Dr. Frank Tros
University of Amsterdam
Amsterdam Institute for Advanced labour Studies(AIAS)
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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 theEqual Treatment in Employment (Age Discrimination) Act related todiscussions 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) justiceregarding to age discrimination, equal treatment and equality (Elster, Engelstadt, Hepple) are confronted with i) evidence based investigations on the evaluation ofthe Equal Treatment in Employment (Age Discrimination) Act, and ii) theresponses of collective bargaining partiesand HRM regarding to debates and regulations on older workers after the implementation of this this legislation. Further, this paper discussrecent 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/ECis implemented in the Netherlands through theEqual Treatment in Employment (Age Discrimination) Actin 2005(WGBL, Wet GelijkeBehandeling op grond van Leeftijdbijarbeid, 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 treatmentin employment and labour markets(since 2012 this CommissieGelijkeBehandeling 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 conditionsspecific 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 ofthe legislative criteria on ‘legitimate goals’, ‘appropriateness’ and ‘necessity’regarding to direct discriminatingage-regulations. In communication with the social partners, theCommission introduced a more light, and contextual juridical reviewon 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 regulationsfor 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)
% of CLA’s in 2006 / % of CLA’s in 2011Reduction of working hours / 48 / 36
Extra holiday leave / 78 / 51
Exemptions from inconvenient work schedules / 67
Age aware HRM / 24 / 35 [1]
Demotion for older workers / 21 / 29
Opportunities to work after age of 65 / 23 / 43
Source: Ministry of Social Affairs and Employment, The Hague.
[1] 2010