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 5COLLECTIVE 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