VAN HOEK e. ving direct effect 23), the European Convention on Human Rights and the emational Convention on Social and Economic Rights ILO conventions will not as a rule have direct effect. yet the noms conta ined therein have influenced dutch la bour law. for several decades a fter the Second World War, la bour conditions were part of the general econom ic policy and as such a primary concen for the central government. The govemment had several legal instruments to control wages and other primary labour conditions, both in the profit and the non-profit sectors of the economy. These instruments did not sit well with the international obligations taken on by the Netherlands 4 and were gradually abandonded. One of the ast vestiges of this interventionist policy was the Pay Adjustment(semi-public sector) Act25, which was repealed in 1995.26 This Act govemed the wage levels of employees in organisations funded by the govemment As it severely limited the right of negotiation for employers and unions, it was deemed to be incompatible with intemational law. To date, all that remains of the powers of government to intervene in the setting of wages is de Wage Formation wages in an economic emergency. Article 5 ff. conta in a procedure under which the Minister of Socal Affairs may create regulations similar in content and effect to collective agreements(see below). Both powers are rarely use 2.2 Freedomand duty to negotiate Collective agreements in dutch law are based on the aw of contract. In line with the la won contracts in general, parties to the collective agreement, i.e. employers and the unions, have freedom as to whether they want to negotiate and with whom. This means that Dutch aw does not contain a general obligation to negotiate, enter into agreements and/or regularly amend them as some other countries do(e.g. france) As collective negotiations are widely accepted in industry, most employers will be willing to negotiate. If not, pressure can be applied by way of industralaction, but no employer can be forced by law to enter into negotations. Once negotations are commenced, however, the freedom to choose with whom to negotate is lim ited by law, a lbeit only marginally. Dutch law contains hardly any specific conditions which parties to a collective agreement have to fulfil Any union may enter into negotations and become a party to collective agreements, the only prerequisite being that the union is an association with full legal capacity which has been given the authority to 23. HR 30 May 1986, NJ1986, 688; Jacobs 1986, p. 154; H.L. Bakes, I.P. Ascher- Vonk, W.J. P.M Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16thedition 2000, P. 233. K Boonstra, The ILOand the Netherlands, Leiden: Stichting NJCM-Boekenj 1996 Kamerstuk 22830nr 1 Stb. 1993.557 and 1994.985 Note to hR ll December 1992. NJ1996 229 L M. van der Sluis, Toelating tot CAO-onderhandelingen, Arbedsrecht 1995/3, p. 33; J. van der Hel Rechtop CAO-overleg, Arbeidsrecht 1999/10, P. 19-22; C.E.M. Schutte, Overzichtvan het CAO-recht, 2th edition 1998,$2.1.2, H L. Bakels, I P. Ascher- Vonk, WIP M Fase, Schets van het Nederlands Arbedsrecht, Deventer. Kluwer, 16th edition, 203-204
VAN HOEK 6 having direct effect 23 ), the European Convention on Human Rights and the International Convention on Social and Economic Rights. ILO conventions will not – as a rule – have direct effect. Yet the norms contained therein have influenced Dutch labour law. For several decades after the Second World War, labour conditions were part of the general economic policy and as such a primary concern for the central government. The government had several legal instruments to control wages and other primary labour conditions, both in the profit and the non-profit sectors of the economy. These instruments did not sit well with the international obligations taken on by the Netherlands24 and were gradually abandonded. One of the last vestiges of this interventionist policy was the Pay Adjustment (semi-public sector) Act25, which was repealed in 1995.26 This Act governed the wage levels of employees in organisations funded by the government. As it severely limited the right of negotiation for employers and unions, it was deemed to be incompatible with international law. To date, all that remains of the powers of government to intervene in the setting of wages is de Wage Formation Act27. Article 10 of this Act contains the possibility for the government to freeze wages in an economic emergency. Article 5 ff. contain a procedure under which the Minister of Social Affairs may create regulations similar in content and effect to collective agreements (see below). Both powers are rarely used. 2.2 Freedom and duty to negotiate28 Collective agreements in Dutch law are based on the law of contract. In line with the law on contracts in general, parties to the collective agreement, i.e. employers and the unions, have freedom as to whether they want to negotiate and with whom. This means that Dutch law does not contain a general obligation