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
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
COLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT However, to qualify as a collective agreement, the contract has to fulfil certa mal requirements as well. The parties to the contract must be organizations with full legal capacity and the agreement has to be notified to the Ministry of Socal Affairs.37 If the agreement acks in these elements, it can still be legally binding, but It will not create the special effects given to collective a greements by the 1927 Act. If the parties did not intend to create a lega lly binding instrument at all, their agreement can at most be a gentlemen's agreement Disputes as to the characterization of agreements between the unions and employers have arisen ma nly in the field of the restructuring of companies. Agreements contaning so-calledsocial plans relating to collective dismissals or restructuring agreements are not always considered to be collective a greements in the sense of the 1927 Act. 38 The scope of application of collective agreements The two types of collective agreements which are prevalent in the Netherlands are the company-agreements and the agreements covering economic sectors. The two differ in both the parties on the side of the employer and the dominant factor detem ining their application. Com pany-agreements are concluded by companies or related groups of companies. The ma jor Dutch companies, both national and agreements for their Dutch enterprises and/or subsidiaries. The scope of application employer-side(a personal criterion). The companies may have separate agreements for higher and managing personnel and sometmes apply a separate set of la bourconditions to international personnel Sector agreements will contain the employment conditions for a sector of econom ic act They are typica lly concluded by organisations of emp rather than by individual employers. Sectora greements will in general apply throughout the Netherlands, local agreements are extremely rare. The delineation of the sector is based on agreement between the parties to the collective agreement. A sector might be defined widely to encompass a variety of economic activities rather be construed narrowly. Factors that influence the division into sectors of Pensioen-en spaarfondsenwet, 15 May 1962 Stb. 1962, 275 with subsequent changes and the Wet betreffende verplicht deehneming n een bedrijfspens ioenfonds, 17 March 1949 with subsequent 37. Collectiveagreements cannotas such become effective until notification has taken place: Wage Formation Act(Wet opdeloonvorming) Art 4. J. van der Hust, Het social plan, Deventer: Kluwer 1999 with extensive literature. The Supreme Court has mentioned on several occasions that social plans can amount to collective agreements. They can be based on collective agreements, be part of collective agreements or be collective agreements m themselves. See e.g. Hr 20 March 1998, JAR 1998/127, NJ 1998/815. In HR 26 mei 2000 JAR2000/151, the Supreme Courtdecided that the rules of interpretation provided by the Court for collective agreements are also valid forsocial plans. Ths means that prow sions n socal plans, as well as those in collective agreements, must be interpreted on the bass of ther objective meaning and not according to the meaning the parties could reasonbly have contributed to them( the latter being the rules regards contracts in general)
COLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT 9 However, to qualify as a collective agreement, the contract has to fulfil certain formal requirements as well. The parties to the contract must be organizations with full legal capacity and the agreement has to be notified to the Ministry of Social Affairs.37 If the agreement lacks in these elements, it can still be legally binding, but it will not create the special effects given to collective agreements by the 1927 Act. If the parties did not intend to create a legally binding instrument at all, their agreement can at most be a ‘gentlemen’s agreement’. Disputes as to the characterization of agreements between the unions and employers have arisen mainly in the field of the restructuring of companies. Agreements containing so-called ‘social plans’ relating to collective dismissals or restructuring agreements are not always considered to be collective agreements in the sense of the 1927 Act.38 5 The scope of application of collective agreements The two types of collective agreements which are prevalent in the Netherlands are the company-agreements and the agreements covering economic sectors. The two differ in both the parties on the side of the employer and the dominant factor determining their application. Company-agreements are concluded by companies or related groups of companies. The major Dutch companies, both national and multinational (Unilever, Philips, KLM, Ahold, KBB etc.) tend to negotiate special agreements for their Dutch enterprises and/or subsidiaries. The scope of application of these agreements is determined to a large extent by the parties on the employer-side (a personal criterion). The companies may have separate agreements for higher and managing personnel and sometimes apply a separate set of labourconditions to international personnel. Sector agreements will contain the employment conditions for a sector of economic activity. They are typically concluded by organisations of employers rather than by individual employers. Sectoragreements will in general apply throughout the Netherlands, local agreements are extremely rare. The delineation of the sector is based on agreement between the parties to the collective agreement. A sector might be defined widely to encompass a variety of economic activities or rather be construed narrowly. Factors that influence the division into sectors of Pensioen- en spaarfondsenwet, 15 May 1962 Stb. 1962, 275 with subsequent changes and the Wet betreffende verplichte deelneming in een bedrijfspensioenfonds, 17 March 1949 with subsequent changes. 37. Collective agreements cannot as such become effective until notification has taken place: Wage Formation Act (Wet op de loonvorming) Art. 4. 38. J. van der Hulst, Het sociaal plan, Deventer: Kluwer 1999 with extensive literature. The Supreme Court has mentioned on several occasions that social plans can amount to collective agreements. They can be based on collective agreements, be part of collective agreements or be collective agreements in themselves. See e.g. HR 20 March 1998, JAR 1998/127, NJ 1998/815. In HR 26 mei 2000 JAR 2000/151, the Supreme Court decided that the rules of interpretation provided by the Court for collective agreements are also valid for ‘social plans’. This means that provisions in social plans, as well as those in collective agreements, must be interpreted on the basis of their objective meaning and not according to the meaning the parties could reasonbly have contributed to them (the latter being the rule as regards contracts in general)
