employees with a temporary contract are being
determined on the basis of the number of the employer’s former temporary employees that
have claimed sickness benefits since 2012. The measure must motivate employers –
especially temporary employment agencies – to invest in the well-being of this group of
workers. Obviously, the objective of the Act is to stimulate the return to work of sick workers
46
See, for example, J.-M. van Sonsbeek & R.H.J.M. Gradus, ‘Estimating the effects of recent disability reforms
in the Netherlands’, Oxford Economic Papers (2013), 832.855, p. 832.
47
For a brief explanation of the Act in English, see A.-F. Versteegh, ‘The Netherlands’, International Law
Review, winter 2013, pp. 8-9.
10 / 23
without an employer, to reduce long-term absenteeism and to limit the number of employees
that will claim benefits under the Work and Income according to Labour Capacity Act after
104 weeks of sickness.
2.2.3. Example 2: Activation during unemployment
An employee is entitled to unemployment benefit if he has worked for at least 26 weeks out
of the 36 calendar weeks preceding the unemployment. A week may be counted if the
employer has worked at least 1 hour during a full calendar week. Furthermore, incapacity for
work due to sickness or pregnancy as well as paid leaves equate with work. The benefit has a
duration of three months; in the first two months it amounts to 75% of the employee’s daily
wage (subject to a maximum), in the third month it is 70%. The benefit will be prolonged if
the employee has also worked for at least four calendar years for at least 208 hours during the
last five years. Until 2016, the maximum duration of the benefit amounted to 38 months;
since 2016 this has been reduced to 24 months. After three months of unemployment benefit
or after termination of the prolonged benefit, the employee may be entitled to a subsistence
benefit.
Activation measures in case of unemployment address both employees and employers. Since
1 July 2015, employers have had to pay a so-called ‘transition compensation’ to employees
who have become unemployed – not only if due to dismissal, but also due to their temporary
contracts terminating. The introduction of a compensation for temporary employees is meant
to motivate employers to support these employees in finding a new job, within the company
or somewhere else. This rule replaced the previous ‘compensation for dismissal’, where
employers had to pay for a dismissal that was effected without the consent of the Dutch
Employee Insurance Agency. Unemployment benefit recipients have the obligation to
actively search for work. During the first six months, this may be work that is connected with
the education and work experience of the beneficiary, but after this initial period, any kind of
work that is generally accepted in society is bound to be suitable and has to be taken. This
includes temporary and/or part-time work, less paid work, work below one’s qualifications,
etc. If a beneficiary does not make enough efforts to find a new job or does not meet other
obligations, such as timely reporting of his activities or providing all information requested,
the benefit will be reduced or even stopped.
11 / 23
Beneficiaries that have exhausted their entitlements to unemployment benefits or otherwise
receive insufficient income may be entitled to a social assistance benefit on the basis of the
Participation Act. One of the changes included in this Act is the obligation for social
assistance beneficiaries to perform any unremunerated work that is useful to society in
accordance with the instructions of the municipal authority; the so called ‘work-in-return’
requirement.48 The Participation Act compels municipalities to offer beneficiaries mandatory
work in return for their benefits and to apply the prescribed sanctions in the case a beneficiary
refuses to perform the requested tasks. The discretionary power of municipalities at this point
is very limited. Sanctions involve a 100% benefit cut for 1 to 3 months, which may be
repeated for as long as the beneficiary refuses to fulfil his obligations.
3.
Relationship to human rights
3.1. Introduction
There are different sorts of social human rights instruments that may relate to activation
policies:
-
International human rights instruments, notably the Universal Declaration of Human
Rights and the International Convention on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights, the Convention on the Rights of
Persons with Disabilities (2006)
-
Regional Human Rights Instruments, notably the European Convention of Human
Rights, the European Social Charter, the Revised European Social Charter
-
Normative conventions of the ILO and the Council of Europe elaborating specific
human rights, notably ILO Convention No. 29 on Forced Labour (1930), ILO
Convention No. 102 on Minimum Standards of Social Security (1952), ILO
Convention No. 168 on Employment Protection and Protection against Unemployment
(1988), the European Code of Social Security of the Council of Europe (1964)
All these written, often signed and/or ratified instruments follow from what the great majority
of people believe are universal rights that apply to everyone. The various instruments reflect
what is generally considered to be the more concrete substance of these universal rights.
