REPRESENTATIVE COMPOSITION OF PUBLIC BODIES
SER-CRITERIA
FOR DETERMINING
THE
REPRESENTATIVE
COMPOSITION
OF PUBLIC BODIES
SER CRITERIA
FOR DETERMINING THE
REPRESENTATIVE STATUS
OF PUBLIC BODIES
SociaalEconomische
Raad
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Translated by: Baxter Associates/Hilversum
ISBN 90-6587-804-1
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Table of contents
1.
Introduction
3
2.
The combination of private interest and public
responsibility
3
The role of the SER in determining the representative
status
4
3.
4.
4.1
4.2
4.3
4.4
The application of the SER’s criteria in practice
Qualitative and quantitative criteria
The representative status of organisations
The representative status of public bodies
The representative status of commodity and industrial
boards
6
6
6
7
5.
The allocation of seats
8
6.
The composition of the SER
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7
3
4
1.
Introduction
In the Netherlands, employers’ organisations and trade unions
are represented in numerous public bodies. Some of these bodies,
indeed, consist mainly of representatives of employers and
employees. One such body, at national level, is the Social and
Economic Council of the Netherlands (Sociaal-Economische Raad,
SER). At the levels of sectors and regions there are various
similarly constituted bodies. Both employers’ organisations and
trade unions are governed by private law (i.e., the equivalent of
civil law in the Common Law system). However, by participating in
these public institutions, varied though their tasks may be, the
employers’ organisations and trade unions take on an explicit
function in the public domain. It is therefore a matter of public
policy that the composition of these bodies should meet certain
standards of representativeness.
The SER is responsible for advising the government on such
matters. This publication describes the criteria applied by the SER
in drawing up such advice. Section 2 discusses the role of public
bodies in the Netherlands and places it in the larger context of
Dutch political and socio-economic culture. Section 3 explains the
SER’s role in assessing the representative status of the employers’
organisations and trade unions in these bodies, including which
aspects of representativeness are considered relevant. Section 4
then describes the SER’s criteria for representative status and
shows how they are applied to (a) employers’ organisations and
trade unions, (b) the public bodies themselves, and (c) the special
case of commodity and industrial boards. Section 5 looks at the
question of how the available seats are allocated. Finally, in
section 6, the working of the system is illustrated by reference to
the way in which the composition of the SER has developed over
the past 50 years.
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2.
The combination of private interest and public
responsibility
A political system designed to achieve consensus
The Netherlands has a long political and administrative tradition
of settling differences, striving for consensus, using all the
expertise available to resolve problems and seeking to broaden
support for public policy wherever possible. This pragmatic and
consensual approach can be seen in the very way in which the
country is constituted. The Netherlands is a single, united state,
but with certain powers decentralised, and the country is
administered in accordance with the principles of a multi-party
parliamentary democracy. Elections are conducted on the basis of
proportional representation. The practical result of this is that no
one party ever wins a majority of votes. This in turn obliges at
least some political parties to negotiate a coalition in order to be
able to form a government at all. The whole administrative system
is thus permeated by an attitude of striving for agreement
between various parties and settling differences. An important
aspect of this is the attempt at all times to create a broad base of
support for policy through consultation.
This method of policy-making differs greatly from the AngloSaxon tradition with its two-party system, in which all power falls
the winning party (the ‘winner-takes-all’ or ‘first-past-the-post’
system). In that tradition, government policy is solely a matter for
politics, and there is hardly any provision in administrative law
for the involvement of third parties as a matter of course.
Virtually the only way third parties can influence government
policy is through lobbying (which may or may not be regulated by
the government).
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The involvement of ‘social partners’ in furthering the public interest
The Dutch way of settling differences to serve the public interest
can be seen not only in the way political parties set about forming
a government, but also in the way socio-economic interest groups
participate in the making and implementation of policy.
As in other democracies, industrial relations in the Netherlands
are based on the principles of freedom of contract and freedom of
association. However, Dutch employers’ organisations and trade
unions are encouraged not merely to operate as representatives of
their respective members’ varying and sometimes even
conflicting interests, but when appropriate to set aside partial
interests and work together for the public good. This explains why
these two groups are usually referred to as ‘the social partners’ (de
sociale partners). Although it is accepted that employers, employees
and government all have different responsibilities and goals,
there is a strong awareness that they are interdependent and
need to work together if they are to achieve their shared socioeconomic goals.