VAN HOEK economy are many. The organisational setup of the unions and employers is one This in turn tends to follow (to a certa in extent) divisions between sectors of the economy used in public law and socal security lw. The system as a whole is not static. Changes in the econom ic environment may cause collective agreements of related sectors to be merged, decentralization tendencies might cause large collective agreements to desintegrate. For further information, see below(trends). Inbetween ectors, unions may actually compete amongst themselves over the representation of a specific group of employees. These so-called border-disputes' on the exact delineation of neighbouring collective agreements will be solved either by bipar borderline commissions or by the negotiating parties. The Minister will not intervene Is such disputes There are close to 200 sector agreements+2 covering 4.4 million employees, or ven 5 million if count ing the effect of general applicability. 43 Close to 800 company agreements cover approx 0. 8 mill ion employees. 4On a total of approx. 7 million employed, this means that most employees are covered by some sort of collective The binding character of collective agreements and their effect on the individual employment contract In Dutch jurisprudence it is common to distinguish between the different ty pes of rovisions which can form a collective agreement. 45On the one hand a collective greement may conta in obligatory chuses which only bind the parties to the collective agreement. On the other hand, collective agreements are charactarized by the fact that they conta in so-called nomative chuses: clauses which regulate the relationship between the individual employee and the individual employer. Other The only relevant example being the bcal agreements for employment in the ports of Amsterdam and Rotterdam respective One such dispute concemed the sector for mobile cranes: di the workers employed im this sector fall under the agreement for the construction industry or rather the agreement for transport workers?: see the decree on general applicability DCA nr. 7732, Bijv. Start 9 March 1993, no 47, p. 7. Others concern(ed)the pos tion of drivers of security vans being used to transport money ( transport or security?) and workers n the IT-sector(specific agreement, office equipmenthutilities, assembly/metal dusty?: see A. Van Liempt A. van Uffelen, Arbeidsverhoudngen in ontwikkeling het ambivalente karakter van arbeidsvoorwaarden-regelngen n de ICr-sector, SMA 2000p.244-252 4 Such disputes do however affect thepossibility that the Mnster of Social Affairs will declare the agreementto be generally binding: Beleidsregels AVV, Stcrt 1998, nr 240, P. 14, $6.2. 1. 42. Counting only the general agreements which montan all basic labourconditions and excluding special agreements nearly retirement, tranngetc 43 Arbeidsinspectie, voorjaarsrapportage CAO-afspraken 2000, bijlage 4 H.L. Bakek, I P. Ascher-Vonk, W.J.PM. Fase, Schets van het Neder lands Arbeidsrecht, Deventer: Khwer, 1 6th edition 2000, p. 199; P.W. Kamphuisen, De collective en de individuele arbeidsovereenkomst, Leiden 1956, p. 17, F. Konng, De obligator, diagpnale en normative bepalingen van decal, SMA1988, p 175
VAN HOEK 10 economy are many. The organisational setup of the unions and employers is one. This in turn tends to follow (to a certain extent) divisions between sectors of the economy used in public law and social security law. The system as a whole is not static. Changes in the economic environment may cause collective agreements of related sectors to be merged, decentralization tendencies might cause large collective agreements to desintegrate. For further information, see below (trends). Inbetween sectors, unions may actually compete amongst themselves over the representation of a specific group of employees. These so-called ‘border-disputes’ on the exact delineation of neighbouring collective agreements will be solved either by bipartite borderline commissions or by the negotiating parties. The Minister will not intervene is such disputes. There are close to 200 sector agreements42 covering 4.4 million employees, or even 5 million if counting the effect of general applicability.43 Close to 800 company agreements cover approx. 0.8 million employees.44 On a total of approx. 7 million employed, this means that most employees are covered by some sort of collective agreement. 6 The binding character of collective agreements and their effect on the individual employment contract In Dutch jurisprudence it is common to distinguish between the different types of provisions which can form a collective agreement.45 On the one hand, a collective agreement may contain obligatory clauses which only bind the parties to the collective agreement. On the other hand, collective agreements are charactarized by the fact that they contain so-called normative clauses: clauses which regulate the relationship between the individual employee and the individual employer. Other 39. The only relevant example being the local agreements for employment in the ports of Amsterdam and Rotterdam respectively. 40. One such dispute concerned the sector for mobile cranes: did the workers employed in this sector fall under the agreement for the construction industry or rather the agreement for transport workers?: see the decree on general applicability DCA nr. 7732, Bijv.Stcrt. 9 March 1993, no. 47, p. 7. Others concern(ed) the position of drivers of security vans being used to transport money (transport or security?) and workers in the IT-sector (specific agreement, office equipment/utilities, assembly/metal industy?:, see A. Van Liempt & A. van Uffelen, Arbeidsverhoudingen in ontwikkeling, het ambivalente karakter van arbeidsvoorwaarden-regelingen in de ICT-sector, SMA 2000, p. 244-252). 41. Such disputes do however affect the possibility that the Minister of Social Affairs will declare the agreement to be generally binding: Beleidsregels AVV, Stcrt 1998, nr. 240, p. 14, § 6.2.1. 42. Counting only the general agreements which contain all basic labourconditions and excluding special agreements on early retirement, training etc. 43. Arbeidsinspectie, voorjaarsrapportage CAO-afspraken 2000, bijlage 4. 44. Idem. 45. H.L. Bakels, I.P. Ascher-Vonk, W.J.P.M. Fase, Schets van het Nederlands Arbeidsrecht, Deventer: Kluwer, 16th edition 2000, p. 199; P.W. Kamphuisen, De collectieve en de individuele arbeidsovereenkomst, Leiden 1956, p. 17; F. Koning, De obligatoire, diagonale en normatieve bepalingen van de cao, SMA 1988, p. 175