Many countries have drawn up these rights in their constitutions – often in brief and vague
wordings – and in national legislation. Although derived from the same globally recognized
48
Participation Act, Art. 9(1)(c).
12 / 23
human rights, national laws differ in their interpretation of these rights. In a globalized market
economy, a common, cross-border, human rights interpretation framework would be helpful,
at least within the European Union with its objective of a single market. All EU countries
have accepted the most important human rights instruments of the United Nations and the
Council of Europe, as well as several ILO conventions and/or the European Code of Social
Security. However, the different instruments are being supervised through different
procedures by different bodies,49 and the case law and opinions of these bodies are not being
equally being appreciated by national courts and legislators. Therefore, it will be important to
look at specific ALMPs and examine these measures from a human rights perspective.
3.2. Problematic points in view of social human rights: Norway
In general it has to be noted that activation policies are a double-edged sword. This dual
character of activation policies has also been emphasized by De Schutter in his profound
analysis on a human rights response to activation policies for the unemployed. He put the
underlying key conflict in a nutshell by stating:
“(…) whether or not activation represents a step forward or a step backward in the
fulfilment of the right to work and the freedom to choose employment depends on which
balance each regime strikes between the conflicting values at stake. On the one hand,
activation may result in an expanded set of opportunities for individuals, whose quest for
a decent job may be supported by social services (…), by access to vocational training
throughout the lifecycle to reduce the risks of skills depletion associated with
globalization and technological change, and by individualized counselling. On the other
hand, activation is not without its own dangers, when it results in reduced levels of social
protection as an incentive to return to employment in the introduction of stronger forms
of control to assess whether the jobseeker is actively searching for work, or in the
imposition of a duty to take up employment that is not suitable. It is because activation
policies have this dual character that they cannot be unambiguously ether condemned or
welcomed.” 50
Strict demands for occupational mobility have been met with criticism by human rights
bodies monitoring social rights. However, as stressed by Eidsvaag, the criticism has, so far,
49
T. Dijkhoff, Supervision of social security standards: Between law and politics, in Research Handbook of
European Social Security Law, Cheltenham: Edward Elgar Publishing 2015, pp. 170-201.
50
De Schutter, Activation Policies for the Unemployed: redefining a Human Rights Response, pp. 255f.
13 / 23
not lead to substantial amendments to national legislation.51 For the time being, there is
unfortunately not so much to be gained by taking a glance at human rights jurisdiction. What
may, however, be said based on a human rights and individual rights based approach is that
by focusing merely on the obligatory requirements set out in § 4-5 ftrl the individual
perspective is lost out of sight. In doing so, the right to work and freely chose an employment
as, for example, manifested in Art. 6 of the ICESCR is reduced to a mere duty to work. This
contrasts with a tailor-made approach that seems to be key in providing social assistance due
to § 20 sotjl with its focus on the individual.52 But in particular at an early stage of
unemployment such an individual focus would be pivotal to succeed with a (re-)integration
into the labour market. Unemployment benefits in Norway shall, inter alia, fulfil a labour
market function. Activation policies and sanction instruments may be important instruments
to accomplish this function. However, as stressed by the OECD
“it can be argued that if the search period is too short, the matching process will be less
efficient. Unemployment benefits should be designed in a way to enable the unemployed
to find jobs that correspond to their competencies. The key question is how to avoid
unemployment spells becoming too long and beneficiaries losing their attachment to the
labour market, and thus their employability.”53
In this respect, the question has to be raised whether the strict mobility requirements in § 4-5
ftrl that force a jobseeker to accept any job offer irrespective of his competencies really
contributes to enhanced employability. At this point, the compatibility of §§ 4-5, 4-20 ftrl
with the right to work as manifested in human rights law has to be questioned. It is indeed
particularly debatable whether the existing sanction mechanisms really have the effect of
reintegrating the jobless into work. These doubts may be underpinned if one considers the
high numbers of recipients of disability benefits in Norway. The reason for this influx into
disability benefits might be seen in the fact that the individuals have more rights and fewer
obligations, or as Hatland succinctly put it:
“For people without a job, the Norwegian welfare system makes it more attractive to
apply for sickness or disability benefits than unemployment benefits. This is because
individuals receiving health-related benefits have more rights and fewer obligations.
