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

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

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.

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

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.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations submitted by the Netherlands Trade Union Confederation (FNV) in a communication received on 28 August 2014.

Article 1 of the Convention. Protection against acts of anti-union discrimination other than anti-union dismissal. The Committee had previously requested the Government to provide information on any progress made to ensure a comprehensive protection against acts of anti-union discrimination other than dismissal (already existing) of both trade union members and representatives (that is protection against prejudicial acts during employment such as transfer, relocation, demotion or deprivation or restriction of remuneration, social benefits or vocational training; and protection in recruitment). The Committee notes that the Government refers to the protection against anti-union discrimination in recruitment and selection afforded by: (i) a code of conduct, the Recruitment Code of the Dutch Association for Personnel Management and Organization Development (NVP), and the related complaints procedure, whereby an employee who has a complaint regarding a selection or recruitment procedure may refer to the NVP Recruitment Code’s Complaints Committee or can submit a request to court to claim compensation; (ii) the supervision by the Dutch Data Protection Agency of compliance with acts regulating the use of personal data such as the Data Protection Act; and (iii) the employer’s obligation to be a good employer (section 7:611 of the Civil Code). The Committee requests 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 absence of information concerning the protection against acts of anti-union discrimination during employment (other than dismissal), the Committee once again invites 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.

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 the FNV-affiliate FNV KIEM 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 Government indicates that preliminary rulings have been requested of the Court of Justice of the European Union, that the procedure is still ongoing and that no judgment has been pronounced. The Committee requests the Government to provide information in its next report on the outcome of the judicial process.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the Netherlands Trade Union Confederation (FNV) in a communication dated 30 August 2010.

Article 1 of the Convention. Protection against anti-union discrimination. In its previous observation, 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) of trade union members who are not trade union representatives. The Committee recalled 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 notes that the Government indicates in its report that the most representative employers’ and workers’ organizations will be approached on this issue and that these discussions are to be concluded by the end of 2010, after which the Government possibly – dependent upon the results of the consultation – will consider any further steps. The Committee requests the Government to provide information in its next report on any progress made to ensure a comprehensive protection against acts of anti-union discrimination.

Comments of the FNV. In its previous observation, the Committee had requested the Government to provide its reply on the comments made by the FNV in 2008 concerning the impact which an opinion published by the Netherlands Competition Authority (NMA) had had in practice, by discouraging negotiations with employers at the sectoral level, on the terms and conditions of contract labour (i.e. 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 Government indicates in its report that a collective labour agreement may contain provisions about the self-employed and that there have been no practical cases so far in which the NMA, or in second instance the court, has judged that there is a problem with such agreements containing provisions about the self-employed. The Committee also notes that the FNV recalls that in its 2007 opinion document, the NMA expressed the view that a collective labour agreement which contains provisions on contract labour should be nullified, since the contract worker is considered to be an undertaking pursuant to the competition law and that, as a result, employers have reacted with an unwillingness to renegotiate conditions of labour, especially in the performing arts sector. The FNV also indicates that its affiliate “FNV KIEM”, which represents workers in the performing arts sector, took the State to court, and that the case is still pending. Recalling that Article 4 of the Convention establishes the principle of free and voluntary collective bargaining and the autonomy of the bargaining parties, the Committee requests the Government to provide information in its next report on the outcome of this judicial process.

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

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.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report.

1. Extension of collective agreements. In its previous comments, the Committee had noted 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 to refuse the extension of collective agreements if they lead to a rise in wages or if they increase the legal minimal obligatory wage payment during sick leave. The Committee notes with satisfaction that, in its report, the Government indicates that the proposed measure not to order the extension of some elements of collective agreements was revoked by a decree of 21 December 2004, following a central agreement with the organizations of social partners.

2. Independence of trade unions. The Committee had noted 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 the most recent comments of the FNV acknowledging a relevant change of policy regarding this issue, but indicating its lack of ease with the dispensation policy because it consists essentially of a difficult and laborious case-by-case assessment of a collective labour agreement’s legitimacy on the basis of indications and suspicions with regard to the independence of the employees’ association party to that agreement. Furthermore, the FNV indicates that this independence being assumed, it is still unacceptable that the employer bound by such a company-level collective agreement could claim to be automatically exempted from the extension order (concerning the sectoral collective agreement) in respect to all his employees and without any test to ascertain whether the trade union which is the other party to that company-level agreement is, compared with those trade unions being party to that company-level agreement, sufficiently (relatively more) representative for the employees within that company-level agreement’s coverage (i.e. the total number of the company’s employees). The FNV maintains that this provokes dissidence and fragmentation, undermines sectoral collective bargaining and is therefore inconsistent with the aim of the public administrative instrument of declaring a (sectoral) collective agreement’s provision generally applicable. Noting that a survey conducted 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 had invited in its previous comments the Government to initiate discussions with the most representative employers’ and workers’ organizations with a view to identifying appropriate means for addressing the issue raised by the FNV and the CNV.

