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

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

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. It further notes the Government’s reply to the 2017 observations from the FNV, CNV and the Trade Union Federation for Professionals (VCP).

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination other than dismissal. In its previous comments, the Committee requested the Government to provide detailed information on the complaints and procedures on anti-union discrimination in recruitment. The Committee has previously also repeatedly invited the Government to initiate discussions with the most representative employers’ and workers’ organizations with a view to broadening the protection of both trade union members and representatives in order to cover all acts of anti-union discrimination, including during employment.

The Committee notes the Government’s reference to the Equal Treatment Act, which regulates the prohibition of discrimination based on different grounds, including with respect to union members, since it prohibits direct and indirect discrimination based on political opinion or belief or any other ground. Concerning access to remedies, the Government recalls in general terms that there are different possibilities for citizens to file complaints based on the Equal Treatment Act. Although it indicates that is not aware of any recent decision concerning anti-union discrimination, the Government mentions the possibility of seizing: (i) the Institute for Human Rights, which is an independent national supervisory body (although its decisions are not legally binding, the Government points out that they are applied in most cases); and (ii) the Recruitment Code Complaints Committee of the Dutch Association for Personnel Management and Organization Development (NVP). The Committee also takes note of the action plan launched by the Government against labour market discrimination 2018–21, which consists of three pillars (supervision and enforcement, research and instruments, and knowledge and awareness), including the recruitment processes and covering all grounds of discrimination. The Committee finally notes that the Government states that it is open to starting a dialogue with the social partners as part of its regular consultations with the Labour Foundation to gain more insight into anti-union discrimination against union members and representatives. While taking note of the information provided by the Government, the Committee regrets that it has not received information on the concrete use of the mechanisms described by the Government. In order to enable it to assess whether adequate protection against acts of anti-union discrimination other than dismissal is provided in practice, the Committee requests the Government to provide detailed and updated information on any complaint of anti-union discrimination brought to the Institute for Human Rights, the NVP, the courts or other competent authorities. Noting the availability expressed by the Government in this respect, the Committee once again requests the Government to take the necessary action to initiate national dialogue with the most representative employers’ and workers’ organizations with a view to ensuring comprehensive protection of both trade union members and representatives against all acts of anti-union discrimination, including during employment (for example, in relation to transfer, relocation, demotion or deprivation or restriction of remuneration, social benefits or vocational training). The Committee requests the Government to provide information on any steps taken in this respect.

Article 4. Promotion of collective bargaining. Self-employed workers. In its previous comments, the Committee invited the Government to hold consultations with all the parties concerned with the aim of ensuring that all workers, including self-employed workers, may engage in free and voluntary collective bargaining. The Committee recalls that the opinion published by the Netherlands Competition Authority (NMA) discouraging collective bargaining on the terms and conditions of contract labour (that is, work performed by individuals who do not necessarily work under the strict authority of the employer and who may have more than one workplace) gave rise to judicial action: (i) the European Court of Justice (ECJ), at the request of the Court of Appeal of The Hague, issued a preliminary ruling on 4 December 2014 in the proceedings FNV Kunsten Informatie en Media (KIEM) v. the State of the Netherlands. The ECJ ruled that, under European Union law, it is only when self-employed service providers are “false self-employed” (in other words, service providers in a situation comparable to that of the respective employed workers), that a provision of a collective labour agreement, which sets minimum fees for those self-employed service providers, does not fall within the scope of Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) (prohibition of agreements restricting competition); and (ii) the Court of Appeal of The Hague subsequently issued a decision on 1 September 2015, pursuant to which competition law does not preclude a collective agreement from requiring an employer to apply the provisions of the collective agreement to self-employed substitutes (that is musicians substituting for members of an orchestra). The Committee also recalls that the Government pointed out that, according to the ECJ ruling, collective agreements for this group of “self-employed” persons (e.g. service providers in similar positions to employees) could be made on their behalf, but that this case had not yet led to amendments to the legislation or regulations. In addition, the Committee noted in its previous comments that, according to the FNV, the Netherlands Authority for Consumers and Markets (ACM) (the former NMA) still refused to more broadly acknowledge the collective bargaining rights of self-employed workers who work side-by-side with regular employees, denying both those workers and the employees a fair income and allowing or even promoting underbidding, and that the Ministry of Social Affairs followed the ACM without giving consideration to the effects of the ruling on collective bargaining rights.