51
Eidsvaag, The activation line in social security and social assistance law: a human rights perspective, p. 91
referring to Direct request CEACR, Denmark 2006: Direct Request CEACR, Germany 2006: Observation
CEACR Norway 2011 and ECtHR, Schuitemaker case, Article 4 § 2).
52
The individual perspective can further seen in the fact that recipients of social assistance somehow are
regarded as customers with rights and obligations see e.g.§ 28, § 43 and § 15 sotjl.
53
Duell et al. (2009), “Activation Policies in Norway”, OECD Social, Employment and Migration Working
Papers, No. 78, pp. 67f. para. 200-202.
14 / 23
Statistics show that practically no one returns to working life once they have been
granted disability benefits.”54
Also the effectiveness of these sanction mechanisms in §§ 4-5, 4-20 fltrl per se has to be
questioned. In particular whether they are not only are effective in a short-term perspective,
but also lead to better long-term results. Having been established to increase self-help among
the beneficiaries it is questionable whether they do not, in the end, lead to the opposite result.
The reason for that is that in view of existing sanction mechanisms, people that have lost their
job in Norway tend to take the path of least resistance by applying for disability benefits
rather than taking the route of unemployment benefits, which then may turn out as a one-way
road with only limited chances to get back to working-life. In Norway, long-term exclusion
from the labour market is particularly a problem for young people receiving disability
benefits, who in many cases, have never been part of the labour market at all.
In addition, the structure of the Norwegian social security system with its high number of
disability benefit recipients as such has to be questioned. A critical role is played by the
general practitioner (GP), who in the Norwegian system is responsible for deciding “whether
or not (and for how long) a given health problem justifies insurance payouts”.55 In deciding
over this matter, the GP plays an economically important role acting as the arbiter of sick
leave, a capacity that is of great fiscal relevance given that - as stressed recently by Røed and
Markussen - the GPs in the Norwegian system “act as “gatekeepers,” deciding which types of
social insurance expenditures and medical treatments are ultimately necessary for their
patients.”56 In order to find out how this particular situation affects GPs behaviour Røed and
Markussen empirically analysed Norwegian physician’s standards when it comes to doling
out sick leave and the patients’ choices of GPs. In short, the central outcome of the study was
that lenient doctors seem to attract more patients.57 They could demonstrate that not only do
patients choose the more “free handed” physicians, but GPs actually anticipate the "leniency
preference'' of their customers when choosing their own level of leniency. Furthermore, when
the local competitive environment changes — e.g. in situations where another doctor moves
54
Siv Haugan/Else Lie, The best country in the world to live in … or not? Norwegian welfare system facing
major challenges, 12.07.2011, available at:
http://www.forskningsradet.no/en/Newsarticle/Norwegian_welfare_system_facing_major_challenges/12539678
94814; see for an in-depth analysis of this problem: Hatland, A./Øverbye, E. (2011), Syk eller arbeidsledig?, in:
Hatland (eds.), Veivalg i velferdspolitikken, 2011, pp. 73-89, in particular p. 75.
55
Markussen, Simen/Røed, Knut, The Market for Paid Sick Leave, IZA Discussion Paper No. 9825, March
2016, p. 3; Critical to the role of the GP also: Duell et al. (2009), “Activation Policies in Norway”, OECD
Social, Employment and Migration Working Papers, No. 78, p. 80, para. 253.
56
http://newsroom.iza.org/en/2016/05/06/the-market-for-paid-sick-leave/.
57
Markussen/Røed, The Market for Paid Sick Leave, IZA Discussion Paper No. 9825, March 2016, p. 28ff., 30f.
15 / 23
to town, which increases competitive pressure — GPs tend to become more lenient to attract
or keep patients.58 By combining the incompatible roles of business owner and health
provider, GPs in Norway are confronted with highly contradictory incentives, so the key
conclusion by Røed and Markussen.59 In such a situation, these physicians are forced to
decide whether they want tot exercise their “gatekeeping” function in the most ethical manner
possible or whether the want to further their own financial interests by attracting and keeping
more patients as customers.60 In view of these empirical findings there is a need to critically
assess the impact and role of the GPs in Norway also from a legal perspective, as they are the
gatekeepers for the realization of an individual’s social rights.