In addition to market forces and government intervention,
therefore, coordination of policy between government and social
partners is considered a third way of achieving socio-economic
coordination. This is also called the ‘Polder Model’, or
‘consultation economy’. Here, the influence of social partners is
institutionalised in organisations such as the SER. Naturally, this
does not exclude the possibility of influencing government policy
by promoting private interests through lobbying.
The SER
The SER, established by law in 1950, is an outstanding example of
a forum in which the social partners meet to promote the public
interest. One third of the seats on the SER are occupied by
independent experts, one third by representatives of employers’
organisations and one third by representatives of trade unions.
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Ministerial officials may attend the meetings of the SER and its
committees as observers.
The SER’s main task is to advise government on social and
economic issues and to stimulate industry to be guided by the
public good in determining its actions. The SER’s advice is
designed to promote the achievement of (a) balanced economic
growth in line with ecologically sustainable development, (b) full
employment and (c) a fair distribution of income. The efforts of
government, employers’ organisations and trade unions, each
approaching the task from the point of view of its own specific
responsibilities, are essential if these shared goals are to be
achieved. Taking this interdependence into account, the SER
advises on matters such as general socio-economic policy, social
security and healthcare, environmental policy and major issues
relating to European integration.
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3.
The role of the SER in determining
representative status
The role of the SER
A number of statutes prescribe that the SER should rule on the
representativeness of public bodies in which employers’ and
employees’ organisations are represented. In certain cases, the
SER’s ruling is advisory, as it is, for example, when it is advising
government on the composition of the SER itself. In other cases, it
is binding, as, for example, in the case of regional chambers of
commerce, and of executives of sectoral commodity and
industrial boards. In such cases, the SER decides (a) which
employers’ organisations and trade unions satisfy the SER’s
criteria for representative status and are therefore entitled to
appoint members of the board of the body in question, and (b) the
number of board members each such organisation may appoint.
Determining the representative status of organisations and public bodies
To improve the consistency and transparency of its rulings and to
ensure that membership of public bodies may be open to new
organisations, the SER has made public its criteria for
establishing representative status. These criteria fall into two sets:
one is applied to determine the representative status of an
individual organisation, while the other is applied to determine
the representative status of the public body that comprises such
organisations as a whole.
This distinction between the representativeness of an individual
participant organisation on the one hand and the
representativeness of a public body as a whole on the other hand
is not made merely on the grounds of practical convenience; a
matter of principle is involved. Public bodies normally consist of
representatives from a number of different employers’
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organisations and trade unions. Before seats are allocated to the
potential participant organisations, it is important to determine
(a) which of them can be regarded as representative and (b) what
the balance of power among them is.
In the case of certain public bodies, it is enough to answer these
questions with respect to individual organisations, and there is
no need to consider the question of how far the body as a whole
can be said to be representative. Although this latter issue will in
practice affect the authority with which the body speaks, it is not
taken into account in determining the rights of individual
organisations to appoint members.
The importance of the basis of support enjoyed by a public body
depends mainly on the way it was set up and the powers it is
given. Public bodies may be set up either on the initiative of the
government itself, or at the request of a specific industry or
sector. In the case of bodies set up on the initiative of the
government, there is no need to consider the degree of public
support enjoyed by such a body, since its primary legitimacy may
be assumed to derive from the democratically elected government
that sets it up. In the case of a public body set up at the request of
a specific industry or sector, however, especially if it is allowed to
impose binding regulations, it is only reasonable that, before it is
set up, the body as a whole should be expressly required to satisfy
certain criteria to establish whether it enjoys sufficient general
support.
Most public bodies in the Netherlands are established on the
initiative of the government (typical examples are the SER and the
chambers of commerce). The government wishes to make sure
that appropriate organisations are represented on such bodies.
In advising the government on the composition of such bodies,
the SER therefore limits itself to consideration of (a) the degree
to which each individual organisation is representative of a
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significant interest group, and (b) the eventual composition of the
body itself, i.e., the allocation of seats within it, determined on
the basis of the relative power of the individual organisations. The
SER does not explicitly consider the degree of support the public
body as a whole enjoys.
