Opinion: Legal pitfalls

POSTED: 06/10/11 2:10 PM

Now that there is at least some clarity about where the National Alliance intends to go with its initiative draft law on short term labor contracts the public debate about the pros and cons will finally be able to begin.

What stands out in the draft is its vagueness and the many ways it defies logic. While we do not doubt that the party wrote the draft with the best of intentions, it leaves so many questions unanswered, while triggering a host of others that one may well ask the question what parliamentarians will be voting for or against once the draft – with its unknown amendments – will be tabled.

While we are no experts on the legal finer points of such legislation, we fear that – if the Parliament decides to pass this law – it will have a stifling effect on the labor market.

There is no question that employees, as the weaker party in a labor relationship, are entitled to decent protection. But to design a straightjacket for employers as this initiative law does, will most likely not lead to what the law makers are shooting for – steady employment for as many people as possible.

We suspect that companies will start looking for alternatives, and they are not hard to find. The market for manpower agencies will blossom, and these agencies will become the new employers of the workers who are now struggling with short term labor contracts without perspective for a permanent contract. Employers will then create even more freedom for themselves and man power workers will remain the ultimate short term contract force.

The question that has not been answered up to this point, at least we have not seen in quantified anywhere, is this one. How many workers are really holding a short term contract? What sectors of the economy do they work in? Are these short term contracts tools of abuse or are they justified given the nature of the business?

An oddity that anyone without a legal background will notice is that the draft legislation wants to introduce penalties in the civil code: a maximum of 8 months imprisonment or a maximum fine of 10,000 guilders. Such measures belong in the penal code, not in the civil code.

It seems to us that the authors of this initiative law have to go back to the drawing board. They need to research the true depth of the perceived problem, and they need to look at alternatives to solve it.

One solution that comes to mind is a true partnership between the public and private sector and the labor unions. To forge that partnership the mind set needs to change, because right now most unions consider employers the enemy. That is not the basis for fruitful cooperation, or the basis for creating win-win situations.

Unions have to realize that without employers – without companies in the private sector – there is no employment at all. The private sector is all too aware of the fact that without employees they are unable to run their businesses.

It ought to dawn on all parties that they need each other. Therefore, they will have to find common ground if they want to flourish. The NA’s initiative law, how well intended it may be, triggers too many questions, and is riddled with too many legal pitfalls. It needs a very, very thorough renovation, before it is fit to be written into law.

On the upside, now that the draft is in the public domain, many interested parties will comment on it. All these opinion, ideas and suggestions deserve careful consideration. That way, something good and truly useful may come of this initiative.

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