Arbeidsrecht en insolventie (MSR nr. 75) 2019/10.1:10.1 Research questions

Arbeidsrecht en insolventie (MSR nr. 75) 2019/10.1

10.1 Research questions

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

At the start of this doctoral research, the following research questions were formulated:

1.

In case of insolvency of an employer, what are the relevant rules in the Netherlands relating to, on the one hand, labour law and on the other hand insolvency law, and what is the rationale behind these rules?

2.

Considered in the light of the applicable rules of labour law and insolvency law respectively, to what extent does the insolvency of an employer lead to tension, conflicts or inconsistencies between the interests of the concerned parties, such as: individual employees, works councils, unions, (other) creditors, “Uitvoeringsinstituut Werknemersverzekeringen” (Employee Insurance Agency, hereinafter: "UWV"); tax authorities, the (shareholder(s) of the) insolvent person or entity itself, and the entire society?

3.

How can the aforementioned tensions, conflicts or inconsistencies be resolved in an efficient and acceptable way, in respect of all involved interests, by (amending) Dutch legislation?

4.

In addition to the national legislation mentioned in the previous research questions, are there relevant European rules on this matter and, if so, to what extent are the answers to research questions 2 and 3 influenced by these European rules?

An introductory, historically oriented, chapter (Chapter 2) starts with an outline of the relevant rules of labour law and insolvency law. This chapter demonstrates that these systems are – to put it mildly – only moderately attuned to each other. There is a fundamental field of tension between these legal areas and the way in which they are enforced in legal practice. This field of tension stems mainly from the employee-friendly protection concept in labour law on the one hand and the creditor’s approach in insolvency law on the other, which intends to liquidate the bankrupt employer in the most simple and inexpensive manner. This has been the case ever since the end of the nineteenth century.

As further observed, this field of tension has a strongly dynamic character, which can be influenced by legal factors (labour law versus insolvency law, each with their own principles and system), social factors (various political and ideological arguments) and the increasing importance of international relations (Dutch legislation versus European legislation). It is furthermore influenced by aspects such as globalisation, digitalisation, robotisation, platformisation (in Dutch: ‘platformisering’) and the desire for a flexible labour market (including the trend towards a new, broader employee concept), each influencing the process to a greater or lesser extent. The fact that there are so many and by nature very different factors influencing the process, also makes the process uncontrollable and not always easy to interpret. Moreover, developments are proceeding at an ever-increasing pace, as follows from the overview provided by this introductory chapter.

Subsequently, intensified research was carried out in six sub-areas, each sub-area leading to a set of answers to the research questions. This led to the conclusions and recommendations discussed in the next paragraphs. Successively, these are:

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Wage;

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Termination of the employment;

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Non-compete clauses;

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Restart or relaunch of the business;

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Abuse of insolvency proceedings;

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Employee participation and other collective aspects.

Regarding the recommendations that entail modification of legislation, preferably all rules and regulations are to be incorporated in the Bankruptcy Act, not the Civil Code. This seems more systematically correct: the regular labour law is provided in (title 10 of book 7 of) the Civil Code and I suggest that if derogations occur as a result of bankruptcy or moratorium (also known as "suspension of payments") this should be arranged in article 40 and if necessary in article 40a (new) et seq. of the Bankruptcy Act. Considering possible adaptation of participation rights, I plead for the sake of clarity and partly with regard to time limits and appeal procedures to regulate those in the law specifically designed for that: the Works Councils Act.

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