Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

Protection against acts of interference. The Committee’s previous comments concerned the need to introduce safeguards in the process of extension of sectoral collective agreements to ensure trade union independence and avoid the weakening of sectoral collective agreements. In this regard, the Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2628 (351st Report approved by the Governing Body at its 303rd Session (November 2008)). The Committee notes with satisfaction from the Government’s report that: (i) the previous policy was one in which the Minister of Social Affairs and Employment had authority to declare a collective agreement universally binding in a certain branch of industry and to grant dispensation (exemption) more or less automatically when so requested by parties which had previously concluded collective agreements at a lower level; (ii) this policy had to be abandoned following a decision of the Council of State which decided on 27 October 2004 that such a dispensation decision is open to objection and appeal and that there must be a clearer set of procedural rules; in response, the Government changed the regulations from 1 January 2007 after prior consultations with the Labour Foundation and the other relevant parties not represented in the Labour Foundation; and (iii) as a result, the Minister can grant upon request an exemption from an order declaring a collective agreement universally binding for a branch of the industry, if due to compelling arguments, the application of the provisions of the collective agreement in question cannot reasonably be required of certain businesses or subsectors; compelling arguments exist in particular if the specific characteristics of the business or subsector differ on essential points from those to which the universally binding agreement is to apply; it is also required that the parties applying for an exemption have themselves concluded a legally binding collective agreement, and that they are independent with respect to each other. The Committee further notes that according to the Government, if the collective agreement whose provisions are declared universally binding contains minimum provisions, the provisions of the other collective agreement will continue to be effective in so far as they are more favourable. If, however, the collective agreement whose provisions are declared universally binding contains more favourable conditions than the other collective agreement, the order declaring universally binding status will result in these more favourable conditions applying across the board for all employers and employees in the branch of the industry.

Protection against anti-union discrimination. In its previous comments the Committee had invited the Government to initiate discussions with the most representative employers’ and workers’ organizations with a view to identifying appropriate means for addressing the issue of the 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) to trade union members who are not trade union representatives. The Committee notes that the Government considers that there is no serious imminent reason to initiate the discussions and will therefore send a request to the most representative organizations of employers and workers represented in the Labour Foundation to assess the need for such discussions amongst the social partners. The Committee recalls that Article 1 of the Convention requires protection against all acts of anti-union discrimination for all “workers” with the only possible exceptions contained in Article 6 of the Convention. The Committee requests the Government to indicate the measures taken or contemplated in the framework that it intends to create, with a view to ensuring comprehensive protection against acts of anti-union discrimination, other than dismissal, to trade union members.

Comments of the FNV. The Committee takes note of the comments made by the Netherlands Trade Union Confederation (FNV) in a communication dated 29 August 2008 concerning the impact which an opinion published by the Netherlands Competition Authority (NMA) has had in practice, by discouraging negotiations with employers at the sectoral level, on the terms and conditions of contract labour (performed by individuals who do not necessarily work under the strict authority of the employer and who may have more than one workplace). The Committee observes that the FNV refers to serious matters and recalls that Article 4 of the Convention establishes the principle of free and voluntary collective bargaining and the autonomy of the bargaining parties. It requests the Government to provide detailed comments in this regard.