STATES PARTIES GIVEN A MARGIN OF DISCRETION TO DEVISE SYSTEM OF MATERNITY LEAVE BENEFITS (DUNG THI THUY NGUYEN v. THE NETHERLANDS)

Monique Dam summarises the 2006 decision of the Committee on the Elimination of Discrimination against Women in Dung Thi Thuy Nguyen v. The Netherlands

In January 1999, Dung Thi Thuy Nguyen (DTTN) gave birth to a child and took maternity leave.  She worked as a part-time salaried employee and also with her husband as a co-working spouse in his enterprise.  Under her salaried employment arrangement, DTTN was insured under the Sickness Benefits Act and received benefits to compensate for her loss of income during her maternity leave.  In addition, DTTN was insured under the Invalidity Insurance (Self-Employed Persons) Act in respect of her employment in her husband’s enterprise.

In September 1998, DTTN submitted an application for maternity benefits under the Invalidity Insurance (Self-Employed Persons) Act.  In February 1999, the relevant benefits agency denied her claim on the grounds that the benefits from her work with her spouse did not exceed those from her salaried employment.  Section 59(4) of the Invalidity Insurance (Self-Employed Persons) Act – the “anti-accumulation clause” – only permitted payment of benefits (where there were concurrent claims for maternity benefits) in the event they exceeded benefits payable under the Sickness Benefits Act.  This was not the case for DTTN.

DTTN’s objection to the decision was rejected in 1999 and her application to the District Court to review the decision was dismissed in May 2000.  She appealed to the Central Appeals Tribunal, the highest administrative court in the Netherlands in social security cases.  In 2003, the Tribunal upheld the District Court’s dismissal, finding that the anti-accumulation clause did not result in unfavourable treatment of women as compared to men.

In May 2002, DTTN sought maternity leave in connection with a second pregnancy and again applied for benefits.  In June 2002, the benefits agency decided that DTTN’s entitlement under the Sickness Benefits Act would be supplemented by the difference between her entitlements under the two applicable Acts.  DTTN lodged an appeal against this decision, which she subsequently withdrew after the decision of the Central Appeals Tribunal regarding benefits for her first maternity leave was rendered.

In December 2003, DTTN submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee).  She claimed that the lack of full compensation for loss of income due to pregnancy constituted a violation of article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which requires States Parties to “take appropriate measures … to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances.”

The Netherlands’ observations on admissibility

The Netherlands challenged the admissibility of the communication on two grounds.

First, the Netherlands claimed that DTTN had failed to exhaust domestic remedies in connection with the second period of maternity leave, as required by article 4(1) of the Optional Protocol.  This included lodging an appeal with the Central Appeals Tribunal.

Second, the Netherlands claimed that the communication was inadmissible ratione temporis pursuant to article 4(2)(e) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).  It submitted that the relevant facts occurred prior to the entry into force of the Optional Protocol for the State Party.  Specifically, it claimed that the decisions of the benefits agency were made in February 1999 and June 2002, whereas the Optional Protocol entered into force for the Netherlands in August 2002.

CEDAW Committee’s admissibility decision

A majority of the CEDAW Committee declared the communication partly admissible.

It found that domestic remedies had effectively been exhausted, in accordance with article 4(1) of the Optional Protocol.  It noted that the State Party had not claimed that DTTN had failed to exhaust domestic remedies in connection with the first period of maternity leave.  In addition, it concluded that domestic remedies were unlikely to bring DTTN effective relief in connection with the second period of maternity leave and, therefore, such remedies did not need to be exhausted under article 4(1).

The majority nevertheless concluded that the communication was only partly inadmissible under article 4(2)(e) of the Optional Protocol, as some of the relevant events occurred prior to the entry into force of the Optional Protocol for the Netherlands.  The majority adopted the view that the key question to be answered was when had “the Dutch legislation at issue been applied to the alleged actual detriment of the author (i.e. what the facts of the case are)?”  The majority took into account that the actual leave periods applied for by DTTN spanned two 16-week periods.  It explained that the first period of leave predated the entry into force of the Optional Protocol for the Netherlands and could therefore not be the subject of a communication.  However, it also explained that the second period of leave extended beyond the entry into force of the Optional Protocol for the Netherlands and could therefore form the basis of a communication under the Optional Protocol.

