Workers' Representatives Convention, 1971 (No. 135) - Netherlands (Ratification: 1975)

Direct Request (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 2 of the Convention. Access of workers’ representatives to the workplace. The Committee had previously invited the Government to discuss the issue of access of trade union representatives to industrial premises, with the most representative workers’ and employers’ organizations, with a view to ensuring that, without impairing the efficient operation of the undertaking, access to the workplace is granted to workers’ representatives in so far as it is appropriate to enable them to carry out their representation function. The Committee notes the Government’s indication that in July 2013 the most representative workers’ and employers’ organizations (represented in the Labour Foundation) were consulted on compliance and enforcement of collective agreements, and that, in the process of implementation of the recommendations that resulted from this consultation, the Government will discuss with these organizations the issue of access of trade union representatives to industrial premises. The Committee notes that the FNV adds that access to premises in companies where the union has not yet a high number of members still constitutes a major problem, particularly in sectors with a large number of subcontractors and migrant workers, and hinders trade union work in terms of enforcement and compliance control of collective agreements; and that the Government is developing legislation that will allow it to share with the trade union information received through the public inspection service, which, while not addressing the issue of access, will improve the ability of unions to exert their influence. The Committee trusts that the discussions in this regard with the most representative workers’ and employers’ organizations, which the Government indicates are scheduled as a follow-up to the 2013 consultation, will be held in the near future, and requests the Government to report on the outcome.

Article 5. Coexistence of trade union representatives and elected representatives in the same undertaking. The Committee notes that the FNV denounces that the July 2013 amendment of the Works Councils Act put an end to the equality between trade union members and non-members as regards the procedure and requirements for nomination as eligible works’ council members. Prior to the amendment, all candidates, whether on the list of trade union candidates or on the list of independent candidates, needed to be supported by a number of workers and provide proof of such support. The new legislation allows any individual worker to nominate himself/herself without any proof of support, whereas the threshold for trade unions and members to submit a list remains high, thus undermining the position of the trade union. The Committee requests the Government to provide its comments in respect to the FNV’s observations.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the information contained in the Government’s report, in which it once again explains that provisions of collective labour agreements that “infringe on the employer’s territory” will not be declared compulsorily applicable as they may be unduly prejudicial to the legitimate interests of unorganized employers in the sector governed by the collective agreement. The Committee once again invites the Government to discuss the issue of access of trade union representatives to industrial premises with the most representative workers’ and employers’ organizations.

Direct Request (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) in a communication dated 25 November 2004. The Committee notes that these comments refer to a question raised in its 2004 direct request, and requests the Government to send its observations thereon.

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

The Committee takes note of the Government’s report which contains observations on the comments of the Netherlands Trade Union Confederation (FNV). The Committee 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) on the Government’s report.

The Committee notes that under the Review Framework for declaring collective agreements applicable, provisions which "infringe on the employer’s territory" (understood as both the territory on which the company is established as well as the communication and consultation structure within the company) are not eligible to be declared compulsorily applicable (such provisions include, for instance, access of certain organisations to industrial premises). The Committee takes note of this information and invites the Government to discuss the issue of access of trade union representatives to industrial premises with the most representative workers’ and employers’ organizations.

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

In its previous observation, the Committee requested the Government to send its response to the comments on the application of the Convention, dated 4 November 2002, made by the Netherlands Trade Union Confederation (FNV).

Noting that the Government has not yet sent a reply to this observation, the Committee observes that the FNV states the following. Within the framework of its policy, the Minister of Social Affairs and Employment categorically excludes to declare generally applicable the provisions of the collective agreements on trade union representation and facilities in the undertaking, despite being requested to do so by the parties to the agreements. The FNV is of the view that trade unions should be allowed adequate room for representation and communication at the workplace as long as the order and the operation of the undertaking are not disturbed. It considers that this results implicitly from the international standards on freedom of association. While it recognizes that these standards do not impose the adoption of statutory provisions to this end, the FNV states that it seems incompatible with freedom of association to deny an erga omnes effect to the provisions of the collective agreements concerned, on the grounds that such provisions, as the authorities put it, "infringe upon the employer’s territory".

