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the Government indicates that the proposed measure not to order the extension of some elements of collective agreements was revoked by a decree of 21 December 2004, following a central agreement with the organizations of social partners.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.