New legislation promotes participation of ethnic minorities

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The Dutch Government is seeking to promote the participation of people from ethnic minorities on the labour market by means of a new law, adopted in April 1998. Previous legislation was generally considered to be inadequate. Many provisions of the new law have been borrowed from a 1996 agreement between the central employers' and employees' organisations.

On 29 April 1998, the Law on the Promotion of Labour Participation of Ethnic Minorities (Wet stimulering arbeidsdeelname minderheden) was published in the Netherlands' official Bulletin of Acts, Orders and Decrees. The Dutch acronym for this new law is SAMEN, meaning, appropriately enough, "together". SAMEN aims to improve on the earlier Law on the Promotion of Proportional Labour Participation of Ethnic Minorities (Wet bevordering evenredige arbeidsdeelname allochtonen, WBEAA), which came into force on 1 July 1994. SAMEN will take effect retrospectively as from 1 January 1998.

The aim of the WBEAA was to remove obstacles impeding people from ethnic minorities from entering the labour market and to promote their proportional representation in private companies. Two years after the introduction of the WBEAA (October 1996) a survey revealed that most employers did not comply. The main reason for this non-compliance was that employers felt that the law was misguided: they felt that unemployment among ethnic minorities should be considered as a supply-side problem.

About the same time that these findings were published, the confederations of employers and trade unions represented on the Labour Foundation (Stichting van de Arbeid, STAR), reached a new agreement on the position of ethnic minorities on the labour market. The Labour Foundation found that the results of government policy and legislation were insufficient and proposed a new policy that would focus on the sector level and, preferably, individual companies. The Labour Foundation also recommended that the WBEAA be amended. To a large extent, the SAMEN law has followed these recommendations.

The new law

The aim of the new law is the same as the WBEAA: that employers should strive for proportional representation of people from ethnic minorities within their companies. No time limit has been set for reaching this goal. Instead, every company must formulate a target for the forthcoming year. If the company is covered by a collective agreement which sets such targets, then these should be used. The employer must also publish the results of this policy in the annual report. The report has to be registered at the District Employment Services Authority (Regionaal Bestuur voor de Arbeidsvoorziening, RBA). Before publishing the annual report, the employer must consult the works council and include its opinion. The Cabinet expects that this information will be used by organisations representing ethnic minorities and the social partners at sectoral level.

Enforcement

While the 1994 law was enforceable in criminal law, the new law is enforceable in civil law. In this way, the Cabinet and Parliament hope that organisations promoting the interests of ethnic minorities, the social partners at sectoral level and similar bodies will play an active role in enforcing it. In addition, works councils may take legal action on the basis of the Works Councils Act (Wet op de ondernemingsraden, WOR). The system of civil sanctions is supplemented through supervision by the Labour Inspectorate. If an employer refuses to comply with the law, the Labour Inspectorate will notify the employer, the works council and the relevant social partners at sectoral level. Moreover, this notification will be filed at the RBA, allowing this information to be used by the many organisations mentioned above.

Works councils

Under the new law, works councils will play an even more important role with regard to ethnic minorities than before. According to paragraph 28 of the Works Councils Act, the works council is already responsible for fighting discrimination and promoting the employment of ethnic minorities in the company.

However, research has shown that most works councils have not placed these matters high on the agenda. A survey of 175 works councils, conducted in 1992, revealed that only between 8% and 9% had paid attention to the employment of ethnic minorities over the past two years. Also, institutions which organise training courses for works councils reported a lack of interest among works councils in ethnic minority-related subjects. Works councils appear to focus on subjects such as working conditions, terms of employment and health and safety, while social issues - discrimination, "women's issues" and the environment - have low priority. When works councils do show an interest in these subjects, they are still unable to take action or develop a long-term policy. A 1995 study has shown that this is usually caused by time constraints, a lack of expertise and an ad hoc approach.

Commentary

Solving the disadvantaged position of ethnic minorities on the labour market is not an easy task. The 1994 WBEAA met resistance from employers in its implementation. This stemmed from a general feeling among employers that such a law was doomed to fail. Moreover, recommendations by the Labour Foundation on this issue often failed to reach sectoral level, or that of individual companies, as a 1996 study shows ("De doorwerking van aanbevelingen van de Stichting van de Arbeid" ["The resounding effect of the recommendations of the Labour Foundation"], ACJM Wilthagen and AH van Heertum-Lemmen, Sinzheimer Cahiers 12, The Hague (1996)). In this sense, the new law, with its emphasis on individual companies, might be an improvement.

Whether the new law will be more successful than its predecessor remains unclear. It remains to be seen whether works councils can fulfil the role that the new law has set for them. On the other hand, organisations representing ethnic minorities might take advantage of their new rights. At present, minorities are at least enjoying the benefits of a tight labour market. In the long run, this could be more important than the law itself. (Robbert van het Kaar, HSI)

References

"Belasting en belastbaarheid van ondernemingsraden" ["Taxation and taxability of works councils"], AMW Iwema and F Verbakel, The Hague, VUGA (1994).

"Aan de grenzen van het haalbare" ["At the edges of feasibility"], APM van Beckhoven and JWM. Mevissen, The Hague, VUGA (1996).