COLLECTIVE AGREEMENTS AND INDI VIDUAL CONTRACTS OF EMPLOYMENT IN LABOUR LAW THE NETHERLANDS With thanks to Ivo van der Helm(Department of Labour law and social security law, University Utrecht) for his useful comment on a earlier version of this report
COLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT IN LABOUR LAW : THE NETHERLANDS* * With thanks to Ivo van der Helm (Department of Labour law and social security law, University Utrecht) for his useful comment on a earlier version of this report
VAN HOEK Aukje A H van Hoek III C Collective labour relations: the institutional context Collective labour relations are shaped by the interaction between the unions. employers'assocations and the govemment. In the Netherlands most unions are organized in one of the two federations. the christian CNv and the neutral FNv(the latter being the product of a merger between the ca tholic and socia list federations in 1976). There is however a separate federation for unions representing the higher-level personnel groups. The federations are the contactpersons for both the central employers'organizations and the national government on general ocio-econom ic issues. They are not involved in direct negotiations on collective agreements, a task which lies with the unions. The federations can issue recommendations to the unions, but the latter are not legally or hierarchially bound by such advice. Besides their national coordinating role, the federations play a ole in representing the employees at the national and intemational levels, e.g. in the European Trade Union Confederation and the International Confederation of ndependent Unions. Mem bership of the federations is only open to unions The unions are predom inantly organized a long the lines of economic activity After the Second World War and a gain in the 1990s, the unions demonstrated a tendency to merge into ever larger organisations. In 1997 the unions for the arts information technology and the meda all merged. Another recent merger occurred 1998 when several FNV unions representing particular branches formed one union with over 500.000 members. 3 Time and aga in, however, members of a particular rofession would not feel sufficiently represented by these unions and would create (or mainta in)separate professional unions. In the late 1980s, for example, a separate Centre forthe Enforcement of European Law, University ofUtrecht 1. The federation was established m 1976, the official merger took place in 1981: w. Albeda, WJ Dercksen, FH Tros, Arbeidsverhoudingen n Nederland, Alphen a/d Rin: Samsom, 6th revised dition 1998, p. 54 P. Windmuller, C. de galan, A F. van Zweden, Arbeidsverhoud ngen in Nederland, Utrecht: Het Spectrum, 6th edition 1987, p. 268 and 280; WIPM. Fase 1980 p. 12, AAH van Hoek, Internationale mobiliteit van werknemers, Den Haag: SDU 2000, P 33; W. Albeda, w.J. Dercksen, F. HTros, Arbeidsverhoud ingen in Nederland, Alphen a/d Rin: Samsom, 6th rev sed editon 1998, p.52 The merger involved the unon forservices, the union for transport the union for the foodstuffs ndnutritionsectorandtheunonforndustryhttp:/aWww.bondgenotenfiv.nlktart/ibg/fra mes/index. htm; W. Albeda, w.J. Dercksen, F.H. Tros, Arbeidsverhoudngen n Nederland, Alphen a/d Rin: Samsom, 6th rev sed edition 1998, p 52; H.L. Bakels, I P. Ascher-Vonk, WJ.P.M. Fase Schets van het Neder lands Arbeidsrecht, Deventer: Kluwer, 1 6thedition 2000, p. 177 Examples of unions representing specific profess ions are the union for nurses and assistant-nurses, the union for the national railways tram drivers and tram conductors, theunion for pilots in civil aviaton and the union for medial doctors employed under a labour contract. Some of these profess onal mons are completely ndependent and not affiliated with amy of the three
VAN HOEK 2 Aukje A.H. van Hoek** III C 1 Collective labour relations: the institutional context Collective labour relations are shaped by the interaction between the unions, employers’ assocations and the government. In the Netherlands most unions are organized in one of the two federations: the christian CNV and the neutral FNV (the latter being the product of a merger between the catholic and socialist federations in 1976 1 ). There is however a separate federation for unions representing the higher-level personnel groups. The federations are the contactpersons for both the central employers’ organizations and the national government on general socio-economic issues. They are not involved in direct negotiations on collective agreements, a task which lies with the unions. The federations can issue recommendations to the unions, but the latter are not legally or hierarchially bound by such advice. Besides their national coordinating role, the federations play a role in representing the employees at the national and international levels, e.g. in the European Trade Union Confederation and the International Confederation of Independent Unions. Membership of the federations is only open to unions. The unions are predominantly organized along the lines of economic activity. After the Second World War and again in the 1990s, the unions demonstrated a tendency to merge into ever larger organisations.2 In 1997 the unions for the arts, information technology and the media all merged. Another recent merger occurred in 1998 when several FNV unions representing particular branches formed one union with over 500.000 members.3 Time and again, however, members of a particula r profession would not feel sufficiently represented by these unions and would create (or maintain) separate professional unions.4 In the late 1980s, for example, a separate ** Centre for the Enforcement of European Law, University of Utrecht. 