The case of commodity and industrial boards is different from the
situation sketched above in that they are set up at the request of a
given sector of business or industry. Before setting up a public
body of this sort, the government needs to be sure that the
organisations wishing to form it enjoy sufficient support within
their sector. For this purpose, the government asks to the SER to
provide an assessment of such support.
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4.
The application of the SER’s criteria in practice
4.1
Qualitative and quantitative criteria
The SER has established a number of qualitative and quantitative
criteria for assessing the representativeness of organisations and
the degree of public support enjoyed by public bodies. These
criteria are contained in two publications: Verordening
representativiteit organisaties (Regulation concerning the
representative status of organisations), which has been approved
by the government; and Besluit advisering representativiteit
bedrijfslichamen (Resolution relating to recommendations
concerning the representativeness of industrial sector bodies).
The first of these two publications deals with criteria for
determining (a) the degree to which an organisation can be said to
be representative of its stated interest group, (b) the degree to
which an organisation can be said to be representative of the
domain within which the relevant public body operates; and (c)
whether an organisation may be designated as having the power
to appoint members of the public body, and how many seats
should be allotted to each organisation so designated.
The second publication deals with criteria for determining the
degree of support enjoyed by a public body, considered as a whole.
4.2
The representative status of organisations
In order to be considered for the right to appoint members of a
public body, an organisation (i.e., an employers’ organisation or
trade union) must satisfy the precondition that it has as its object
to be active in the field in which the said public body operates.
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If the organisation can meet that pre-condition, it must then
satisfy the criteria for representative status. Three of these criteria
are qualitative in nature; others are quantitative.
The first of the qualitative criteria to be met is that the
organisation should have the legal form of an association
(vereniging): in other words, it should be democratically
constituted. This is referred to as the ‘democratic requirement’.
Secondly, the organisation must have been in existence for at least
two years and have sufficient financial support: in other words, it
must demonstrate a reasonable measure of permanence. This is
referred to as the ‘continuity requirement’. Thirdly, the
organisation must promote the social and economic interests of
employers or employees in accordance with its articles of
association, and its policy should not be influenced by any
organisation which is not an employers’ organisation or a trade
union (e.g., a church or political party).
The quantitative criteria are intended to determine the degree to
which an organisation is representative of its interest group (or
‘target group’). The degree to which an organisation is deemed to
represent its target group is determined on the basis of ‘socioeconomic weight’ of the organisation’s membership within the
target group as a whole. An organisation is considered to be
sufficiently representative if its membership has ‘not
inconsiderable’ socio-economic weight within its target group. In
the case of trade unions, this is determined on the basis of the
number of members they have within the target group. In the
case of employers’ organisations, the criterion of the size of the
membership is also used, though this may be augmented by
consideration of the members’ combined turnover or the total
size of the membership’s workforce.
No strict definition is given of ‘not inconsiderable’. The SER takes
the view that a certain degree of freedom and discretion is both
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reasonable and desirable in order that a well-considered
assessment can be reached, taking into account the
circumstances of the specific target group and the degree to
which those working within it are organised into clearly defined
groups or not.
4.3
The representative status of public bodies
After having established that an organisation meets the criteria
for representative status, the next step is to determine whether it
is eligible in other respects to participate in the public body in
question. It is important that the organisation should operate at
the same level at which the public body operates. One of the
criteria therefore requires that an organisation is only eligible to
participate in a public body if the organisation’s target group and
object relate to the tasks carried out by the public body in
question. The organisation must also be willing and able to help
perform those tasks.
The criteria distinguish public bodies at three levels. The first
level is the national level (the level at which the SER operates, for
example). At this level, the main organisations eligible for
representation in public bodies are the national employers’ and
employees’ organisations. In special circumstances, however,
industrial or sectoral organisations may also be eligible.
The second level is that of the industrial sector (the level at which
commodity and industrial boards operate, for example). At this
level, the main organisations eligible for representation in public
bodies are the industrial or sectoral organisations (representing
employers and/or employees), as well as national organisations
with one or more departments or affiliated organisations active
in the relevant sector. Under special circumstances, organisations
that focus only on part of a sector (e.g., trade associations) may
also be eligible for representation.
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The third level is the regional level (the level at which the
chambers of commerce operate, for example). At this level, the
main organisations eligible for representation on public bodies
are regional organisations and those national organisations that
have a department in the region concerned. Under special
circumstances, sectoral organisations and other national
organisations may also be eligible for representation.
