Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Netherlands (Ratification: 1950)

The Committee takes note of the observations received on 31 August 2021 from the Netherlands Trade Union Confederation (FNV) and the National Federation of Christian Trade Unions (CNV), which refer to matters examined by the Committee in the present direct request. The Committee further notes the Government’s detailed reply to the 2017 observations from the FNV, the CNV and the Trade Union Federation for Professionals (VCP).

Article 3 of the Convention. Right of workers’ organizations to organize their activities in full freedom. In its previous comments, the Committee requested the Government to provide its comments on the use in practice of agency workers to break strikes – as alleged by the FNV, the CNV and the VCP. The Committee notes the Government’s indication that: (i) article 10 of the Dutch Posting of Workers by Intermediaries Act (Waadi) prohibits temporary employment agencies to provide workers to a company during a strike within that company; (ii) in the event of suspicion of non-compliance with this article, social partners or other parties concerned can submit a formal request to the Social Affairs and Employment Inspectorate (Inspectorate SZW) which conducts an extensive investigation regarding all facts and circumstances relevant for the specific situation and working relationship; (iii) the Inspectorate SZW has no legal means to enforce article 10 Waadi apart from conducting an investigation and issuing a report. It is up to the reporting party or parties to go to civil court and to make use of the facts presented in the report by the Inspectorate SZW.

The Committee also takes note of the 2021 observations of the FNV and the CNV according to which the Inspectorate SZW does not always have immediate access to the workplace to detect a violation of the strike-breakers ban, as evidenced by various collective actions that have taken place in recent years at Schiphol Airport, where many ISZW inspectors have no direct access behind customs due to the specific regulations on the Schiphol territory. They allege that, after a violation has been established, it takes a year or longer before ISZW issues a report and that, when a trade union subsequently starts legal proceedings against the offenders, the civil court imposes damages of no more than 5,000 euros per offender, which are not dissuasive. Moreover, the Committee notes that these two workers’ organizations denounce the so-called “intra concern exception” contained in the Waadi, which makes it possible for a subsidiary to fly in employees to serve as strike-breakers with impunity in the event of a strike. Finally, the Committee takes note of the complaint lodged in July 2021 by the European Trade Union Confederation (ETUC), the FNV and the CNV before the European Committee of Social Rights in which they allege, inter alia, that the manner in which Dutch higher and lower courts impose restrictions on collective actions is not in conformity with the European Social Charter. In view of the above and in particular the last observations from the FNV and the CNV according to which the strike-breakers ban lacks effectiveness, the Committee requests the Government to continue to provide detailed information on the application in practice of article 10 of the Dutch Posting of Workers by Intermediaries Act (Waadi) which prohibits temporary employment agencies to provide workers to a company during a strike within that company.