1. The federation was established in 1976, the official merger took place in 1981: W. Albeda, W.J. Dercksen, F.H. Tros, Arbeidsverhoudingen in Nederland, Alphen a/d Rijn: Samsom, 6th revised edition 1998, p. 54. 2. J.P. Windmuller, C. de Galan, A.F. van Zweden, Arbeidsverhoudingen in Nederland, Utrecht: Het Spectrum, 6th edition 1987, p. 268 and 280; W.J.P.M. Fase 1980 p. 12, A.A.H. van Hoek, Internationale mobiliteit van werknemers, Den Haag: SDU 2000, p. 33; W. Albeda, W.J. Dercksen, F.H.Tros, Arbeidsverhoudingen in Nederland, Alphen a/d Rijn: Samsom, 6th revised edition 1998, p. 52. 3. The merger involved the union for services, the union for transport, the union for the foodstuffs and nutrition sector and the union for industry. http://www.bondgenoten.fnv.nl/start/fbg/frames/index.htm; W. Albeda, W.J. Dercksen, F.H. Tros, Arbeidsverhoudingen in Nederland, Alphen a/d Rijn: Samsom, 6th revised edition 1998, p. 52; H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition 2000, p. 177. 4. Examples of unions representing specific professions are the union for nurses and assistant-nurses, the union for the national railways’ train drivers and train conductors, the union for pilots in civil aviation and the union for medical doctors employed under a labour contract. Some of these professional unions are completely independent and not affiliated with any of the three
COLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT union for nurses and paramedics came into existence. The 1970s saw the appearance and rise of unions for higher-paid employees. The formation of these unions woul often be a reaction to specific incidents or specific union politics. b The predominant union politics in the 1970s was aimed at a levelling of the differtial between the higher and lower wage groups (nivellering'). For that purpose the scope of application of collective a greements was extended to include the higher wage groups he employees concerned objected to this. Until then, they had not been covered by collective agreements and did not feel that they were adequately represented by the traditional unions. 7 As a result, the unions representing higher-level personnel flourished and a separate federation organizing these unions was created in 1974 Since then there have been three federations represented at the central level, the CNV, the FNv and the Unie MHP. Other professional unions are either independent or are members of the existing federations, the cnv or Fnv. Just as the unions have reshaped their structure in recent times, so have the employers. Since the mid-1990s, the employers are no longer organised along olit ical and/or religious lines, but ma inly follow econom ic structures. The VNO-NCW federation? is the major representative of the Dutch private sector representing the larger enterprises in both socaland econom ic issues. It is associated with the General Dutch Employers'Organisation(AWVN), which concentrates on the interests of undertakings in their function as employers. The VNO-NCw federation is a mem ber of the European confederation of employers, the,, 10 Small and medium-sized enterprises are organised in MKB-Nederland, entreprises active in agriculture in LTO-Nederland. The three federations cooperate within the RCO: the council of central organisations of enterprises. Membership of the federations is open to federations, branchorganisations, local organisations and federations(FNV, CNV, higher Stricly speaking separate unions for higher-level employees already had a lng tradition. Political events provided these un ons witha strong growth incentive. H L Bakels, I P. Ascher- Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbedsrecht, Deventer: Khwer, 1 6th edition(2000, p. 181)mention in this respectthe mergers between the main unions as well as their wage policies. A.A. H. van Hoek, Internationale mobiliteit van werknemers, Den Haag: SDU2000, 33-34 And of course they di not appreciate the unions' politics which resulted in a(relative eduction oftheir income H.L. Bakek, I P. Ascher- Vonk, W.J.PM. Fase, Schets van het Neder lands Arbeidsrecht, Deventer: Khuwer, 16th edition p. 182, w. Albeda, W.J. Dercksen, F.H. Tros, Arbeidsverhoudngen in Nederland, Alphen al Rijn: Samsom, 6th revisededition 1998, p. 39 ff. They merged in 1997 012 The VNO-NCw also forms part of the Dutch delegation to the ILO http:/www.iboorg/public/english/dalogue/actemninks/1998europe.htm Since 1995 Since 1995 Alongside these three federations of entreprises in the market economy, several organisations promote the nterest of employers n health care and education and other govemmental and semigpvemmental nstitutions. These organisations do not participate n the social dialogue in the STAR and the SER HL Bakels, I P. Ascher-Vonk, WJP.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16thedition 2000, 182
COLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT 3 union for nurses and paramedics came into existence. The 1970s saw the appearance and rise of unions for higher-paid employees.5 The formation of these unions would often be a reaction to specific incidents or specific union politics.6 The predominant union politics in the 1970s was aimed at a levelling of the differtial between the higher and lower wage groups (‘nivellering’). For that purpose the scope of application of collective agreements was extended to include the higher wage groups. The employees concerned objected to this. Until then, they had not been covered by collective agreements and did not feel that they were adequately represented by the traditional unions.7 As a result, the unions representing higher-level personnel flourished and a separate federation organizing these unions was created in 1974. Since then there have been three federations represented at the central level, the CNV, the FNV and the Unie MHP. Other professional unions are either independent or are members of the existing federations, the CNV or FNV. Just as the unions have reshaped their structure in recent times, so have the employers. Since the mid-1990s, the employers are no longer organised along political and/or religious lines, but mainly follow economic structures. 8 The VNO-NCW federation9 is the major representative of the Dutch private sector, representing the larger enterprises in both social and economic issues. It is associated with the General Dutch Employers’ Organisation (AWVN), which concentrates on the interests of undertakings in their function as employers. The VNO-NCW federation is a member of the European confederation of employers, the ‘UNICE’.10 Small and medium-sized enterprises are organised in MKB-Nederland11, entreprises active in agriculture in LTO-Nederland12. The three federations cooperate within the RCO: the council of central organisations of enterprises.13 Membership of the federations is open to federations, branchorganisations, local organisations and federations (FNV, CNV, higher personnel). 5. Stricly speaking, separate unions for higher-level employees already had a long tradition. Political events provided these unions with a strong growth incentive. H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition (2000, p. 181) mention in this respect the mergers between the main unions as well as their wage policies. 6. A.A.H. van Hoek, Internationale mobiliteit van werknemers, Den Haag: SDU 2000, 33-34. 7. And of course they did not appreciate the unions’ politics which resulted in a (relative) reduction of their income. 8. H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition p. 182, W. Albeda, W.J. Dercksen, F.H. Tros, Arbeidsverhoudingen in Nederland, Alphen a/d Rijn: Samsom, 6th revised edition 1998, p. 39 ff. 9. They merged in 1997. 10. The VNO-NCW also forms part of the Dutch delegation to the ILO: http://www.ilo.org/public/english/dialogue/actemp/links/1998/europe.htm. 11. Since 1995. 12. Since 1995. 13. Alongside these three federations of entreprises in the market economy, several organisations promote the interest of employers in health care and education and other governmental and semi-governmental institutions. These organisations do not participate in the social dialogue in the STAR and the SER. H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition 2000, 182
VAN HOEK single undertakings. Their function is mainly political 14 They partake in the social ia logue which takes place in the Joint Labour Council (Stichting van de arbeid)and the Socal and Economic Council (see below) but neither the VNO-NCw nor the MKB are themselves parties to collective agreements. They do coordinate the negotations, however. 5 Collective agreements are closed by branchorganisation and/or(groups of) enterprises. There are quite a few branchorganisations, ometimes more than one within the same branch of industry 7 The largest and most influential is the FME-CWm, which since a merger in 1995 is the main representative of the employers in the steel industry, in synthetic fibres, electronics ind the electrotechnical industry. The membership of the FME-CWM includes multinational corporations like Philips, Stork and Corus Employers'organisations and the unions work together at different levels, in different institutions. Until recently they were fully responsible for running the labour exchange. 8 They implemented both the general, statute-based social security and theadditional social security at branch level. They(still)operate social funds and arbitration bodies. However, the Dutch system of habour reltions does not include rticipation in or influence on the judicary Labour conflicts are dealt with through the ordinary (civil)courts. The highest-level organisations of employers and employees participate in two permant institutions, the Stichting van de arbeid (Joint Labour Council)and the Social Economische Raad(Social and Econom ic Council) The SER is the central institution within a system of sector organisations under public law. It consists of 33 members, 1 l of which are appointed by the centra employees'organisations(FNV8, CNV 2, MHP 1), 1l represent the employers (VNO 7, MKB 3, LTO 1)and 1 l members are independent and are appointed by the Crown. The sector organisations, of which the SER is the supervisory body, have (lim ited)legislative powers, e.g. in the areas of registration, professional standard setting and abour conditions. The latter competence, which stands in direct ompetition with negotiated collective agreements, is rarely used. 9 The SER is one of the main advisory bodies of the government and in that capacity it deals with wide range of socal and econom ic issues. The Joint Labour Council or STAR is composed of representatives of the social partners only. It advises the govemment on ocial issues and is, inter alia, consulted during the process of decking collective agreements to be generally applicable. Since both the Ser and the STar advise the H.L. Bakek, I P. Ascher- Vonk, W.J.PM. Fase, Schets van het Nederlands Arbeidsrecht Deventer: Kluwer, I 6thedition 2000, P. 183. Inaddition, they offer advice to ther members. 