Recommendations on workplace-level union structure
In the Netherlands, trade unions were originally poorly represented at workplace level, where works councils have traditionally been viewed as the appropriate forum for representing employees' interests. Although works councils and trade unions are cooperating to an increasing degree, this has not progressed without tension. For a long time, workplace-level union structure has been (and still is) a rather touchy issue. To address this, in April 1997 the bipartite Labour Foundation published several new recommendations concerning union structure at workplace level.
Trade unions play an important role in Dutch industrial relations, and their activities touch on all levels of these relations. However, at workplace level, trade unions have historically been poorly represented. This can be partially explained by a strategic choice the unions made in the past to maintain a centralist approach. Poor representation at workplace level can also be explained by the lack of a legal basis for a union structure at this level. Works council s, on the other hand, have a legal basis in the 1971 Works Councils Act. Furthermore, for a long time, workplace-level union structure has been (and still is) a rather touchy subject.
Since the beginning of the 1970s, the trade union movement has striven for increased recognition and improved accessibility at a workplace level. To this end, active trade union members were appointed as "workplace union representatives". However, to date, trade unions have not succeeded in developing an independent and viable structure at workplace level to function alongside the works councils. In fact, for companies with at least 35 employees, the works council has become the official forum to represent employees' interests at workplace level. Workplace-level trade union representatives and works councils cooperate to an increasing degree in daily practice. The unions can provide useful support for works council activities, and works councils can offer trade union members an appropriate forum to represent their interests at the workplace.
A division of tasks between unions and works councils can be perceived in issues relating to terms of employment. The area of primary terms of employment (especially wages and working hours) is reserved for the unions. Works councils have been accorded rights in the area of secondary terms of employment (such as supplementary pensions schemes and additional benefits at work). As stipulated in Article 27 of the Works Councils Act, works councils have rights of consent regarding negotiations in the area of industrial relations. However, these rights do not apply if the subject concerned is already covered by a collective labour agreement. This boils down to a priority rule: the unions have precedence, but if there is no union, then the task falls to the works council (for further details, see NL9703106F).
In 1990, a bill dating back to 1981 regarding workplace-level union structure was revoked under the terms of the current deregulation policy. In that same year, and after several abortive attempts, the Labour Foundation (Stichting van de Arbeid or STAR, a bipartite consultative body consisting of employers' and trade union organisations) published a memorandum which included recommendations on workplace-level union structure ("Overwegingen en aanbevelingen inzake arbeidsverhoudingen en vakbondswerk in de onderneming" ("Considerations and recommendations concerning industrial relations and trade union structure at workplace level"), STAR, publication no. 1/90, 3 January 1990). This report stated that trade unions should be free to create a trade union presence in companies with unionised employees. However, the definition of workplace-level union structure was limited. It included the goal of improving communications with, and disseminating information to, employees at the workplace. It was explicitly stated, however, that this should not result in the formation of a formal consultative structure at a workplace level which could conflict with the functioning of other consultative structures, whether or not these were established on a legal basis, such as works councils, and company committees and work groups. The responsibilities of the trade union members represented in such committees or works councils should also not be impinged upon. Yet trade unions were allowed to support their members in their functions on committees and works councils.
New STAR recommendation
Now, seven years later, the time seems ripe to take a broader view of workplace-level union structure, and STAR has issued a new recommendation ("Overwegingen en aanbevelingen inzake arbeidsverhoudingen in de onderneming" ("Considerations and recommendations concerning industrial relations at workplace level"), STAR, publication no. 3/97, 22 April 1997). During the past few years, industrial relations at workplace level have been characterised by a process of decentralisation and differentiation. Decentralisation may be understood as the aim of settling terms and conditions of employment at a level as close to the individual employment relationship as possible. Differentiation may be understood as the aim of matching the terms and conditions of employment with the respective needs of the contracting parties. Both developments were advocated by the social partners in a 1993 STAR publication ("Een Nieuwe Koers: agenda voor het cao-overleg 1994 in het perspectief van de middellange termijn" ("A new direction, the agenda for medium-term collective bargaining for 1994") , STAR, publication no. 9/93, 16 December 1993). In daily practice, this has resulted in what has been termed "cafeteria agreements" or "'à la carte agreements", which offer employees the option to trade off a limited number of terms and conditions, thus giving them more latitude in choosing their own terms and conditions. Recently, a "layered" agreement was concluded in the printing industry which allowed company agreements to fill in the details.
With regard to the trend towards decentralisation, in its recent recommendation, the Labour Foundation states that employees, their representatives and their advisors should be provided with the facilities to participate equally in the further elaboration of broader terms and conditions of employment. Again, it is assumed that the intention is not to create a new, third consultative structure to function alongside collective bargaining and works councils. According to the Labour Foundation, workplace union representatives should be able to fill positions in various ways according to the decentralised settlement of terms and conditions of employment:
- as a member of the delegation of negotiators (headed by a paid trade union executive officer) within the context of regular collective bargaining;
- the workplace union representative may participate in negotiations with the employer in working out the details of a collective agreement in company agreements;
- as a member of the works council, a workplace union representative can play a role in the completion of collective agreements at workplace level; and
- a workplace union representative can advise individual employees in situations where central agreements leave room for trading off a number of terms and conditions of employment against each other.
The Labour Foundation recommends that additional consultation take place between the employers' organisations and those trade unions involved in the settlement of terms and conditions of employment, regarding the facilities to be given to the trade union representatives at the workplace. The nature and scope of the facilities should correspond to those of the individual company. In 1990, the Labour Foundation published a number of specific recommendations which it still considers to be relevant today. These recommendations concern opportunities for the collection and dissemination of information, leave of absence, consultation with members and the use of new means of communication.
A study conducted at the end of 1996 by the Labour Inspectorate has shown that most collective agreements (74% of those investigated) included arrangements for workplace-level trade union structure ("Vakbondswerk in de onderneming; een onderzoek naar cao-afspraken" ("Workplace-level union structure; an investigation into collective agreements"), Arbeidsinspectie, September 1996). Of the collective agreements investigated, 60% included arrangements for providing facilities to trade union representatives. Arrangements for the legal protection of trade union representatives were included in 61% of the agreements. The union representatives are usually protected against both dismissal and discrimination by the employer. The rationale behind this is that an employer cannot dismiss or place an employee at a disadvantage in terms of the employee's options or opportunities within the organisation, merely because he or she works as a trade union representative. The Labour Foundation currently recommends that trade unions be informed beforehand about intentions to dismiss trade union representatives.
The new role for workplace-level trade union representatives in the decentralised settlement of terms and conditions of employment indirectly strengthens the position of the trade unions at workplace level. However, this indirect approach does not contribute to a clear definition of the respective responsibilities and authority of union representatives and works councils. In the past, tensions between trade unions and works councils could be traced back to the vague division of roles and different conceptualisations of their respective duties (see "Werknemersvertegenwoordiging op een tweesprong" ("Employee representation at a crossroad"). JC Looise, Samsom, Alphen aan den Rijn, 1989). However, it remains to be seen whether or not trade unions and works councils will be able to intensify their cooperation in the future or will once again revert to competition. (HH de Vries, HSI)