But also the activity requirements in § 20 sotjl have to be questioned in light of human rights
law. The recent proposal for a tightening of the obligations accompanied by sanctions has,
inter alia, been criticized for providing a too narrow exception clause and for postulating that
the benefit’s character of being the lowest safety net of society might be weakened.61 Critics
to the reform have moreover referred to the fact that several long-term recipients of social
assistance are confronted with complex heterogeneous challenges and that it would therefore
not be realistic for this group to lay down certain activity requirements. The reason for that is
that, here, primarily challenges related to drug abuse, mental diseases and language barriers
are at stake, so the critic.62 The proposed new paragraph on sanctions in § 20 sotjl has been
accordingly criticized for being a breach of central socio-political principles.63 The reform
proposal can, according to its critics, be regarded as a manifestation of the belief that coercion
and control would make it easier for persons marginalized on the labour market to be enabled
to provide for their own subsistence much more quickly. 64
3.3. Problematic points in view of social human rights: The Netherlands
3.3.1. Continuation of wage pay during sickness
Although the wage pay during sickness system is comparatively generous, it has been
critically assessed by the European Committee of Social Rights governing the European
Social Charter and by the ILO Committee of Experts on the Application of Conventions and
Recommendations (CEACR) that supervises Convention No. 102 on minimum standards of
58
For an overview see: http://newsroom.iza.org/en/2016/05/06/the-market-for-paid-sick-leave/.
Markussen/Røed, The Market for Paid Sick Leave, IZA Discussion Paper No. 9825, March 2016, p. 30f.
60
Markussen/Røed, The Market for Paid Sick Leave, IZA Discussion Paper No. 9825, March 2016, p. 30f.
61
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 126.
62
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 126.
63
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 127.
64
Prop. 39 L (2014–2015) Endringer i arbeidsmiljøloven og sosialtjenesteloven, p. 127.
16 / 23
59
social security as well as the European Code of Social Security.65 The problems raised focus
on three fundamental social security principles: financial solidarity, general responsibility of
the state, and representation of persons protected in the management of the scheme.66
As to financial solidarity, it is provided that ‘the cost of the benefits […] and the cost of the
administration of such benefits shall be borne collectively by way of insurance contributions
or taxation or both in a manner which avoids hardship to persons of small means.’67
Regarding the Dutch system, the CEACR has argued that the Dutch solution does not comply
with the principle of financial solidarity, because ‘… the employer 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.’68 Also in respect of the European Social
Charter, the Committee of Social Rights issued its concerns: 69
[…] the choice made by the Dutch Government during the reference period to make the
public sickness insurance scheme subsidiary for the majority of workers calls into
question the foundation and spirit of social security. It therefore concludes that the
situation is not in compliance with Article 12 para. 3 in its principle.
In spite of the prohibition of dismissal during sickness and of obligatory medical
examinations, several studies have shown that the Committee’s concerns about risk selection
are not groundless. Due to the high costs of sick employees, an employer is likely to avoid
this risk. That can be done in different ways. The most obvious way is to select at the gate by
hiring healthy people and thus discriminate applicants with health problems. The prohibition
of medical examination as part of an application procedure offers some protection against this
kind of discrimination. Still, there are also other ways to discover whether an applicant is
likely to be strong and healthy or not, for example, with the use of social media or by
indirectly asking health-related questions during application interviews. Although no exact
65
These three instruments are closely connected where it concerned social security. Both the European Social
Charter Article 12(2) and the European Code of Social security directly refer to ILO Convention No. 102.
66
For a discussion of these principles, see T. Dijkhoff, ‘The Contested Value of International Social Security
Standards in the European Union’, EJSS Vol. 14-3 (2012), 174-198. B. Hofman & F. Pennings, Privatisering en
activering in de Nederlandse social zekerheid en solidariteit, Deventer: Kluwer 2013, pp. 27-60.
67
ILO Convention No. 102, Art. 71(1); also included in the European Code of Social Security and the European
Social Charter.
68
CEACR: Individual Direct Request concerning C102, (Netherlands) 1998.
69
ECS Conclusions XIV-1 (Netherlands) 1998, under Art. 12(3).
