The Role of Private Regulation in Creating, Interpreting and Enforcing Labour Law

Labour law is an early example of a field of law in which non-state actors participate intensively in its creation, interpretation and enforcement. Ever since Teubners’ concept of ‘reflexive law’ (Teubner, 1983) it has become mainstream to involve other actors in government-activity, because it is presumed that these actors are better able to regulate themselves or their members for the sake of effectivity of the policy in general. Sometimes, governments use minimum rules within which these actors have to operate.

One of the oldest examples of ‘reflexive law’ is the collective labour agreement. Also here, governments are involved with the work of non-state actors such as trade unions and employers’ organizations. On the one hand the state ought to respect the fundamental right on freedom of association and collective bargaining. It should be a state-free zone according to the fundamental ILO conventions. On the other hand the state ought to facilitate a machinery in order to stimulate the process of collective bargaining. Especially in the decision to impose this collective agreement on a complete sector of the economy: to make it generally binding, the minister of Social Affairs and Employment has a responsibility.

In this contribution we will analyze the interaction between the legislator (the minister) and the social partners in the creation, the interpretation and the enforcement of labour law. The focus will be on the Netherlands and on Dutch law with a brief excursion into the EU-level negotiations between management and labour. After an introduction into the concepts of reflexive law we will give an overview of the interaction in the Netherlands between management and labour on the one hand and the legislator on the other hand. A continuum of forms from pure soft-law to private regulation in the area of Dutch labour law will be given. The most important part of our contribution is a limited number of case studies: private regulation by collective agreement replacing legislation; private regulation by collective agreement complementing (minimum)-legislation; private contract (ondernemingsovereenkomst) interpreting legislation; enforcement of private regulation by collective agreement by a foundation. In what way does the interaction between private regulation and public regulation evolve?

Keywords: reflexive law, collective labour agreements, private and public regulation

*Department of Company and Labour Law, University of Groningen.