to negotiate, enter into agreements and/or regularly amend them as some other countries do (e.g. France). As collective negotiations are widely accepted in industry, most employers will be willing to negotiate. If not, pressure can be applied by way of industrial action, but no employer can be forced by law to enter into negotiations. Once negotiations are commenced, however, the freedom to choose with whom to negotiate is limited by law, albeit only marginally. Dutch law contains hardly any specific conditions which parties to a collective agreement have to fulfil. Any union may enter into negotiations and become a party to collective agreements, the only prerequisite being that the union is an association with full legal capacity which has been given the authority to 23. HR 30 May 1986, NJ 1986, 688; Jacobs 1986, p. 154; H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition 2000, p. 233. 24. K. Boonstra, The ILO and the Netherlands, Leiden: Stichting NJCM-Boekerij 1996. 25. Wet arbeidsvoorwaarden gesubsidieerde en gepremieerde sector. 26. Kamerstuk 22830 nr. 1, Stb. 1993, 557 and 1994, 985, Note to HR 11 December 1992, NJ 1996, 229. 27. Wet op de loonvorming. 28. L.M. van der Sluis, Toelating tot CAO-onderhandelingen, Arbeidsrecht 1995/3, p. 33; J. van der Hel, Recht op CAO-overleg, Arbeidsrecht 1999/10, p. 19-22; C.E.M. Schutte, Overzicht van het CAO-recht, 2th edition 1998, § 2.1.2; H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition, 203-204
COLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT negotate collective agreements in its constitution. 29 A union does not have to be elected by the personnel it claims to represent, nor does it have to meet any test as to its representativeness. This might lead to tension, especally when employers choose to negotiate with minor(or even yellow 30)unions and thereby exclude the big ational unions assocated with either the FNv or the CNv. Or conversely,to negotiate with a FNV-or CNV-union having little support in the company involved to the detriment of a more specialist and more representative union. This tactic of picking and choosing ones contractual partner is particularly rewarding in the dutch stem,since collective agreements affect all employees of the employers who are bound by the agreement and not only those employees who are mem bers of a union which is a party to the agreement 3 1 Such an agreement can even eventua lly bind the whole industry, by the process of declaring it to be generally binding(see below). A striking example of this effect occurred in January 2002, when the employers in child care entered into a collective agreement with one union aga inst the objections of two other unions participating in the negotiations. The union which closed the agreement had 85()members under the 35 000 employees in the sector; the two opposing unions 11 500 members. Still, the unions thought the Minister of Socal Affairs might decare the collective agreement to be binding on the sector as a whole. To counter this effect, both legal scholars and policy makers have at times suggested to Introduce a test of representativeness into the Dutch system. So far, this has been rejected. However, since the early 1980s courts have in some instances obliged employers to accept representativeorganisations as parties to ongoing negotations This obligation is based on good faith and the duties of a good employer and seems to be restricted to cases where the freedom of negotations is being abused. The duty of the employers is limited to negotiating in good faith, the employers cannot be bliged to enter into an agreement 2.3 Statutory regulation of collective agreements and similarinstruments Dutch aw does not contan a special labour code. Labour law topics are dealt with in a myrad of legal rules. The regulation of individual labour contracts, for example, foms part of the Civil Code, whereas safety at work and working timeare dealt with in specal statutes. Even the statutory regulation of collective agreements is to be found in several b ws. The collective agreement itself is regulated in the Collective Labour Agreements Act of 1927(Wet CAO). This law contains the necessary requirements as to the parties to and the contents of collective agreements, the legal effects thereof and the legal remedies in case of breach. Entry into force of collective agreements is regulated in Article 4 of the Wage Fomation Act (Wet op de loonvorming) which conta ins a duty to infom the Minister of Social Affairs of any ollective agreements entered into. No collective agreement can enter into force without such notification. Since the law makes entry into force dependent upon the Minister sendinga receipt of notif ication to the parties, Dutch law is most probably in Wet CAO Art. I section I and Art. 2 Yellow unions are unions establshed at the behest of or by the employer and, as such, doubts may be raised as to their independence. Trouw(anational newspaper), Friday ll January 2002, p 5
COLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT 7 negotiate collective agreements in its constitution.29 A union does not have to be elected by the personnel it claims to represent, nor does it have to meet any test as to its representativeness. This might lead to tension, especially when employers choose to negotiate with minor (or even yellow30 ) unions and thereby exclude the big national unions associated with either the FNV or the CNV. Or conversely, to negotiate with a FNV- or CNV-union having little support in the company involved to the detriment of a more specialist and more representative union. This tactic of picking and choosing one’s contractual partner is particularly rewarding in the Dutch system, since collective agreements affect all employees of the employers who are bound by the agreement and not only those employees who are members of a union which is a party to the agreement.31 Such an agreement can even eventually bind the whole industry, by the process of declaring it to be generally binding (see below). A striking example of this effect occurred in January 2002, when the employers in child care entered into a collective agreement with one union against the objections of two other unions participating in the negotiations. The union which closed the agreement had 85 (!) members under the 35 000 employees in the sector; the two opposing unions 11 500 members. Still, the unions thought the Minister of Social Affairs might declare the collective agreement to be binding on the sector as a whole. To counter this effect, both legal scholars and policy makers have at times suggested to introduce a test of representativeness into the Dutch system. So far, this has been rejected. However, since the early 1980s courts have in some instances obliged employers to accept ‘representative’ organisations as parties to ongoing negotiations. This obligation is based on good faith and the duties of a good employer and seems to be restricted to cases where the freedom of negotiations is being abused. The duty of the employers is limited to negotiating in good faith; the employers cannot be obliged to enter into an agreement. 2.3 Statutory regulation of collective agreements and similar instruments Dutch law does not contain a special labour code. Labour law topics are dealt with in a myriad of legal rules. The regulation of individual labour contracts, for example, forms part of the Civil Code, whereas safety at work and working time are dealt with in special statutes. Even the statutory regulation of collective agreements is to be found in several laws. The collective agreement itself is regulated in the Collective Labour Agreements Act of 1927 (Wet CAO). This law contains the necessary requirements as to the parties to and the contents of collective agreements, the legal effects thereof and the legal remedies in case of breach. Entry into force of collective agreements is regulated in Article 4 of the Wage Formation Act (Wet op de loonvorming) which contains a duty to inform the Minister of Social Affairs of any collective agreements entered into. No collective agreement can enter into force without such notification. Since the law makes entry into force dependent upon the Minister sending a receipt of notification to the parties, Dutch law is most probably in 29. Wet CAO Art. 1 section 1 and Art. 2. 30. Yellow unions are unions established at the behest of or by the employer and, as such, doubts may be raised as to their independence. 31. Trouw (a national newspaper), Friday 11 January 2002, p. 5
VAN HOEK violation of intemational law on this point. Another law which is relevant to the system of collective negotiations is the Collective Labour Agreements(declaration of Generally Binding and Non-binding Status) Act of 1936(Wet AVV). This lay contains the procedure to make collective agreements generally binding and regulates the legal consequences thereof If it is impossible to reach an a greement between the socal partners on abour conditions in a specific sector of the economy, the Minister of Socal Affairs may upon the request of the socal partners, detemine the relevant standards. These regulations have a content and binding force which is similar to collective nts or generally bin ollowed 3In practice, this power is rarely used by the Minister. Most sectors of the economy have a work ing system of collective negotiations. Even if it occasionally proves difficult to reach an agreement, the government will not intervene. But if for some reason a sensible system of negotations cannot take place, then the specal procedure of the Wage Formation Act can be used. The most recent example thereof consists of regulations perta ining to the abour conditions of seafarers(regeling The concept of the collective agreement in the Collective Labour Agreements Act 1927 n Dutch law, one has to distinguish between a formal and a material concept of collective agreement. The materal concept of collective agreement is very wide The Collective Labour Agreements Act stipulates that a collective agreement is