Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Netherlands (Ratification: 1993)

The Committee notes that the Government has not sent its observations on the comments dated 4 November 2002, made by the Netherlands Trade Union Confederation (FNV) with regard to the application of the Convention.

In its observation, the FNV mainly raises two points: firstly, the national legislation does not contain any special provision with regard to the protection of workers against acts of anti-union discrimination other than dismissals - article 611 of Book 7 of the Civil Code only provides for a general obligation of the employer to behave as a fair employer; secondly, the Minister of Social Affairs and Employment disposes of no legal instrument or mechanism to check that a trade union party to a collective agreement is independent, since trade unions have no legal obligation to disclose their financial resources, performance and membership. In this connection, when the Minister of Social Affairs and Employment declares applicable erga omnes a sectoral collective agreement, an employer can be exempted from its application, if it has concluded another collective agreement with a trade union. While the FNV accepts this exemption, which corresponds to the exercise of the right to collective bargaining, it is concerned that employers use small unions without any substantial membership to avoid the extension of the sectoral collective agreement.

Concerning the first point, the Committee recalls that in previous comments, it requested the Government to indicate the manner in which workers are protected against acts of discrimination other than dismissal. At the time, the Government indicated that there was no specific legislation, but that particular legislative provisions, as well as collective agreements, afforded workers the necessary protection when taking up employment or upon dismissal. Further, workers could submit the matter to the courts and for urgent cases, a "summary proceeding" was provided for. The Committee has noted, since then and with satisfaction, that article 670, paragraph 5, of Book 7 of the Civil Code has been amended by the Flexibility and Security Act to afford legal protection to trade union representatives and affiliates by prohibiting their dismissal for anti-union reasons. The Committee requests the Government to provide, in its next report, updated and detailed information on the protection afforded to workers against any act of anti-union discrimination other than dismissal, in the course of employment, in accordance with Article 1 of the Convention. The Committee invites the Government to submit any relevant legislative or collective agreement, provisions or judicial decisions.

With respect to the second point raised by the FNV, the Committee considers that the real issue at stake is the absence of any legal mechanism to examine the independence of trade unions vis-à-vis employers in the framework of collective bargaining or the extension of sectoral collective agreements. While the Committee notes that the FNV does not refer to specific cases in which the independence of trade unions has been undermined, it requests the Government to send its observations on this issue and invites it to initiate discussions with the most representative workers’ and employers’ organizations.

The Committee will pursue the examination of the issue concerning the amendment of the Act on the Legal Status of Judicial Officials, which is pending, when it receives the Government’s report submitted under the regular cycle.