The Committee notes that in its report the Government indicates that, since 2003, there have been only a few situations in which there was discussion about the independence of a trade union involved in a collective agreement. In situations where there is a discussion about independence, the Ministry of Social Affairs and Employment can investigate the situation and involve the results of the investigation in the decision making about extension orders concerning the sectoral collective agreements and the exemption from an extension order. According to the Government, the possibility of an extension order supports the possibility of tailor-made collective agreements in subsectors or companies. Furthermore, according to the Government, it has been discussing the policy on exemption from extension orders with the Labour Foundation (in which central organizations of social partners are represented) since March 2006 and the central issue in this discussion has been that exemption in case of an own collective agreement will no longer be given automatically by the Government. The Government further indicates that a decision upon an exemption request is open to objection and therefore there must be a clear set of procedural rules for putting forward a request and the decision-making process. After the discussion with the Labour Foundation has come to an end (June or July 2006), the Government will assess whether adaptation of rules will or will not be necessary. The Committee requests the Government to communicate its assessment and intentions in this respect and hopes that the future solution will do away with any risk of anti-union interference.

3. Protection against anti-union discrimination. 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 noted that the Government referred to its previous report, in which it had provided information on the general constitutional and legislative provisions in force as well as case law in this respect; it also referred 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 notes the FNV’s observations that the Dutch Constitution does not have legal effect in respect of the private relationship. The Committee notes that the Government reiterates the information in its last report. The Committee invites 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.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the comments on the application of the Convention submitted by the Netherlands Trade Union Confederation (FNV) and requests the Government to send its observations thereon. Noting that these comments refer to questions raised in its 2004 observation, the Committee will examine these comments as well as other matters raised in its previous observation (see observation 2004, 75th Session) in the framework of the regular reporting cycle in 2006.

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

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.

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

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.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee recalls that in communications dated 18 November 1999 and 8 November 2000, the Netherlands Trade Unions Confederation (FNV) indicated that the Act on the Legal Status of Judicial Officials provided for trade union monopoly, in that it recognized the Netherlands Association for Administration of Justice (NVvR) as the only negotiating party allowed to take part in the consultation on terms of employment, and that all other organizations representing civil servants in the judiciary were thus denied the right to bargain collectively on behalf of their members. Furthermore, the FNV had indicated that its civil servants’ union ABVAKABO also had members in the judiciary, and that the monopoly position of the NVvR provided for by the law had prohibited the ABVAKABO from bargaining collectively on behalf of its members. The FNV had also indicated having made an effort to engage in informal dialogue with the Ministry of Justice, but that no progress had been made in this regard and that the relevant legislation had not been amended.

The Committee takes note of the Government’s report dated 11 December 2000, in which it indicates having reached an agreement on 28 November 2000 with the NVvR to the effect that, from now on, in addition to NVvR, other associations representing civil servants in the judicial sector may also take part in the consultative meetings concerning terms of employment. The Government also indicates that it will amend the Act on the Legal Status of Judicial Officials as soon as possible in conformity with the agreements made with the NVvR, and that should an association representing judicial officials request admission to the negotiations on terms of employment before the legislation had been amended, it would act in accordance with the intended amendment.

The Committee takes due note of this information. It requests the Government to keep it informed of progress made in amending the legislation.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the communications of the Netherlands Trade Union Confederation (FNV) dated 18 November 1999 and 8 November 2000 concerning the application of Conventions Nos. 98 and 154.

The Government states that it is discussing the matters raised by the FNV with that organization as well as with and the civil servants’ union ABVA/KABO and that it will keep the Committee informed of any progress achieved.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes that the Government's report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

... the Committee notes from the Government's report that a draft legislation has been presented to the Parliament, to the effect of amending article 670, paragraph 5, of the Civil Code and providing for a protection against dismissal on the grounds of trade union membership or activities. The Committee hopes that the present draft will provide sanctions, sufficiently dissuasive, so as to ensure the full application of Article 1 of the Convention (please refer to paragraphs 223 and 224 of the General Survey on freedom of association and collective bargaining, 1994). It asks the Government to keep it informed on the matter.

The Committee also recalls that it had asked the Government to indicate the manner in which workers' organizations are protected (in particular through dissuasive sanctions) against acts of interference by employers' organizations and vice versa, in accordance with Article 2 of the Convention. Given that the Government only refers to interference in the framework of collective bargaining, the Committee asks the Government to give more details on this issue.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report.

The Committee had previously considered in the context of the Jobseekers Opportunity Act (WIW) that recourse on a successive basis to pay schemes with a maximum hourly wage which, with a 32-hour working week, resulted in a total income of eight-ninths of the legal minimum wage, could raise problems and had therefore requested the Government to keep it informed in this regard.

