Einde inhoudsopgave
Corporate Social Responsibility (IVOR nr. 77) 2010/10.12.1
10.12.1 Applicable legal and soft law standards re the allegations
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS371868:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
The Netherlands has ratified 105 ILO Conventions. As regards industrial relations, the country is well known for its so-called 'polder model.' Although its name refers to the Netherlands' flat, rural landscape, in practice it refers to the traditional social dialogue and policy-making by consensus between the government, employers and trade unions. Dutch labour law is detailed but is found in scattered pieces of legislation. T. Claassens, The Netherlands, in: B.A. Hartstein, in Labour & Employment in 31 Jurisdictions worldwide, 2007, p. 122.
The OECD MNE Guidelines were inspired by many international conventions and declarations, e.g. Chapter IV on Employment and Industrial Relations was based on the ILO Conventions. See OECD Guidelines Commentaries §20-25, §30 and §37. India is not an OECD Member nor an adhering country (Box 4). However, as demonstrated in section 10.6 supra, the Guidelines can be of relevance to Indian suppliers.
Those ILO Conventions marked with * are not applicable to India as this country had not ratified them by February 2009. A UN (and hence ILO) member state is only bound by the ILO Conventions that it has ratified and by the ILO core principles (see: supra note 91 and 92).
The Workmen's Compensation Act entitles workers to compensation for damage suffered from any occupational hazards contracted during the course of the employment, including any accident happening during the course of employment.
OECD MNE Guidelines, Commentary §2: 'Obeying domestic law is the first obligation of business. TheGuidelines arenotasubstitutefornorshouldtheybeconsideredtooverridelocal law and regulation. They representsupplementary principles and standards ofbehaviourofa non-legal character, particularly concerning the international operations of these enterprises. While the Guidelines extend beyond the law in many cases, they should not and are not intended to place an enterprise in a situation where it faces conflicting requirements.'
The Payment of Bonus Act, Payment of Gratuity Act, and Payment of Wages Act also relate to wages. With regard to contractual matters, the law under the Contract Act (section 27) clearly bars any agreement in restraint of employment.
The 1927 Act recognises the binding force of collective agreements over individual contracts. It precludes employers and employees from agreeing contrary to the collective agreement. The 1937 Act vests power in the government to extend the 'binding force of a collective agreement to the personnel of all enterprises in a certain sector of the economy: See e.g. Antoine T.J.M. Jacobs, Labour Law in the Netherlands (Kluwer, The Hague, 2004), p. 145; and Blanpain (ed.), Collective Bargaining and Wages in Comparative Perspective: Germany, France, The Netherlands, Sweden and The UK, in: Bulletin of Comparative Labour Relations: Kluwer Law International 2005, p. 96. Whether a union can claim a seat at the table for negotiating a collective bargaining agreement is determined by jurisprudence and depends on several factors, such as number of employees it represents also in relation to other unions. See: P.Th. Mantel, 'Recht op toelating tot CAO onderhandelingen: Meer dan representativiteit?' (Right to Collective Bargaining: More than representation?), in Magazine for Labour Law and Social Affairs, SMA February 2008-no.2, p. 74-81
See also: supra note 8.
Non-valid reason are: union membership, illness, injury, pregnancy, participation in legal proceedings against employer.
Besides unions, works councils play an important role in the Dutch labour system. The Works Council Act prescribes that any company or business unit employing 50 employees or more is obliged to establish a works council, which consists of elected employees. A works council convenes with the management board at least six times a year. The management must consult the works council on material business decisions that might affect employees, such as reorganisations or the sale of (part of) the company. Moreover, decisions concerning a change in labour conditions or working hours require the works council's consent. The Netherlands is quite advanced in works council legislation and practice. Although it is a common European approach, only in Germany and the Netherlands are works councils taken quite seriously by employers and the courts. Their rights and duties are distinct from those of unions. In other European countries, like the UK and France, unions play the major role in defending labour rights and standards.
Labour Issue
Indian Law
Dutch Law1
ILO
OECD Guidelines2
Occupational Health & Safety
Factories Act 1948:
Health and Safety Act 2007:
ILO Conventions (C),3 C.155* (art.16.1 relevant for jeans manufacturing), C.161*, C.170*, C.184*:
Ch.IV §3, 4(b), V (environment):
- Health (Sec.11-20, Ch.III);
- Mandatory risk assessment;
- 'Within framework of applicable law minimise risks & accidents and raise level of safety;
- Safety in Factories (Sec.21-41, Ch.IV). Penalty will be levied for contravention.