an agreement between one or more employers or one or more organisations of employers 34 and one or more organisations of employees, which contains predom inantly or exclusively stipulations on the abour cond itions to be respected in indiv idual labour contracts. This description of the collective a greement, stemming from the time when the act on collective agreements was enacted in 1927. has proved over the years not to pose a real lim itation on the powers of the social partners The concept of collective agreement'covers both sector agreements and agreements etween the unions and a single employer. It applies to collective agreements ontaining provisions on a myrad of subjects as well as to specific agreements ona single subject only. Basically, all the elements of labour law that lend themselves to agreement m the sense of the Act. 36 employers, can be the subject of a collective negotiation between the unions and Wet op de loonvorming Artt 5 and 6 respectively Regeling bijdrage Stichting Zeemanswelzijn Nederland 1998/1999, Al nr. 8989, Bijv. Stcrt. 16-041998.nr.72 Associations having full legal capacity( verenigingen metvolledigerechtsbevoegdheid) Collective Labour Agreements Act 1927(Wet CAO) Art. 1: Onder collectieve arberdsovereenkomst wordt verstaan de overeenkomst aangegaan door een of meer wergevers of een of meer verenigingen met volledige rechtsbevoegdhed van werkgevers en een of meer rerenigngen met volledigerechtsbevoegdheid van werknemers, waarbij voornamelyk of uitsluitend orden geregeld arbeidsvoorwaarden, bij arbeidsovereenkomsten in acht te nemen. However, collective agreements pertaining to pension plans are covered by separate Acts, the
VAN HOEK 8 violation of international law on this point. Another law which is relevant to the system of collective negotiations is the Collective Labour Agreements (Declaration of Generally Binding and Non-binding Status) Act of 1936 (Wet AVV). This law contains the procedure to make collective agreements generally binding and regulates the legal consequences thereof. If it is impossible to reach an agreement between the social partners on labour conditions in a specific sector of the economy, the Minister of Social Affairs may, upon the request of the social partners, determine the relevant standards. These regulations have a content and binding force which is similar to collective agreements or generally binding collective agreements, depending on the procedure followed.32 In practice, this power is rarely used by the Minister. Most sectors of the economy have a working system of collective negotiations. Even if it occasionally proves difficult to reach an agreement, the government will not intervene. But if for some reason a sensible system of negotiations cannot take place, then the special procedure of the Wage Formation Act can be used. The most recent example thereof consists of regulations pertaining to the labour conditions of seafarers (regeling arbeidsvoorwaarden zeevaart).33 4 The concept of the collective agreement in the Collective Labour Agreements Act 1927 In Dutch law, one has to distinguish between a formal and a material concept of ‘collective agreement’. The material concept of ‘collective agreement’ is very wide. The Collective Labour Agreements Act stipulates that a collective agreement is an agreement between one or more employers or one or more organisations of employers 34 and one or more organisations of employees, which contains predominantly or exclusively stipulations on the labour conditions to be respected in individual labour contracts.35 This description of the collective agreement, stemming from the time when the Act on collective agreements was enacted in 1927, has proved over the years not to pose a real limitation on the powers of the social partners. The concept of ‘collective agreement’ covers both sector agreements and agreements between the unions and a single employer. It applies to collective agreements containing provisions on a myriad of subjects as well as to specific agreements on a single subject only. Basically, all the elements of labour law that lend themselves to negotiation between the unions and employers, can be the subject of a collective agreement in the sense of the Act.36 32. Wet op de loonvorming Artt. 5 and 6 respectively. 33. Regeling bijdrage Stichting Zeemanswelzijn Nederland 1998/1999, AI nr. 8989, Bijv.Stcrt. 16-04-1998, nr. 72. 34. Associations having full legal capacity (verenigingen met volledige rechtsbevoegdheid). 35. Collective Labour Agreements Act 1927 (Wet CAO) Art. 1: ‘Onder collectieve arbeidsovereenkomst wordt verstaan de overeenkomst, aangegaan door een of meer wergevers of een of meer verenigingen met volledige rechtsbevoegdheid van werkgevers en een of meer verenigingen met volledige rechtsbevoegdheid van werknemers, waarbij voornamelijk of uitsluitend worden geregeld arbeidsvoorwaarden, bij arbeidsovereenkomsten in acht te nemen.’ 36. However, collective agreements pertaining to pension plans are covered by separate Acts, the