Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations received on 31 August 2017 from the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV) and the Trade Union Federation for Professionals (VCP), referring to issues under examination by the Committee as well as to alleged acts of intimidation against union members; alleged acts of anti-union discrimination against workers working through agencies, on zero-hour or short fixed-term contracts or as dependent self-employed; and the alleged undermining of the FNV’s collective bargaining rights by allowing for collective agreements applicable to all workers to be concluded by less representative or yellow unions. The Committee requests the Government to provide its comments in this respect.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination other than dismissal. The Committee previously requested the Government to provide details on the complaints and procedures on anti-union discrimination in recruitment as well as on the outcome of the proceedings. Furthermore, noting the lack of information concerning the protection against acts of anti-union discrimination during employment (other than dismissal), the Committee had repeatedly invited the Government to initiate discussions with the most representative employers’ and workers’ organizations with a view to broadening the protection against acts of anti-union discrimination of both trade union members and representatives. The Committee notes with regret that the Government confines itself to stating that it abides by the previously mentioned means of protection and that there are no new developments. The Committee also notes the FNV’s indications that anti-union discrimination in recruitment is not separately monitored, and that the discussions with the social partners have not been initiated. In order to enable it to assess whether adequate protection against acts of anti-union discrimination in recruitment is provided in practice, the Committee requests the Government to supply detailed information on the number of complaints of anti-union discrimination brought to the Recruitment Code Complaints Committee of the Dutch Association for Personnel Management and Organization Development (NVP), to the courts or to other competent authorities, the average duration of the relevant proceedings and their outcome, as well as the types of remedies and sanctions imposed in such cases. The Committee further requests the Government to engage in a national dialogue with the most representative employers’ and workers’ organizations with a view to ensuring a comprehensive protection of both trade union members and representatives against all acts of anti-union discrimination, including during employment (such as transfer, relocation, demotion or deprivation or restriction of remuneration, social benefits or vocational training).

Article 4. Promotion of collective bargaining. The Committee had previously requested the Government to provide information on the outcome of the judicial process initiated by an FNV affiliate against the Government due to an 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). The Committee notes that 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 generally ruled that, under European Union law, it is only when self-employed service providers who are members of one of the contracting employees’ organizations and perform for an employer, under a works or service contract, the same activity as that employer’s employed workers, are “false self employed” (in other words, service providers in a situation comparable to that of those 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). The ECJ then ruled that it is for the national court to ascertain whether this is the case. The Committee notes that 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) as referred to in the specific case, and, in particular, to apply certain (minimum) rates.

The Committee notes that the Government states in this regard that: (i) competition law in the Netherlands provides for several exceptions to the cartel ban, one of which relates to collective labour agreements, provided that they are the result of negotiations between employers’ and employees’ organizations, and that they contribute directly to improving workers’ employment and working conditions; and (ii) the ECJ has ruled that this exception also applies to collective agreements for “bogus self-employed persons” (service providers in similar positions to employees), since, according to the Court, they do not fall within the concept of “entrepreneurs” under European competition law, even if they are genuine self-employed under national law. The Committee observes that the Government concludes from the ECJ ruling that collective agreements for this group of “self-employed” persons can be made on their behalf. On the other hand, the Committee notes the Government’s indication that this case has not yet led to amendments to legislation or regulations. Furthermore, the Committee notes from the FNV’s observations that its affiliate FNV-KIEM obtained, in its proceedings against the Government, a favourable ruling from the ECJ with regard to the collective bargaining rights for self-employed workers, and that, in that specific case, the trade union has been granted the right to negotiate tariffs for a large part of this group, namely those self-employed workers that work side by side with regular employees. The Committee notes however that, according to the FNV, the Netherlands Authority for Consumers and Markets (ACM) (former NMA) still refuses to more broadly acknowledge the collective bargaining rights of self-employed workers that 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 follows the ACM without giving consideration to the effects of the ruling on collective bargaining rights.

The Committee recalls that Article 4 establishes the principle of free and voluntary collective bargaining and the autonomy of the bargaining parties with respect to all workers and employers covered by the Convention. As regards the self-employed, the Committee recalls, in its 2012 General Survey on the fundamental Conventions, paragraph 209, that the right to collective bargaining should also cover organizations representing self-employed workers. The Committee is nevertheless aware that the mechanisms for collective bargaining applied in traditional workplace relationships may not be adapted to the specific circumstances and conditions in which the self-employed work. The Committee invites 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. Considering that such consultations will allow the Government and the social partners concerned to identify the appropriate adjustments to be introduced to the collective bargaining mechanisms so as to facilitate their application to self-employed workers, the Committee requests the Government to provide information on the progress achieved in this respect.