4.4
The representative status of commodity and
industrial boards
Commodity and industrial boards act as authorities for particular
sectors of the economy and are managed by representatives of
employers and employees from the sector in question. On
commodity boards, representatives of the production and
marketing elements in the chain (from suppliers of raw materials
to retailers) work together. Industrial boards represent a
particular sector or trade (e.g., the retail trade, the catering
industry, or forestry). The tasks and powers of these boards and
the conditions under which they should operate are regulated by
law.
A marketing or industrial board is set up on the initiative of the
relevant trade or industry itself. When advising on the setting up
of such boards, the SER therefore needs to assess not only the
degree to which each of the individual organisations is
representative of its interest group, but also the amount of
support the management of the board may be expected to be
given by the organisations. Moreover, in the case of an existing
board, the SER needs to determine whether it still enjoys
sufficient support to enable it to continue.
The criteria used by the SER to assess the degree of public support
for a public body are set out in its publication entitled Besluit
advisering representativiteit bedrijfslichamen.
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A public body is considered to enjoy sufficient general support if
the following criteria are met:
– Employers’ organisations
The employers’ organisations entitled to be represented on the
body represent at least 55 percent of the socio-economic weight
of all employers falling within the scope of the public body, as
determined by application of one of the criteria mentioned
above (size of membership, size of workforce, amount of
turnover). If the membership of the employers’ organisations
score more than 50 percent on two of the indicators for socioeconomic weight, the degree of support enjoyed by the
employers’ organisations is also considered to be sufficient
– Employees’ organisations
At least one of the trade unions represented on the public body
must be representative in terms of the criteria mentioned
above (and given in full in the Verordening). The unions
represented must also have more members working within the
scope of the board than any other representative trade unions
that object to the setting up or continuance of the public body
(i.e., marketing or industrial board).
The support that a board enjoys (or may be expected to enjoy) is
assessed before the board is set up and again thereafter every four
years. If the support for an existing board is found to be
insufficient, it will be assessed again after two years. If it is still
found to be insufficient, the SER may advise the ministers
involved to consider whether the board should be dissolved. This
procedure, by which support is assessed on a regular basis,
ensures that, if a marketing or industrial board wishes to
continue in existence, it needs to retain sufficient support.
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5.
The allocation of seats
The above procedure results in the designation of certain
organisations as being entitled to appoint representatives to a
given public body. The next step is to determine how many seats
should be allocated to each organisation. First, the organisations
in question are asked whether they can reach unanimous
agreement among themselves on the numbers of seats to be
allocated to each organisation. If they are unable to do so, the
seats available for representatives of employers’ organisations are
allocated in accordance with the socio-economic weight of the
organisations involved. The seats available for allocation to
employees’ organisations will also be allocated according to socioeconomic weight. A group of organisations may ask the SER to be
considered a single organisation for the purposes of the
allocation of one or more seats. This provision ensures that
smaller organisations can also be represented on public bodies.
Seats are allocated according to the ‘greatest remainder’ system.
Firstly, a ‘quota’ per seat is determined on the basis of the sum
total of the members of the organisations involved divided by the
number of seats available. Whole seats are then allocated to
individual organisations on the basis of the number of members
in the individual organisation divided by the quota. Any
remaining seats are allotted to the organisations that have the
greatest remainder (see box).
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The allocation of seats on the basis of the ‘greatest remainder’ system:
an example
Suppose 15 seats are available for allocation to 4 organisations (A, B, C, D)
Together, A, B, C and D have a total of 930,000 members, distributed as
follows:
A: 125,000 members
B: 300,000 members
C: 450,000 members
D: 55,000 members
The number of members required for one seat (the ‘quota’) is therefore
930,000 ÷ 15 = 62,000
Based on this quota:
A receives 2 seats (Remainder 1,000)
B receives 4 seats (Remainder 52,000)
C receives 7 seats (Remainder 16,000)
D receives 0 seats (Remainder 55,000)
The number of seats remaining is 15 – 2 – 4 – 7 – 0 = 2
D has the largest remainder (55,000) and therefore receives one of the two
remaining seats.
B has the next largest remainder (52,000) and therefore receives the other
remaining seat.