17 / 23
numbers are available, it has been established that risk selection takes place.70 In a study from
1995 36% of the questioned employers stated that they selected severely based on health and
absence risks.71 Clearly, such risk selection conflicts with the principle of financial solidarity
that has been formulated to prevent that vulnerable groups of persons become excluded from
social protection. The fact that employers have to bear the risk individually is likely to result
in discrimination of disabled or (chronically) ill persons. Furthermore, since the employer is
exclusively responsible for the payment of wages during sickness, the system conflicts with
the requirement that representatives of the persons protected must be involved in the
administration of the scheme. And lastly, the system seems incompatible with the very
principle of social security: the final responsibility of the state for any social security scheme.
The Dutch government has counter-argued that the risk of risk selection is limited and has put
forward the positive effects of the measure. It has also stressed that the Sickness Act remains
to serve as a safety net and that several complementary measures have been put in place in
order to limit the negative effects. The issue dragged on for many years, with the Dutch
government always determined to continue along the paths it had taken. In its conclusions of
2009, the Committee reiterated:72
As to the financing of the system, in its previous conclusions (Conclusions XVII-1 and
XVIII-1), the Committee recalled that the principle of collective funding is an essential
feature of a social security system under Article 12 of the Charter as it ensures that the
burden of risks are spread among the members of the community. The Committee
considered that making the public sickness insurance scheme subsidiary for the majority
of workers called into question the foundation and spirit of social security. The
Committee was concerned that the reform of the sickness benefits scheme undertaken in
the Netherlands might adversely affect workers with a poor medical record. Considering
that the Government did not provide evidence that sickness and invalidity benefits
continued to be effectively secured as a social security right for all workers, the
70
J. Popma, C. Rayer and M. Westerveld, ‘Evaluatie Wet op de medische keuringen’, Zon Mw, 2007; B.
Cuelenaere & T. Veerman, Effecten van nieuwe financiële prikkels in Zw en Wga op risicoselectie, Leiden: AStri
2011, pp. 15-20; B. Hofman & F. Pennings, Privatisering en activering in de Nederlandse social zekerheid en
solidariteit, Deventer: Kluwer 2013, pp. 27-60.
71
Kamerstukken (Parlementary Documents) II 1996/96, 24 439, nr. 6: ‘Vlucht in flexibele arbeidsrelaties’, p. 56.
In 1994, the period of wage pay during sickness was much shorter: 2 weeks for employers with 15 or less
employees and 6 weeks for employers with more than 15 employees. This has been extended to 52 weeks in
1996 and to 104 weeks in 2004.
72
ESCR, Conclusions 2009 (Netherlands), under Art. 12(1).
18 / 23
Committee concluded that the situation was not in conformity with Article 12§1 of the
Revised Charter.
Subsequently, after more than 15 years, it seems that the Committee rested the case; in its last
report of 2013 it does not refer to this issue anymore, but merely requests for more
information on the coverage of each branch of the social security system.73
3.3.2. The ‘Work in return’ measure
The question as to whether an obligation to accept any job with accompanying sanction
mechanisms is in conflict with the right to work – including the right of everyone to decide
freely to accept or choose work – has been subject to academic discourse for some years
already.74 The general opinion is that beneficiaries of social assistance benefits may be
obliged to take up suitable work in order to promote their employability or to avoid becoming
or remaining unemployed, however some authors are rather critical about this tendency.75 The
relationship between activation measures and the right to work has been considered by the
European Committee of Social Rights. The Committee has made several critical comments in
relation to the suspension or withdrawal of a benefit after the refusal of a job by the
beneficiary. These comments have been based on both Article 1 (the right to work) and
Article 12 (the right to social security) of the European Social Charter. The Committee
concluded, for example, that an obligation to accept any reasonable job from the occurrence
of unemployment does “undermine the adequate coverage of the unemployment risk for
which every worker has contributed during his working activity.”76 This conclusion does not
involve a ban on the imposition of work duties as a benefit condition. The Committee has also
stated that a reasonable initial period during which an unemployed person may refuse a job
not matching his previous occupation and skills without losing his unemployment benefit is
required.77 Also, the European Court on Human Rights has looked into this issue. It decided
73
ESCR, Conclusions 2013 (Netherlands), under 12(1).
See, for example: D. Ashiakbor, ‘The right to work’, in G. de Búrca & B. de Witte (eds.), Social Rights in
Europe, New York: Oxford University Press 2005, pp. 241-259; T. Dijkhoff, International Social Security
Standards in the European Union (diss), Antwerp: Intersentia 2011, pp. 339-341; E. Dermine & D. Dumonts
(eds.), Activation Policies for the Unemployed, the Right to Work and the Duty to Work, Brussels: P.I.E. Peter
Lang 2014; T. Eidsvaag, ‘The activation line in social security and social assistance law: a human rights
perspective’, in H. Aasen et.al (eds.) Juridification and Social Citizenship in the Welfare State, Cheltenham:
Edward Elgar 2014, 81-101.
