Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

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

The Committee takes note of the Government’s report. It also notes the comments made by the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation for Middle and Higher Level Employees (MHP) concerning the Government’s policy with respect to the extension of collective agreements and requests the Government to transmit its observations thereon.

1. The Committee’s previous comments concerned the absence of a legal mechanism to examine the independence of trade unions vis-à-vis employers in the framework of collective bargaining. The Committee notes that according to the Netherlands Trade Union Confederation (FNV) and, most recently, the CNV, 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 at the enterprise level, without any safeguards to ensure trade union independence and avoid the weakening of sectoral collective agreements in this context.

The Committee notes from the Government’s report that at the end of June 2003 a survey on the independence of four employees’ associations (in respect of which the CNV expresses its appreciation) found sufficient indications that three of them were insufficiently protected against involvement by the respective employers. Thus, the enterprise collective agreements concluded with these organizations were not granted exemption from the extended collective agreement which was applicable to the sector in question (that of temporary workers). The Committee further notes from the Government’s report that there is no hierarchical distinction between sectoral and enterprise collective agreements in the legislation and no requirement on the extent to which an employees’ organization must be representative in order to enter into a lawful collective agreement; thus, an organization with a relatively low number of members is also entitled to conclude a collective agreement which is placed at the same level as an extended sector agreement. According to the Government, freedom of association and collective bargaining is optimally guaranteed this way. The Government adds that on the basis of the Convention and section 5 of the European Social Charter, it is ensured in the Netherlands that an organization not free from influence by the other party in the collective bargaining process lacks the quality of a trade union and cannot act in terms of concluding a collective agreement.

Noting that the survey made in June 2003 identified some cases of lack of independence of enterprise-level trade unions vis-à-vis employers in the framework of the extension of sectoral collective agreements, the Committee invites the Government to initiate discussions with the most representative workers’ and employers’ organizations with a view to identifying appropriate means for addressing the issue raised by the FNV and the CNV.

2. In its previous comments the Committee had requested the Government to provide information on the protection afforded to workers against any act of anti-union discrimination other than dismissal. The Committee notes that the Government provides information on the general constitutional and legislative provisions in force as well as case law in this respect; it also refers to collective agreement clauses providing protection to trade union representatives so that they are not placed at a disadvantage because of their activities. The Committee requests the Government to provide in its next report more specific information on any legal provisions, collective agreement clauses or case law specifically providing protection against acts of anti-union discrimination other than dismissal (for instance, transfer, relocation, demotion and deprivation or restriction of remuneration, social benefits, or vocational training) not only to trade union representatives but also to all trade union members.

3. In its previous comments the Committee had requested information on the announced amendment of the Act on the Legal Status of Judicial Officials following an agreement between the Government and the Netherlands Trade Unions Confederation (NVvR), so as to allow associations other than the NVvR which represent civil servants in the judicial sector to take part in the consultative meetings concerning the terms of employment of judicial officials. The Committee notes with satisfaction that the amendment became effective on 1 January 2002 and that the monopoly position of the NVvR with respect to the negotiation of employment conditions has been abolished.