Dr. Frank Tros
University of Amsterdam
Amsterdam Institute for Advanced labour Studies (AIAS)
Email: [email protected]
Work in progress!
Title of the paper:
Beyond the principle of ‘formal equality’. Responses and effects of the legislation
on age discrimination in employment in the Netherlands’
Central questions
This paper deals with a critical socio-legal analysis of the implementation, debates
and effects of the Equal Treatment in Employment (Age Discrimination) Act in the
Netherlands, since its introduction in 2005.
Five central questions will be answered in this paper:
(i)
what have been the impacts of this Act on policy debates and discussions
in broader society regarding to older workers in labour markets and
organizations?
(ii)
What have been the responses of collective bargaining parties and
companies on the Dutch legislation on age discrimination in employment?
(iii)
How is the governance model around the Equal Treatment in Employment
(Age Discrimination) Act related to discussions of ‘local justice’ of social
partners and companies?
(iv)
How is the legislation, its implementation and its effects related to the
several principles of justice: (a) formal equality, (b) fairness and (c) needs?
(v)
How do these principles of justice interplay with principles of economic
efficiency in labour markets and HRM regarding to older workers?
Approach
In this paper, theoretical socio-legal literature on principles of (local) justice regarding
to age discrimination, equal treatment and equality (Elster, Engelstadt, Hepple) are
confronted with i) evidence based investigations on the evaluation of the Equal
Treatment in Employment (Age Discrimination) Act, and ii) the responses of
collective bargaining parties and HRM regarding to debates and regulations on older
workers after the implementation of this this legislation. Further, this paper discuss
recent debates about policies and regulations on older workers , and their position in
labour markets and companies, with principles of justice (formal equality, fairness,
needs) and efficiency.
Some (preliminary) conclusions
The European Framework Directive 2000/78/EC is implemented in the Netherlands
through the Equal Treatment in Employment (Age Discrimination) Act in 2005
(WGBL, Wet Gelijke Behandeling op grond van Leeftijd bij arbeid, 2005). The
national ‘Commission on Equal Treatment’ has played a main role in the
implementation process. This Commission has been given important tasks by
national law, such as i) implementing European Directives on discrimination and
equal treatment, ii) juridical reviews of individual complains and mediation, iii)
developing juridical reviews of collective labour agreement, social plans and
company regulations regarding to age related issues, and iv) influencing the societal
debate on (age) discrimination and equal treatment in employment and labour
markets (since 2012 this Commissie Gelijke Behandeling has become part of College
voor de Rechten van de Mens: ‘The Netherlands Institute for Human Rights’ ).
In the first year of its existence, the approach of this Commission focused strongly on
the principle of ‘formal equality’ by following a rather strict meaning of equal
treatment. This position went hand in hand with arguments of making the labour
markets for older workers more efficient by deregulation. The main arguments in the
promoting equal treatment were the negative side effects of extra protection rules for
the older workers in employment and social security: higher labour costs, confirming
stereotypes of the limited capacities of older workers etc. Trade unions were put in a
defensive position to justify age –related regulations in Collective Labour Agreements
(CLA’s) that aim to spare and relieve older workers regarding to their workloads and
working conditions specific regulations for older workers in Social Plans in case of
restructuring that aim to protect their incomes in case of (collective) dismissals.
Since 2006, the social partners have been more involved in the interpretation of the
legislative criteria on ‘legitimate goals’, ‘appropriateness’ and ‘necessity’ regarding to
direct discriminating age-regulations. In communication with the social partners, the
Commission introduced a more light, and contextual juridical review on age
regulations in CLA’s and Social Plans (see Figure 1). Age regulations in CLA’s or
company policies (agreed with the works council) can be justified in the context of a
so called ‘age aware HR policy’, ‘life cycle aware HR policy’, or ‘life course
regulations’. Collective bargaining parties and large companies have reformed some
‘old’ direct discriminating regulations for older workers in this more broader, and
more indirect age discriminating concept of ‘age-aware HRM’ (see table 1). This
process of reforming specific regulations and adding new age-related regulations on
older workers in a context of ‘age aware HR policies’ is still going on.
The evaluation study on the Equal Treatment in Employment (Age Discrimination)
Act shows that employers support and follow a more strict interpretation of the
legislation on anti age discrimination toward formal equal treatment (i.c. there are
more possibilities for exceptions of the rule of equal treatment than they know). The
Media in the Netherlands and the strict approach of the Commission during the
implementation of European Directive in the Dutch legislation have played also an
influencing role in this. Another finding is that (changes in) HR policies for older
workers are most influenced by economic and labour market reasons.
Recent debates in policy-reforms, industrial relations and HRM on older workers are
more and more focused on (short term) economic efficiency. Many employers and
politicians see the approach of ‘protection’ as contradictory to approaches of
‘personal growth’ and ‘flexibility’ in the end-career phases. This view is questionable,
basically and also regarding to the goal of enhancing the employment participation of
older workers and promoting longer working lives. Principles of justice regarding to
‘fairness’ and varying needs in different age and life stages risk to be oppressed.
ANNEX
Figure 1. Comparison between the standard juridical review of age regulations in
organisations/CLA’s and a more light review in case of ‘age-aware HR policies’,
agreed with trade unions/works council.
Table1. Shifts in number of provisions and other regulations in CLA’s regarding
to older in the Netherlands (sample CLA’s coves 85-90% of all employees under
collective bargaining)
Reduction of working hours
Extra holiday leave
Exemptions from
inconvenient work
schedules
Age aware HRM
Demotion for older workers
Opportunities to work after
age of 65
% of CLA’s in 2006
48
78
% of CLA’s in 2011
36
51
67
24
21
23
35 1
29
43
Source: Ministry of Social Affairs and Employment, The Hague.
1
2010