- Consultation and information.
Workmen's Compensation Act:
- Safety at workplaces, machinery and equipment; production processes.
- workers compensation.4 Karnataka Factory Rules 1969:
- Duty to inform, communicate and consult employees.
- Health (Rules 16-56, Ch.III);
- Informing, training and consulting of employees;
- Safety applicable to different types of industry (Rules 57, Ch.IV).
- Emergency management. ILO MNE Decl. §100)
Working hours and paid leave
Factories Act-1948 and Factories Rules:
Working Hours Act, Civil Code:
C.1, C.4, C.14, C.30*, C.106*, C.132*, C.175*:
Ch.II:
- Referral to the laws and regulations applicable in the host country.5
- Working hours (Sec.51-54, Ch.VI);
- Standard of 40 hrs/wk, optional deviation with consultation;
- 8hrs/day, 48 hrs/wk (40 hrs/wk as reduced later on to 36 hrs);
- Annual leave with wages (Sec.79).
- Minimum number of paid holidays.
- Minimum of 24 consecutive hrs leave every 7 days;
- Annual paid holiday.
Protection against Discrimination
Equal Remuneration Act 1976 prohibits discrimination in payment of salary or recruitment (Ch.II).
General Act on Equal Treatment, Equal
C.100, C.111:
Ch.IV:
- Equal remuneration;
- Precludes any form of discrimination; several types of discrimination are outlined.
Opportunity Act:
- Equal opportunity and treatment re employment and occupation.
- Prohibition of discrimination on any ground.
Payment of fair wage
Government of Karnataka Notifications under the Minimum Wages Act1958 (Sec.12):
Minimum Wage Act 1968.
C.95*, C. 131*, C.100:
Ch.IV:
- Observance of local standards in same industry is suggested.
- Payment of wage in full & timely manner, setting minimum wage;
- Minimum wages per category of employees in different industries in different local zones are annually set.6
- No clear provision on wage level;
- Equal remuneration
Freedom of Association (FoA) and Collective Bargaining (CB)
Trade Unions Act of 1926:
Constitution (Sec.8), C.87, C.98, Works Council Act, Civil Code, Collective Agreement Act 1927, Extension of Collective Agreement Act 1937;7
C.87 (art.2), C.98, C.135, C.141* (art.3), C.154:
Ch.IV:
- Referral to ILO Conventions on FoA and CB.
- Registration (Sec.4) and recognition of trade unions.8
- FoA for workers and employers;
- It would be considered Unfair Labour Practice if an employer is showing partiality or granting favour to one of several trade unions attempting to organise his workers or to its members, where such a trade union is not a recognised trade union (Sec.i2(b)).
- Protection against anti-union activities and protection for representatives;
- FoA and protection of employees' representatives;
- Right to CB.
FoA and CB are declared as ' core principles' in 1998 ILO Declaration on Fundamental Principles and Rights (applicable to all ILO Members).
- Right to establish trade unions, works council & European Works Council;
- Dispute settlement procedure for workers provided by Trade Union Act and Industrial Dispute Act (Sec.18).
- Recognition of CB agreements.
Protection against Dismissal
Summary dismissal of any employee is not possible. Disciplinary dismissal actions are governed by Industrial Disputes Act 1947.
Civil Code, Act on Notification on Mass Layoffs:
C.158*:
Ch.IV:
- Protection against unfair dismissal;9
- Enterprises should file notice to employees and their representatives re potential mass lay-offs.
- Mandatory notification with administrative bodies for individual and mass layoffs;
- Specified grounds for dismissal;
- Mandatory notification with administrative bodies and consultation with workers' representatives in case of (collective) dismissals.
- Specified grounds for dismissal;
- Protection against unfair dismissal.
- No arbitrary dismissal procedures (ILO MNEDecl. §27)
Worker Participation/ Codetermination
Works Council Act:
C.154, C.158*:
Ch.IV:
- Mandatory consultation with workers' representatives in case of (collective) dismissals.
- Consultation and cooperation on matters of mutual concern is recommended;
- Rights to information, consultation and approval.10
- Providing information re substantial changes in operations.