The final allocation of seats is therefore:
A: 2 seats
B: 4 + 1 = 5 seats
C: 7 seats
D: 0 + 1 = 1 seats
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6.
The composition of the SER
Every two years, up-to-date information about employers’
organisations and trade unions is used to help determine the
composition of the SER. At such times, new organisations may
apply to be represented in the SER, and this is a regular
occurrence, both with respect to employers’ organisations and
employees’ organisations.
The representativeness of new candidate organisations is tested
against the criteria mentioned above. If they meet these criteria,
they are considered eligible to be represented in the SER, and
when approved by the other organisations already represented,
they are allocated seats, taking into account their socio-economic
weight. However, in some instances, they may be too small to be
entitled to a seat.
The table below shows the changes in the composition of the
employers’ and employees’ representation in the SER over the past
half-century (in 1950, 1975 and 2000). The third group that sits in
the SER – the independent experts – is left out of account here:
this group is not subject to the criteria for representative status,
since the independent experts are appointed directly by the
Crown.
The table shows that in the early decades, the SER had to be quite
large in order to accommodate all the relevant employers’
organisations. However, more recently, many employers’
organisations have merged. As a result, in the 1990s, the number
of seats could be reduced by a third (to 33 seats), each section
having 11 seats, while still maintaining the adequate
representation of employers.
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In 2000, three national employers’ organisations were
represented: a general organisation (VNO-NCW, Confederation of
Netherlands Industry and Employers), an organisation for SMEs
(MKB-Nederland, the Dutch Federation of Small and Medium-Sized
Enterprises) and a central organisation for agriculture and
horticulture (LTO-Nederland, the Dutch Organisation for
Agriculture and Horticulture). Because the SER is only intended to
provide a forum for private industry, the employers’ section in the
SER does not include public sector employers.
Table – The composition of employers’ and employees’ sections in the SER
in 1950, 1975 and 2000
Year
total no. of seats
(With distribution
across Crown-appointed Experts/ Employers/ Employees)
employers
No. of organisations
(With allocation of
seats)
employees
No. of trade unions
(With allocation of
seats)
1950
45 seats
(15/15/15)
14 organisations
(1 org. with 2 seats
13 orgs. with 1 seat
each)
3 organisations
(1 org. with 7 seats
1 org. with 5 seats
1 org. with 3 seats)
1975
45 seats
(15/15/15)
29 organisations
(2 orgs. with 2 seats
each
4 orgs. with 1 seat
each
23 orgs. with shared
seats: 7 seats)
3 organisations
(1 org. with 7 seats
1 org. with 5 seats
1 org. with 3 seats)
2000
33 seats
(11/11/11)
3 organisations
(1 org. with 7 seats
1 org. with 3 seat
1 org. with 1 seat)
3 organisations
(1 org. with 8 seats
1 org. with 2 seats
1 org. with 1 seat)
It will be noted that, within the employees’ section, the seats were
distributed over three organisations in all three reference years.
However, this should not be taken to imply that no changes have
taken place over the years. Several unions have merged into a
larger trade union. Moreover, new organisations have joined the
SER. An organisation representing professional and managerial
staff (the Unie mhp) is now represented on the SER, while another
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new organisation joined in the 1990s, later merging with one of
the other sitting organisations.
In 2000, the following trade unions were represented in the SER:
the general trade union (the FNV, Federation of Netherlands Trade
Unions), the Protestant CNV (the National Federation of Christian
Trade Unions in the Netherlands) and the Unie mhp mentioned
above.
SER/DBZ July 2001
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Under Dutch law, the Social and Economic Council of the
Netherlands (Sociaal-Economische Raad, SER) is assigned
the task of assessing the representative status of all employers’
organisations and trade unions that participate in public bodies.
Examples of such bodies include the SER itself, the regional
chambers of commerce and the executives of commodity and
industrial boards. In the case of the executives of commodity and
industrial boards, the SER is required not only to determine the
representative status of each participant organisation but also to
establish whether the public body as a whole enjoys sufficient
general support from both employers and employees. This brochure
briefly describes the criteria and procedures used by the SER to
determine and assess the representative status of organisations
and the support enjoyed by public bodies.
Published by:
Sociaal-Economische Raad (Social and Economic Council)
Bezuidenhoutseweg 60
Postbus 90405
2509 LK Den Haag
The Netherlands