75
For example: G. Vonk, ‘Hunger as a policy instrument? Some reflections on workfare and forced labour’ , in
O. Hospes, & B. M. J. van der Meulen (Eds.), Fed up with the right to food? : The Netherlands' policies and
practices regarding the human right to adequate food. (pp. 79 - 90). (European Institute for Food Law series 3).
Wageningen: Academic Publishers 2009.
76
ESCR Conclusions (Denmark) 2006, under Art. 12(1).
77
ESCR Conclusions (Norway) 2006, under Art. 12(1).
19 / 23
74
that benefit cuts that were imposed because the applicant had refused to look for suitable
employment, did not infringe Article 4 ECHR on prohibition of slavery and forced labour:78
In order to qualify for unemployment benefits (...) the applicant was required to look for
and accept employment which was deemed suitable for him. Since he refused to comply
with this condition, his benefits were temporarily reduced. It does not appear, however,
that the applicant was in any way forced to perform any kind of labour or that his refusal
to look for employment other than that of independent scientist and social critic made
him liable to any measures other than the reduction of his unemployment benefit. In these
circumstances, the Commission cannot find that the present complaint raises any issues
under Articles 4 para. 2, 9 and 1 of the Convention.
In the Case Van der Mussele v. Belgium, the Court came to a similar conclusion of noninfringement. It held that:79
[…] while remunerated work may also qualify as forced or compulsory labour, the
lack of remuneration and of reimbursement of expenses constitutes a relevant
factor when considering what is proportionate or in the normal course of business.
Noting that the applicant had not had a disproportionate burden of work imposed on him
and that the amount of expenses directly occasioned by the cases in question had
been
relatively
small,
the Court concluded that in that case there had been no
compulsory labour for the purposes of Article 4 § 2 of the Convention.
The Dutch work-in-return measure, however, differs from the abovementioned cases in that it
does not involve paid work. Moreover, the imposed duties are not part of a re-integration
programme nor do they have the objective of training or gaining work experience. Work-inreturn is merely meant to reciprocate for the public benefit.80 In 2013, a Dutch labour court
had to judge about such work-in-return measure that already anticipated on the adoption of
the Participation Act.81 The case involved the refusal of a social assistance beneficiary to
perform cleaning activities for 32 hours per week. The court put the applicant in the right,
arguing that such measure is allowed only if the work concerns normal civil duties or small
78
ECtHR no. 30300/96, decision of 26 February 1997, J.H. Talmon v. Netherlands, 448-449.
ECtHR no 8919/80, decision of 23 November 1983, Van Der Mussele v. Belgium, 34-41.
80
Kamerstukken II (Parlementary Documents) 2010/11, 32 815, no. 4. 3, p. 14.
81
Rechtbank Breda 25 februari 2013, nr. 12/3649 WWB, LJN BZ517; A. Eleveld, ‘Grenzen aan de
tegenprestatie naar vermogen uit de WWB’, TRA, Afl. 6/7 2013.
79
20 / 23
civil services. Moreover, it held that the person’s age, education, work experience and other
relevant personal characteristics must be taken into account. Such individual assessment had
not taken place.
Although it is questionable whether this judgement would hold out at higher courts, it seems a
reasonable decision. The duty to perform any acceptable work without remuneration as a
condition for subsistence benefit is rather far-reaching and seems to run counter to the human
right to work. The European Social Charter has elaborated this right in several articles
(Articles 1-6). The work-in-return measure conflicts with all six of them; in any case, if the
work is substantial and/or physically or mentally aggravating for the beneficiary in question.
According to Article 4 of the ICESCR, limitations of rights are allowed “only in so far as this
may be compatible with the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society”. A unpaid cleaning job for 32 hours per week
without taking into account one’s age, health condition and other characteristics, can hardly
be seen as a normal civil obligation in view of the general welfare.
Another important question is whether such activation measures are effective in the end.