15 H.L. Bakek, I P. Ascher- Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht Deventer. Kluwer, I 6thedition 2000, p. 183 LTO is a collective agreements. The construction sector has seven different organisations within the one federation, n the road-haulage sector there are two organisations of employers, each negotiating their own collective As of l January 2002, the labourexchanges have changed int centers for employment and income which perform functions with regards to unemp by ment benefit and socal aid as well. The H L. Bakes, I P. Ascher- Vonk, W.J.PM. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16thedition 2000, p. 294
VAN HOEK 4 single undertakings. Their function is mainly political.14 They partake in the social dialogue which takes place in the Joint Labour Council (Stichting van de Arbeid) and the Social and Economic Council (see below) but neither the VNO-NCW nor the MKB are themselves parties to collective agreements. They do coordinate the negotiations, however.15 Collective agreements are closed by branchorganisations and/or (groups of) enterprises. 16 There are quite a few branchorganisations, sometimes more than one within the same branch of industry.17 The largest and most influential is the FME-CWM, which since a merger in 1995 is the main representative of the employers in the steel industry, in synthetic fibres, electronics and the electrotechnical industry. The membership of the FME-CWM includes multinational corporations like Philips, Stork and Corus. Employers’ organisations and the unions work together at different levels, in different institutions. Until recently they were fully responsible for running the labour exchange.18 They implemented both the general, statute-based social security and the additional social security at branch level. They (still) operate social funds and arbitration bodies. However, the Dutch system of labour relations does not include participation in or influence on the judiciary. Labour conflicts are dealt with through the ordinary (civil) courts. The highest-level organisations of employers and employees participate in two permant institutions, the Stichting van de Arbeid (Joint Labour Council) and the Sociaal Economische Raad (Social and Economic Council). The SER is the central institution within a system of sector organisations under public law. It consists of 33 members, 11 of which are appointed by the central employees’ organisations (FNV 8, CNV 2, MHP 1), 11 represent the employers (VNO 7, MKB 3, LTO 1) and 11 members are independent and are appointed by the ‘Crown’. The sector organisations, of which the SER is the supervisory body, have (limited) legislative powers, e.g. in the areas of registration, professional standard setting and labour conditions. The latter competence, which stands in direct competition with negotiated collective agreements, is rarely used.19 The SER is one of the main advisory bodies of the government and in that capacity it deals with a wide range of social and economic issues. The Joint Labour Council or STAR is composed of representatives of the social partners only. It advises the government on social issues and is, inter alia, consulted during the process of declaring collective agreements to be generally applicable. Since both the SER and the STAR advise the 14. H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition 2000, p. 183. In addition, they offer advice to their members. 15. H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition 2000, p. 183. 16. LTO is a party to collective agreements. 17. The construction sector has seven different organisations within the one federation, in the road-haulage sector there are two organisations of employers, each negotiating their own collective agreement. 18. As of 1 January 2002, the labourexchanges have changed into ‘centers for employment and income’ which perform functions with regards to unemployment benefit and social aid as well. The social partners do not participate in the management of these centers. 19. H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition 2000, p. 294
COLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT govemment on social issues, the tasks of these institutions overlap to a certain extent If both are consulted on the same issue or a similar issue, they try to a void reaching contradictory conclusions by informal cooperation. Twice a year, in the autumn and in the spring, the highest-level institutions of employers and employees hold a 'conference with govemment officials in which they discuss the economic developments and prognoses. At this conference they try to reach an agreement on the desired developments in the field of wa ges and other la bour conditions. This agreement functions as a recommendation to the unions and employers'organisations for the next round of negotiations Collective labour relations: the legal context 2. Genera In the Netherlands, the legal position of the unions and the system of industri relations is-on the whole- based on general rules on the one hand, and intemational agreements on the other. Although collective agreements and their general applicability are covered by specal statutes, the negotiating process