The Committee notes the Government’s indication that after the KIEM case, the ACM published guidelines on price arrangements between self-employed workers in 2017 and a new version in November 2019. The latter provide further clarification on the scope offered by competition law to self-employed workers who work side-by-side with employees to agree on tariffs and other conditions. The Government also points out that the ACM will not impose any fines on arrangements between and with self-employed workers that aim at guaranteeing their subsistence level. The Government finally refers to the research carried out by the European Commission concerning the possibilities of collective bargaining for vulnerable self-employed and platform workers under EU competition law. While taking due note of the information provided by the Government, the Committee wishes to recall that the Convention only provides for exceptions to its personal scope of application in respect of the armed forces and the police (Article 5) and public servants engaged in the administration of the State (Article 6), and that it therefore applies to all other workers, including self-employed workers. The Committee also stresses that a limitation of the material scope of collective bargaining in respect of remuneration to the mere guarantee of subsistence conditions would be contrary to the principle of free and voluntary collective bargaining recognized by Article 4 of the Convention. In view of the above, the Committee once again invites the Government to hold consultations with the parties concerned to ensure that all workers covered by the Convention, irrespective of their contractual status, are authorized to participate in free and voluntary collective bargaining. Considering that such consultations are intended to enable the Government and the social partners concerned to identify the appropriate adjustments to be made to the collective bargaining mechanisms in order to facilitate their application to the various categories of self-employed workers, the Committee requests the Government to provide information on any progress achieved in this regard and on any legislative measures adopted or contemplated.

Articles 2 and 4. Protection against interference in the context of collective bargaining mechanisms. The Committee notes that in their observations the FNV and CNV allege that the collective bargaining model is undermined by allowing collective agreements signed by small unions or unions that do not offer sufficient guarantees of independence to be declared applicable to all workers. It also takes note of the Government’s reply to the 2017 observations of the FNV, CNV and VCP on the same issue. The Committee notes that, in their 2021 observations, the FNV and CNV reiterate that in the Netherlands employers and employers’ organizations can decide to conclude a collective labour agreement (CLA) with a small union that does not present sufficient guarantees of independence. They allege specifically that: (i) such CLAs apply to all (sometimes many thousands of) workers, including the members of more representative independent organizations objecting to such agreements; (ii) they are registered without any test and are declared generally binding by the Government; and (iii) if independent trade unions raise objections to such a declaration of binding effect, there are no valid criteria for carrying out an independence test.

The Committee notes in this respect the indications of the Government that: (i) collective bargaining parties are free to decide themselves with whom they negotiate and conclude a CLA, and hence, a collective labour agreement can also be concluded with a smaller union; (ii) according to section 2 of the Dutch Collective Labour Agreement Act, a party that wishes to conclude a CLA must be authorized to do so by its statutes. This is a formal requirement that is checked by the Government; (iii) CLAs must be registered with the Government and if the parties want a CLA to be generally binding, a request must be filed with the Government (according to the rules and conditions deriving from the Dutch Binding and Non-Binding Status of Provisions of Collective Labour Agreements Act, the Assessment framework for declaring collective labour agreement provisions generally binding, and the Decree on registration of collective labour agreements). The Government indicates that the assessment framework specifically refers to Article 2 of the Convention and that one of the conditions for declaring CLA provisions generally binding is that they must already apply to a significant majority of the persons working in the sector. Other parties may request dispensation from the process of declaring a CLA generally binding.

The Committee wishes to recall that, by virtue of Article 4 of the Convention, the right to collective bargaining rests with workers’ organizations and employers and their organizations and that the determination of the criteria for the designation of bargaining agents is a central issue. The Committee recalls in this respect that, even if different collective bargaining systems are compatible with the Convention, in particular those which grant the monopoly of collective bargaining to the most representative trade union organization, as well as those which recognize the right of individual trade unions in a bargaining unit to bargain on behalf of their own members, it has stressed the importance of the criteria of representativeness and independence in the event of a controversy concerning the determination of the bargaining agents. In this respect, the Committee has consistently stressed that unjustified refusal to recognize the most representative organizations may impair the promotion and development of free and voluntary collective bargaining within the meaning of the Convention. In this context, the Committee considers that a system that would allow a collective agreement to be applied to all workers in a bargaining unit despite of being opposed by the most representative trade unions concerned, would raise problems of compatibility with the principle of free and voluntary collective bargaining. The Committee also wishes to recall that the criterion of independence of workers’ organizations from the employer, or of a grouping of employers, is of key importance. The reality of independence is inseparable from the very existence of a trade union movement that must effectively represent the interests of the workers and is therefore essential to ensure the authenticity of the entire collective bargaining process. In view of the above, and since in the Dutch collective bargaining system collective agreements, unless otherwise stipulated, have an effect on the employment contracts of all employees in the companies concerned and not only of members of the signatory unions, the Committee requests the Government to provide detailed updated information on: (i) the mechanisms available to guarantee that the will of the most representative workers’ organizations is taken into account in the negotiation, conclusion and extension of collective agreements; (ii) the criteria applied in order to assess the independence of a union and any existing case law on the subject; and (iii) the number of collective agreements concluded and the number of those extended, where the signatory workers’ organization is not the most representative in the bargaining unit concerned.