Although the unemployment rates in the Netherlands are generally below EU average, it is
not clear whether this is thanks to such activation measures. Van Oorschot & Abrahamson
have argued that this is not the case: “Regarding the effectiveness of activation policies and
their contribution to the miracle (the decrease of the unemployment rates, td) a reserved
position is necessary too.” 82 He points out that measures aimed at reducing wage costs for
employers are more successful in terms of redeploying the unemployed. They conclude
furthermore, that “full-time jobs held by men in an industrial economy have been replaced by
service economy part-time jobs held by women.”83 A closer look at these kinds of measures in
the light of the right to equal treatment seems to be necessary, as well as at the proportionality
of measures that may severely impact on the lives of beneficiaries.
82
W. Van Oorschot & P. Abrahamson, The Dutch and Danish Miracles Revisited: A Critical Discussion of
Activation Policies in Two Small Welfare States, Social Policy & Administration, Vol. 37, No.3, June 2003, pp.
288-304, p. 296.
83
Ibid, p. 295.
21 / 23
4. Conclusion
In line with Eidsvaag and De Schutter it can generally be concluded that the impact of social
human rights instruments and case law on national law concerning ALMPs has, so far, been
rather weak.84 As stressed by De Schutter “The response of the human rights regime has been
defensive, weak and generally perceived as conservative or irrelevant in the face of today’s
changed circumstances.”85 In view of the existing shortcomings as regards the vigour of
human rights law some authors have argued for a strengthening of a human rights response.86
Some authors have therefore rightly argued that the right to work could impose on states the
establishment of a tailor-made approach when exercising ALMPs, focusing on building the
capacities of individuals via individual counselling – leading to enhanced employability – and
support to the individual rather than primarily being a compensation for a loss of income.87
Finally one can conclude by saying:
1. The foregoing shows that there are certain ALMP aspects that run counter to SHRs.
One example in this regard is generalized requirements like the mobility requirements in
Norwegian law in § 4-5 fltrl that that do not take into account an individual’s
competencies and, in doing so, restrict the individual’s right to freely choose
employment.88 On the other hand, it has been shown that ALMPs reduce unemployment
rates and absenteeism due to sickness. In the Dutch situation, where employers play the
main part in social protection against the risk of sickness, it has been found that employers
are likely to invest in the well-being of their employees, but at the same time to apply risk
selection at the gate and with regard to their contracting policies. Consequently, whether
ALMPs and HRs are enemies or allies is hard to tell. The question rather seems to be
whether both can be properly balanced or whether possible conflicts with HRs are
justifiable. This would include questions about the adequacy and proportionality of
ALMPs as well as about the interpretation of the relevant SHRs.
84
Eidsvaag, The activation line in social security and social assistance law: a human rights perspective, p. 96.
De Schutter, Activation Policies for the Unemployed: redefining a Human Rights Response, p. 260.
86
De Schutter, Activation Policies for the Unemployed: redefining a Human Rights Response, pp. 260f.
87
De Schutter, Activation Policies for the Unemployed: redefining a Human Rights Response, p. 261.
88
similarly UN Committe on Economic, Social and Cultural Rights in its Concluding Observatiosns: Germany,
20 May 2011 E/C.12DEU/CO/5, para. 19, reviewing unemployment assistance and the obligation for recipients
of unemployment benefits to take up ‘any acceptable job’, The Committee feared a violation of Art. 6 of the
ICES CR and called inter alia on Germany to “ensure that its unemployment benefits schemes takes account of
an indiviudal’s right to freely accept employment of his or her choosing“; see also De Schutter, Activation
Policies for the Unemployed: redefining a Human Rights Response, p. 262.
85
22 / 23
2. Weak supervision of international law is a problem, of course; especially if it concerns
social rights. However, HRs are far too important to settle with such an observation. It
must be borne in mind that international law exists due to the grace of the state parties’
consent to be bound. Where democratic governments do not put their previously proved
consent into practice, it is the responsibility of civil society – including academics – to put
the issue back on the political agenda. It is crucial to develop strategies that may provide
SHRs with more substance and connect them with economic measures and concerns.
From the Norwegian and Dutch cases above we have learned that HRs do play a part in
national activation policies, but not in a systematic and consistent manner. The
development of a legal framework with clear interpretations based on existing case law
and opinions of supervising bodies would be very useful. Such a framework should
contribute to finding the right balance between market economy and human rights
interests.
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