leading up to their conclusion has received little or no attention from the legislature. The Constitution does not contain any articles which specifically perta in to industria relations. The freedom to establish trade unions, to operate as such and be membe thereof are all covered by the right of association guaranteed in Article 8 of the Constitution. The unions as institutions are govemed by the rules on associations laid down in Articles 26 ff. of the Civil Code 2I The right to strike has not been the subject of any codification whatsoever and is based on case law. This lack constitutional protection has not hampered the development of unions and industral lations in the Netherlands. This in in part the result of the Dutch system of judicial ontrol, which dim inishes the legal effect of the Constitution considerably and favours international conventions instead. The legislature being corrected by the courts cannot be based on a violation of the Constitution: article 120 of the Constitution specifically states that the courts will not judge the constitutionality of statutes and international conventions. The courts can set aside statutory prov isions, however, if these prov isions violate treaty provisions hav ing direct effect within the Dutch legal system 22 Such generally binding treaty provisions can be found in the European Socal Charter(Article 6 section 4 on the right to strike is recognized as Jacobs, Het recht op collectief onderhandelen in rechtsvergelijkend en Europees perspectief Alphen aan den Rijn/Brussel: Samsom/HD Tjeenk Willink 1986,p. 95 H L. Bakek, I P. Ascher-Vonk, W.J.PM. Fase, Schets van het Neder lands Arbeidsrecht, Deventer: Kluwer, 16theditionp 184-186 Art 94 of the Constitution stipulates that statutes will not receive application if this application violates a generally bndingprovis on of either a treaty or decis ion of an intemational organisation. Whether a treaty provs ions is cons idered to be general bid ng or not depends primarily on the ordng of the prov iion: can it impose obligations without further mplementation? HR 30 May 1986, NJ1986, 688$ 3.2, E. Verhulp, Vrihed van meningsuitng van werknemers en ambtenaren
COLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT 5 government on social issues, the tasks of these institutions overlap to a certain extent. If both are consulted on the same issue or a similar issue, they try to avoid reaching contradictory conclusions by informal cooperation. Twice a year, in the autumn and in the spring, the highest-level institutions of employers and employees hold a ‘conference’ with government officials in which they discuss the economic developments and prognoses. At this conference they try to reach an agreement on the desired developments in the field of wa ges and other labour conditions. This agreement functions as a recommendation to the unions and employers’ organisations for the next round of negotiations. 2 Collective labour relations: the legal context 2.1 General In the Netherlands, the legal position of the unions and the system of industrial relations is - on the whole – based on general rules on the one hand, and international agreements on the other. Although collective agreements and their general applicability are covered by special statutes, the negotiating process leading up to their conclusion has received little or no attention from the legislature. The Constitution does not contain any articles which specifically pertain to industrial relations. The freedom to establish trade unions, to operate as such and be members thereof are all covered by the right of association guaranteed in Article 8 of the Constitution.20 The unions as institutions are governed by the rules on associations laid down in Articles 26 ff. of the Civil Code.21 The right to strike has not been the subject of any codification whatsoever and is based on case law. This lack of constitutional protection has not hampered the development of unions and industrial relations in the Netherlands. This in in part the result of the Dutch system of judicial control, which diminishes the legal effect of the Constitution considerably and favours international conventions instead. The legislature being corrected by the courts cannot be based on a violation of the Constitution: Article 120 of the Constitution specifically states that the courts will not judge the constitutionality of statutes and international conventions. The courts can set aside statutory provisions, however, if these provisions violate treaty provisions having direct effect within the Dutch legal system.22 Such generally binding treaty provisions can be found in the European Social Charter (Article 6 section 4 on the right to strike is recognized as 20. Jacobs, Het recht op collectief onderhandelen in rechtsvergelijkend en Europees perspectief, Alphen aan den Rijn/Brussel: Samsom/H.D. Tjeenk Willink 1986, p. 95. 21. H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition p. 184-186. 22. Art. 94 of the Constitution stipulates that statutes will not receive application if this application violates a generally binding provision of either a treaty or a decision of an international organisation. Whether a treaty provisions is considered to be general binding or not, depends primarily on the wording of the provision: can it impose obligations without further implementation? HR 30 May 1986, NJ 1986, 688 § 3.2; E. Verhulp, Vrijheid van meningsuiting van werknemers en ambtenaren, Den Haag: SDU 1996, p. 35