State Party’s observations on the merits

In its observations on the merits, the State Party submitted that it had not violated CEDAW.

In relation to the anti-accumulation clause of the Invalidity Insurance (Self-Employed Persons) Act, which DTTN alleged to be incompatible with article 11(2)(b) of CEDAW, the Netherlands observed that the word “pay” is generally used to refer to a salary rather than to income from business profits.  The Netherlands claimed that the clause was introduced to guard against giving more entitlements to self-employed women or women who worked in their husbands’ businesses who were insured in respect of the same risk under two sets of regulations.  The Netherlands reiterated that entitlement to maternity benefits under the Invalidity Insurance (Self-Employed Persons) Act is designed to provide an advantage exclusively for women and given that men could not avail themselves of the provision, the Act could not be viewed as discriminatory against women.

In addition, the Netherlands submitted that article 11(2)(b) of CEDAW does not require full compensation for loss of income resulting from pregnancy and childbirth.  Rather, States Parties are allowed certain discretionary powers in fulfilling the obligation to enable women to provide for themselves in the period of pregnancy and childbirth.

CEDAW Committee’s views on the merits (majority)

A majority of the Committee concluded that the Netherlands had not violated article 11(2)(b) of CEDAW.

The majority considered that the application of s 59(4) of the Invalidity Insurance (Self-Employed Persons) Act was not discriminatory towards DTTN on the grounds of maternity or marriage contained in article 11(2) of CEDAW.  Rather, the majority took the view that the grounds for the differential treatment were related to DTTN’s work for her spouse’s enterprise as well as in salaried employment.

The majority affirmed that article 11(2)(b) of CEDAW requires States Parties “to introduce maternity leave with pay or comparable social benefits without loss of former employment, seniority or social allowances.”  It also clarified that States Parties have “a certain margin of discretion to devise a system of maternity leave benefits to fulfil Convention requirements.”  According to the majority, the maternity leave system devised by the State Party fell within its margin of discretion under CEDAW.  It explained that “[i]t is within the State party’s margin of discretion to determine the appropriate maternity benefits within the meaning of article 11, paragraph 2 (b) of the Convention for all employed women, with separate rules for self-employed women that take into account fluctuating income and related contributions.”  It further explained that “[i]t is also within the State party’s margin of discretion to apply those rules in combination to women who are partly self-employed and partly salaried workers.”

Individual opinion (dissenting)

Committee members Gabr, Schöpp-Schilling and Shin issued a dissenting opinion in which they concluded that the State Party had violated article 11(2)(b) of CEDAW.

Whilst the dissenting Committee members agreed with the majority’s views about the scope of article 11(2)(b) with respect to protections against direct discrimination, they concluded that the anti-accumulation clause may discriminate indirectly against women who work in multiple part-time roles.   This is because the clause does not fully compensate women who engage in both salaried part-time work and self-employment.  The dissenting members also expressed particular concern regarding the disproportionate impact of disadvantageous part-time working conditions on women.

The dissenting Committee members recommended that the State Party gather data on the number of women and men working as part-time salaried employees and self-employed persons and, accordingly, review the “anti-accumulation clause” and amend its Invalidity Insurance (Self-Employed Persons) Act.

Communication No. 3/2004, UN Doc. CEDAW/C/36/D/3/2004 (29 August 2006)

Decision

Case comment (Frances Raday)

 

Monique Dam is an International Studies and LL.B. student at the University of New South Wales and was an intern with the Australian Human Rights Centre in Semester 1, 2013.

 

This summary is published as part of the Optional Protocol to CEDAW website – Australian Human Rights Centre partnership.

AHRC

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