- Observatory: EurWORK
- Industrial action,
- Labour and social regulation,
- Industrial relations,
- Published on: 09 February 2010
Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.
In the Netherlands individual labour disputes in the private sector are generally regulated by private law and dealt with by a single judge of a District Court competent to hear individual labour disputes. Disputes about dismissals are regulated by the Social Insurance Administration Office. Individual labour disputes in the public sector are regulated by administrative law and dealt with by an administrative court. Preceding and during legal proceedings parties may opt for mediation either upon their own initiative or upon referral by a judge or any other person or institution. There is no statutory, governmental organisation offering mediation services in individual labour disputes. The mediation practice is thus privately established. However, the Dutch government is in favour of mediation. This can be illustrated by various mediation experiments, which were initiated and subsidised by the Dutch government and the introduction of mediation sections within the district and appeal courts on 1 April 2007.
(A) Recent trends (2005-2009)
1. What traditional or established methods are used in your country to seek to resolve individual disputes (e.g. labour courts/tribunals)? What ADR methods are now used as alternative or additional means to resolve individual conflicts?
Please give a brief description of the legal mechanisms before reporting on the use of the various forms of ADR used.
- Dutch labour law for the private sector can be characterised as a mixture of private and public (administrative) law. This can be illustrated by the nature of the law on dismissals in individual labour disputes, that is governed by elements derived from civil (private) law as laid down in the Civil Code and elements derived from public law such as the Extraordinary Degree on Labour Relations (Buitengewoon Besluit Arbeidsverhoudingen, BBA)) of 1945. Because of this mixed nature, Dutch labour law is regarded as complicated, which is also reflected by the introduction by the BBB of ex ante dismissal authorisation. Most employment contracts cannot be terminated one-sidedly without a prior dismissal permit from the Social Insurance Administration Office( UWV Werkbedrijf ). In the course of the 1980s, when employers came to regard one-sided termination through the UWV Werkbedrijf as increasingly burdensome, another avenue for termination of employment contracts developed, that is by application to the court to dissolve (rescind) the employment contract for serious reasons (gewichtige redenen). Such reasons are mostly constituted by ‘a fundamental change of circumstances’ caused by serious financial problems for the employer (necessity of reorganisation), or problems in the employer/employee relationship (breach of trust).
- Other individual labour disputes are basically dealt with by the Kantonrechter. The Kantonrechter is a first instance, a single judge competent to hear individual labour disputes next to other civil law disputes. The Kantonrechter and his court form a sector of a District Court ( Rechtbank). In appeal, individual labour disputes are heard by the Court of Appeal( Gerechtshof). A decision of a Court of Appeal can be contested by appealing in cassation to the Supreme Court of the Netherlands ( Hoge Raad).
- In the public sector, individual labour disputes are qualified as administrative disputes and consequently are dealt with by a single judge of the administrative law sector of a Rechtbank. In many cases the hearing by the administrative law sector is preceded by an objection procedure under the auspices of the administrative authorities such as an employer in the public sector. In cases involving civil servants and social security issues, appeal is a matter for a special appeals tribunal, the Central Appeals Tribunal ( Centrale Raad van Beroep).
- In conclusion, the distinction ‘private-public sector employee’ is fundamental, since it determines which court, legal procedure and substantive law are to be followed in case of an individual labour dispute. As a consequence there is no unified, specialised labour court or tribunal exclusively dealing with individual labour disputes.
Please explain if ADR is voluntary or compulsory. Please distinguish between conciliation, mediation, arbitration and any other types of ADR.
There is not, as yet, a statutory or privately established organisation catering for mediation services for individual as well as collective labour disputes in all sectors of the economy. Generally individual labour disputes may be settled by mediation in two ways: upon the parties’s own initiative or upon referral to mediation by the judge. Mediation in individual labour disputes is voluntary, including the referral to mediation by the judge and is practised by private persons. Other ADR methods are hardly practised. Occasionally, bindend advies (binding advice) is opted for. In addition, negotiation by the parties under the guidance of the judge (comparitie) is a common phenomenon.
2. Over the last five years, i.e. since the beginning of 2005, have there been any changes in your country in the volume of cases dealt with by ADR and in the proportion of individual disputes dealt with by ADR?
(i.e. in relation to the total number of individual disputes lodged with tribunals/labour courts)
Please distinguish between the different types of ADR and, wherever possible, please provide statistical evidence for each year.