The Committee notes with interest the Government's statement that recently the pay range of one of the programmes concerned has been extended and that the restrictions on the duration of the working week have been relaxed. Moreover, the Government has no intention of creating any new schemes in the near future.

The Committee requests the Government to send its comments on the recent communication of the FNV on the application of Conventions Nos. 98 and 154 dated 18 November 1999.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee takes note of the information provided by the Government in reply to the communication of the Netherlands Trade Union Confederation (FNV) concerning the Jobseeker Opportunity Act (WIW) which came into force on 1 January 1998.

In its communication, the FNV explained that the WIW aimed at providing access to the labour market to long-term unemployed and jobless young people by subsidizing their posts within enterprises and institutions. However, the FNV alleged that the subsidies were only granted on the condition that the workers concerned were not paid more than the legal minimum wage without taking into account the nature and the importance of the functions performed. The hourly wage for the WIW job during the first two years could not exceed the hourly minimum wage. In addition, the subsidy paid for the job was based on a 32-hour working week with the result that the total income of WIW workers would be 8/9ths of the legal minimum wage. If it was decided after two years to transform the job into a job of unlimited duration, it would be permitted to pay a maximum of 120 per cent of the legal minimum wage for the applicable 32-hour working week following a procedure to be defined in the legislation. The FNV believed that the law in question (WIW) was in contravention with the principle of free collective bargaining in terms of fixing wages and other working conditions.

For its part, the Government explained that the WIW formed an integral part of the entire range of measures taken in order to combat long-term unemployment effectively. It was expected that the scheme imagined would aim at the creation of 40,000 extra regular jobs which would be taken by former unemployed people. The Government specified that the WIW left the content of the labour agreement to the employees and employers imposing no restrictions in respect of the substance of collective bargaining agreements. Instead, the WIW determined the nature and the extent of the subsidized posts that could be offered by employers. In its latest communication, the Government added that on 12 June 1998 a collective labour agreement was concluded between the Association of Dutch Local Authorities and the trade unions representing the workers covered by the WIW. The new collective labour agreement was applicable to workers who would start working after 1 January 1999 as well as to workers who were, before its entry into force, employed under the Youth Work Guarantee Act or under other schemes regulated by the WIW. In addition, the collective agreement took into account work experience when integrating workers into its pay scales; it was also stipulated that former WIW workers might earn 120 per cent of the legal minimum wage as soon as they reached the age of 64 and that they were integrated into the collective labour agreement on the basis of their age from the age of 57 upwards. It was further agreed that the parties would examine the method of payment of workers falling into the WIW, considering the necessity, the desirability and the feasibility of introducing a pay system based on job evaluation; finally the parties aimed at setting up a pension scheme by 1 January 1998.

According to the facts brought to its knowledge and taking into account the collective agreement concluded between the Association of Dutch Local Authorities and the trade unions representing the workers covered by the WIW, the Committee is of the opinion that this situation is not incompatible with the Convention; however, it considers that recourse to such schemes on a successive basis could raise problems and therefore requests the Government to keep it informed in this regard.

Finally, the other issues addressed in the Committee's previous comments and concerning Articles 1 and 2 of the Convention are still pending and will be examined in the regular reporting cycle.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information provided by the Government in its report. It has received a communication by the Netherlands Trade Union Confederation (FNV) on the application of the Convention and asks the Government to make its comments in its next report.

Referring to its previous comments, the Committee notes from the Government's report that a draft legislation has been presented to the Parliament, to the effect of amending article 670, paragraph 5, of the Civil Code and providing for a protection against dismissal on the grounds of trade union membership or activities. The Committee hopes that the present draft will provide sanctions, sufficiently dissuasive, so as to ensure the full application of Article 1 of the Convention (please refer to paragraphs 223 and 224 of the General Survey on freedom of association and collective bargaining, 1994). It asks the Government to keep it informed on the matter.

The Committee also recalls that it had asked the Government to indicate the manner in which workers' organizations are protected (in particular through dissuasive sanctions) against acts of interference by employers' organizations and vice versa, in accordance with Article 2 of the Convention. Given that the Government only refers to interference in the framework of the collective bargaining, the Committee asks the Government to give more details on this issue.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes with interest the information provided in the Government's first report. It requests the Government to provide further information in its next report on the following point.

The Committee notes from the Government's report that there is no legislation specifically aimed at protecting workers from acts of anti-union discrimination, but that a number of legislative provisions protect workers from termination on unfair grounds, such as trade union membership and activities. It further notes that no specific regulations exist to protect workers' and employers' organizations against acts of interference by each other in their establishment, functioning and administration. The Government is requested to indicate the manner in which workers are protected against acts of discrimination other than dismissal (such as demotion, transfer, etc.) and the manner in which workers' organizations are protected against acts of interference by employers and employers' organizations, in accordance with Articles 1 and 2(2) of the Convention, including by indicating any relevant court judgements or labour inspectorate reports and any sanctions imposed in accordance with Article 3.