Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (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.