There are no specific statistics available on the use of mediation for the resolution of individual labour disputes. However, since the introduction of the projects Court encouraged mediation (Mediation naast rechtspraak) and Mediation within the legal aid scheme (Mediation in de gefinancierde rechtsbijstand) in 2000 and 2001 data have been collated and published for both projects in the so-called Mediation Monitor. The Mediation Monitor 2008 indicates that the total number of referrals to mediation by the judge has increased from 830 in 2005 to 2133 in 2006 to 3364 in 2007. Of these referrals, 92% resulted in mediation and of it 73% was actively completed through mediation. Compared to the number of cases handled by the courts, the number of cases finally settled by mediation is still small (for example, in 2007 approximately 127.000 family disputes were dealt with by the district courts, while 1750 disputes were resolved by court annexed mediation). Distinguished by the specific law area, the number of administrative individual labour disputes referred to and completed by mediation is much higher (69%) compared to the number of civil individual labour disputes (5%).
In addition, there is even less known concerning the volume of ‘pre-trial mediation’. However, statistics of the Nederlands Mediation Institute (Nederlands Mediatie Instituut) indicate that 34,72% (including pre-trial mediation and court annexed mediation) of its registered mediators are involved in labour mediation. Although the outcomes of these statistical surveys are not fully representative – they are merely based on mediations registered with the NMI – they certainly provide an impression of the actual Dutch mediation practice in individual labour disputes.
3. What are the main categories of individual workplace disputes dealt with by each type of ADR?
(e.g. disciplinary issues, employee grievances, harassment, bullying, discrimination on grounds of gender, ethnicity, religious belief, sexual orientation, pay, employment rights etc)
There is no clear picture of which labour issues are particularly and preferably dealt with by mediation. This can be partly explained since there is no well established, institutionalised organisation dealing with the resolution of individual (and collective) labour disputes. As a result there is also no registration of the subject matter of individual labour disputes.
However, NMI data suggest that NMI registered mediators deal with disputes such as resulting from unfair dismissal, ill manners at work, terms of employment, absenteeism (due to illness).
Are some issues more amendable to ADR than others? For example, it has been suggested that mediation may be best suited for disputes concerned with bullying, harassment and worker-worker problems.
As yet there are no Dutch research studies confirming that particular issues are better dealt with by mediation. Basically all disputes, either over interests or rights, may be resolved through mediation as long as there is an open climate. Mediation may, however, be less appropriate when it concerns disputes over strict rules, which do not leave much room for diverging interpretations. Unlike strict rules, rules which are tantamount to vague norms such as reasonable or fairness do better lend themselves for resolution through mediation.
4. Does the use of ADR vary by industry sector and by occupational characteristics?
(e.g. public, private and voluntary sectors; professional, white collar, manual workers)
No sources are available dealing with these issues. Occasionally, specific programmes are initiated by individual companies/organisations to promote the practice of (internal) mediation and thereby proper conflict management. An example of such an initiative is the Rabo mediation scheme. Also some ministries are considering the introduction of a conflict management system, partly because the government is promoting better conflict management by its citizens.
5. What impact is the recession having on the number or volume of individual disputes and on the use of ADR?
The Annual Report 2008 of the judiciary reports an increase in the number of cases. Particularly, the workload of the Kantonrechter is steadily increasing. In the Annual Report 2008 it is stated that it is not clear whether this is due to the economic recession. Nevertheless, the Council for the Judiciary has requested for additional budget to deal with the increase of cases, including individual labour cases, by the Kantonrechter. There is no conclusive evidence indicating that the number of labour mediations is increasing due to the recession. However, there is anecdotal information indicating that the number of individual labour cases is swiftly increasing (according to judges of the courts of Amsterdam, Utrecht and Rotterdam).
(B) Actors and processes
6. How does the aggrieved worker get access to ADR?
Is it via a trade union; on applying to a tribunal or labour court; through the employer; or some other way?
The aggrieved worker may be informed of the possibility of mediation through various avenues. The most common avenues through which he may be alerted to mediation are his employer, the trade union, his lawyer, the medical officer of the company, the Legal Counter (Juridisch Loket) and the court.
Is the worker required to have sought to resolve the matter by using the internal company grievance and disputes procedures first?
As yet, such grievance procedures and disputes procedures are not in place in most companies/organisations. If they are occasionally in place, they are not compulsory. This would contravene Article 6 of the ECHR and would not be in line with the voluntary nature of mediation.
Is ADR free of cost for the employee applicant? Does the employer have to pay for ADR services?
There is no statutory provision regulating the division of costs of the mediation amongst the parties. Basically, this is up to the parties to decide. In practice, however, it is frequently the employer who will pay the costs of mediation, including the costs of mediation for the employee.
In some cases ‘mediation legal aid’ is available. In 2005 150 incentive contributions were paid for mediations referred through the courts, in 2007 this amount increased to 1,050. Between 2005 and 2007 a total of 3,074 incentive contributions were paid. The number of mediation legal aid permits increased from 356 in 2005 to 4,071 in 2007. Since 2005, the Counsels of Legal Aid issued a total of 6,900 mediation legal aid permits. There is no information on the number of legal permits particularly issued for the resolution of individual labour disputes. The incentive contributions and the mediation legal aid permit limited the costs of mediation for most parties. About 42% of the court referred parties did not have any extra costs. Parties receiving a mediation legal aid permit maximally paid € 92.
