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In late 2005, the Dutch Trade Union Federation (FNV) and the Dutch Federation of Small and Medium-Sized Enterprises (MKB-Nederland) called for the reinstatement of a public maternity benefit scheme for self-employed people. The scheme was abolished in 2004, with the idea being that it could be replaced by private insurance arrangements. However, in practice insurers have reportedly declined many applications and self-employed people have been deterred by high premiums. At the request of parliament, the government has also consulted the International Labour Organisation (ILO) and the Dutch Equal Treatment Commission about whether it was entitled under international and EU law to abolish the maternity benefits.
In 1998, the government introduced a public occupational disability insurance scheme specifically for the self-employed, through the Occupational Disability Insurance (Self-employed Persons) Act (Wet op de arbeidsongeschiktheidsverzekering zelfstandigen, WAZ). Women’s organisations had for some time been calling for the introduction of maternity benefits for the self-employed, referring to the awkward position of self-employed women who wish to keep their business going while having a child and ceasing work for several months. Hiring a substitute could be an option in these cases, but the costs involved are prohibitive for many, and the decision to have a child often means an end to fledgling businesses. A national public insurance scheme organised by government was argued to be the most efficient and effective solution to the problem. The government appeared sympathetic to these arguments and introduced a new 'substitute benefit' for self-employed people in the WAZ, which corresponded in length to maternity leave for employees. The reason for including this benefit in the occupational disability scheme was largely pragmatic: the social insurance system was not familiar with other forms of social security for the self-employed and creating an entirely separate system for a limited benefit such as the maternity scheme would have been unnecessarily costly.
Private insurance
In 2002, a centre-right government came to office, which had a policy of allowing private initiative to displace government intervention wherever possible. In this context, the relatively new occupational disability insurance scheme for the self-employed came under fire from the new administration. At the same time, the scheme's target group appeared to come to the conclusion that a public disability insurance system was unnecessarily costly and that customised forms of private insurance would probably be less expensive in most cases. Thus, in 2002, a 'win-win' situation emerged; the target group wanted to be released from the compulsory insurance scheme and the government wanted to find ways to limit public intervention in social security wherever possible.
An End of Access to the Occupational Disability Insurance (Self-employed Persons) Act (Einde Toegang Wet op de Arbeidsongeschiktheidsverzekering zelfstandigen) was submitted to parliament in 2003 and adopted a year later (NL0405102F), with only one issue proving contentious. The opposition viewed losing the maternity benefits provision included in the WAZ as a great pity. Various members of parliament argued that the measure was not only counterproductive but that it was also open to question under international law. However, the government was not open to the idea of finding an alternative approach whereby occupational disability insurance would be terminated for the self-employed but maternity benefits covered in another way. The minister concerned saw this as a question of all or nothing and was not impressed by the argument hinging on international law. In his opinion, careful attention had been paid to preserving the same level of social protection prescribed by the EU Directive (92/85/EEC) on pregnant workers and workers who have recently given birth or are breastfeeding, and by various International Labour Organisation (ILO) Conventions.
Calls for reinstatement
While the repeal of the WAZ was undergoing parliamentary scrutiny, some members of parliament expressed concern about the abolition of maternity benefits for the self-employed. It was argued that pregnancy is not simply a 'risk' to be insured by conventional means - it could indeed be argued that it is not a risk at all. There was also a fear that there would be a problem in finding private insurers willing to provide the relevant insurance to self-employed people (as there had been before the WAZ came into force). Also, in terms of equality, it was seen as worrying to be repealing a measure designed to promote equal opportunities in the labour market for men and women. Last but not least, it was seen as questionable if such a backward step is permissible in terms of international and EU law. In response to these concerns, the minister promised parliament that the measure's acceptability in terms of international and EU law would be assessed by referring the matter to two authoritative bodies. The ILO will assess it in terms of the United Nations Convention on the Elimination of all Forms of Discrimination Against Women and the Dutch Equal Treatment Commission (Commissie Gelijke Behandeling, CGB) will examine possible complications in relation to EU law. The questions were referred to these two organisations in mid-2005 - around a year after parliamentary acceptance of the repeal - and a response is expected in the course of 2006.
Various interest groups have announced that they do not plan to wait for the ILO and CGB to complete their deliberations, and are calling for the maternity benefit scheme for the self-employed to be reinstated. The Dutch Trade Union Federation (Federatie van Nederlandse Vakbonden, FNV) and the Centre of Expertise for Women and Law (Expertisecentrum voor Vrouwen en Recht, Clara Wichmann Instituut) are preparing proceedings against the government seeking reinstatement of the benefits. Even the Dutch Federation of Small and Medium-Sized Enterprises (MKB Nederland) is not prepared to wait for the review, and wants the government to reinstate swiftly a form of public maternity insurance for the self-employed. Recent events at an insurance company, Movir, have lent weight to this view. A court recently ruled against Movir because it imposed a waiting period before letting a female customer have the risk of pregnancy included in her current occupational disability insurance. The court ruled that this was unlawful, as EU Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services (EU0410204F) prescribes that the insurer must accept this risk without imposing any further conditions. Overall, it appears that insurers are declining applications for self-employed maternity insurance and that many potential customers are being put off because of high premiums
Commentary
The Dutch government’s approach overlooks the issue of whether the 'risk' of maternity can be insured privately. Such an approach is arguably both narrow and without context, and could even be considered short-sighted from a gender perspective. The Movir insurance company will most probably appeal against the recent court ruling (see above) and it could take a very long time for the case to be settled at the highest level. After all, by analogy, insurers tend to shy away from insuring a highly flammable or burning house. Consequently, they will arguably do everything possible to avoid having to honour their unconditional obligation to accept applications from customers. This was the case with regard to maternity insurance for the self-employed before the introduction of the WAZ and there is no reason to believe that the situation will be different now, even after the adoption of the 2004 EU Directive on equal treatment between men and women in the access to and supply of goods and services. Even if this were the case, this does little to resolve the equal treatment issue in this respect. The position of male and female entrepreneurs would be unequal in terms of occupational disability insurance. Young entrepreneurs will in most cases eventually consider starting a family, and the female entrepreneur may then realise that this may indeed be a reason to be insured against occupational disability and therefore the likelihood of become pregnant. The market cannot remove such inequality. The Dutch parliament realised this in 1998 when it introduced the WAZ but appears to have lost sight of it six years' later. The Movir case provides MKB Nederland with the hope that government will nonetheless see the merits and necessity of a national public arrangement for this form of insurance. FNV and legal experts expect the same outcome from EU legislation and the issues referred to the CGB and ILO. (Mies Westerveld and Marianne Grünell, HSI)