7. Where do independent experts in conciliation, mediation and arbitration come from?
Based on NMI data mediation is chiefly practised by psychologists, lawyers, accountants, and other professionals belonging to the service industry.
Who appoints them and are they required to be trained?
It is the parties who appoint the mediator. There are no statutory provisions pertaining to the appointment of mediators.
Since the profession of mediator has no statutory basis, there are no unified requirements for becoming a mediator. However, the NMI provides standards for mediators (registered with the NMI), disputants and judges. To be registered and/or certified as an NMI mediator one has to receive an NMI accredited training programme. As yet, there are 21 NMI accredited organisations offering mediation training programmes.
Who pays them? This could be the government/state, a specialist government agency, the employer or employers’ association, a trade union or other bodies.
The payment of mediators is not regulated by law. Therefore, it is again for the parties to decide who pays the mediator. In practice, however, it is often the employer who pays the costs of the mediator/mediation.
8. Is there any formal link between ADR and a labour court or a tribunal?
Does the worker have to have applied to the labour court/tribunal first before ADR can be used?
There is no such obligation. In Dutch law, there are no specific statutory provisions pertaining to mediation. However, once an employee/employer has decided to institute legal proceedings, the judge may refer the parties to mediation. This referral by the judge is not mandatory.
If ADR is used and is successful, must the claim be withdrawn from the tribunal?
There is no obligation upon the claiming party to withdraw. If a dispute is successfully resolved by mediation, the details of it will then be laid down in a so-called vaststellingsovereenkomst. This is a special contract in which the details of the settlement are laid down and the parties agree to refrain from further litigation.
Can the independent expert providing ADR subsequently be required to give evidence in the labour court/tribunal hearing?
As yet, the mediator does not have professional privilege. According to the NMI rules, confidentiality and secrecy are to be observed during and after the mediaton, by all parties concerned. But, if a dispute still ends in court, there isnothing to prevent a judge from hearing a party or a mediator about what happened during the mediation process. For the time being, the Dutch Ministry of Justice is not in favour of a statutory privilege.
9. Is the worker using ADR usually accompanied by someone at the hearing?
If so, by who (e.g. a fellow worker, a trade union official, a lawyer etc)?
This cannot be answered by a simple yes or no. It fully depends upon the preference of the worker/employee. An employee may be accompanied by a trade union official or a lawyer or any other person who can properly assist him or her in the mediation process. The role of lawyers in mediation has changed from keeping away to a more co-operative attitude. As far as trade union officials is concerned, they also have become more co-operative. At first, they were somewhat reserved towards mediation. Just as lawyers, they considered mediation as a threat to their core business, assisting their members in legal proceedings.
(C) Views of governments and social partners
10. What are the attitudes of the government and social partners (employers/employers’ associations and trade unions) to the use of ADR techniques?
Do they encourage or discourage the use of ADR, or remain neutral or indifferent?
Since 1995 the government has shown a sincere interest in the possibilities of mediation. Particularly on the instigation of the Ministry of Justice mediation experiments in- and outside the courts were initiated; however, no projects were initiated specifically focussing on mediation in individual labour disputes. A special national mediation office was established to promote court-annexed mediation. Since 1 April 2007 all district courts and appeal courts have special mediation sections. These special mediation sections inter alia screen cases on the suitability for referral to mediation.
The social partners are rather neutral to the use of mediation. As mentioned earlier, some companies/organisations do occasionally have an interest in mediation. There is, however, not a shared, collective endeavour to establish for example a special institution for the resolution of individual as well as collective labour disputes.
Have these attitudes changed in the last five years and if so why?
No, these attitudes have not changed in the last five years.
Have any agreements been reached by the social partners on the use of ADR in the workplace.
Such arrangements have not been agreed upon by the social partners.
(D) Commentary by national centre
11. Please provide a short commentary on the significance of ADR in your country and debates about its impact (or potential impact) on employment relations.
The significance of mediation in individual labour disputes seems (still) to be increasing, although this cannot be fully supported by data. For employers, until recently, the tightened employment market provided an incentive to negotiate with employees. For trade unions, financial limitations provide an impetus to consider mediation as an alternative for union supported court proceedings. In addition, the rising costs of the national social insurance schemes stimulate employers and employees to attempt solving underlying disputes first, before resorting to the respective insuring scheme. At this moment, however, it is hard to predict what consequences – negative or positive - the economic recession will have on the practice of mediation in individual labour disputes. Some experts expect that the recession will increasingly necessitate employees to go to court since there is little room for negotiation (inter alia through mediation), while others believe that exactly the economic recession may boost mediation.
Annie de Roo, Faculty of Law, Erasmus University Rotterdam