The Committee invites the Government to discuss the matter with the most representative workers’ and employers’ organizations.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee notes the information provided in the Government’s report. The Committee notes with satisfaction that article 670, paragraph 5, of Book 7 of the Civil Code as amended by the Flexibility and Security Act (Bulletin of Acts and Decrees 1998, 300), now affords legal protection not only to members of works councils but also to trade union representatives and affiliates by prohibiting their dismissal for anti-union reasons.

The Committee notes the observation on the application of the Convention made by the Netherlands Trade Union Confederation (FNV) dated 4 November 2002 and requests the Government to send its comments in this respect. The Committee notes also that these comments refer also to Convention No. 98 and will be dealt with in the framework of the examination of its application.

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

See under Convention No. 98, as follows:

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 1995, published 82nd ILC session (1995)

The Committee notes the Government's report. With reference to its previous comments, the Committee notes the Government's statement that Bill No. 21479 to amend the legislation on dismissal and prohibiting dismissal for carrying out trade union activities is under discussion in the First Chamber.

The Committee would request the Government to send a copy of Bill No. 21479 along with its next report.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's report and the comments made by the Netherlands Trade Union Federation (FNV) regarding the protection and facilities that should be afforded to the workers' representatives referred to in Article 3 of the Convention.

The Committee notes that the Government repeats its previous statement that there is no obligation under the Convention, as is clear from Article 4, on States that have ratified it to provide protection and facilities to both the categories of workers' representatives defined in Article 3.

The FNV again observes that both the categories of workers' representatives referred to in Article 3 should receive the facilities and protection established in the Convention, and that Bill No. 21479 to amend the legislation on dismissal and prohibiting dismissal for carrying out trade union activities does not change the existing legislation which protects only members of works councils (established in accordance with the Act respecting enterprises with fewer than 35 workers).

The Committee notes Bill No. 21479 and asks the Government to inform it of the adoption of the Bill in its next report.

With regard to the FNV's comment, the Committee has already pointed out that, in the light of the wording of Article 4 of the Convention which permits a certain flexibility in the choice of workers' representatives, the present system does not infringe the requirements of the Convention. It recalls, however, that it is important to apply a reasonable criterion to ensure that workers' representatives in certain small enterprises are not denied the protection and facilities laid down in the Convention.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee takes note of the comments of the Confederation of Netherlands Trade Union Movement (FNV) and the Government's reply thereto concerning the granting of protection and facilities to both categories of workers' representatives mentioned in Article 3 of the Convention.

The FNV observes that only members of works councils (set up, by law, in firms employing at least 35 workers) are entitled to the legal protection and facilities referred to in the Convention and that even if collective agreements can include provision of such facilities and protection in small businesses having less than 35 employees, the agreements do not cover all enterprises and do not give full protection because they are limited in time. The FNV considers that both categories of employee representatives mentioned in Article 3 should receive the facilities and protection set out in the Convention; it regrets that the Government, which had previously agreed with this approach, has now changed its position. It adds that discussions are being held in the tripartite Labour Foundation regarding the possibility of issuing a recommendation to employers to afford broad coverage, but the FNV believes that any such recommendation would not be binding and would be no more than a guide-line for negotiations.

The Government points out that the Convention, in Article 3, defines two categories of workers' representatives which may benefit from the provisions of the Convention; the Convention does not oblige ratifying States to grant protection and facilities to both categories, as is clear from the terms of Article 4. It states that it has determined, by legislation, which type of workers' representatives should be entitled to the benefits of the Convention, namely members of works councils.

The Committee notes that the Convention permits a certain flexibility in the choice of workers' representatives to enjoy its provisions, subject to the special protection of trade union representatives set out in Article 5. Given the clear wording of Article 4, the Committee considers that the present system does not infringe the requirements of the Convention. However, the Committee draws the Government's attention to the fact that since certain workers' representatives in small enterprises risk having no coverage - either by legislation or collective agreements - a criterion of reasonableness should apply to ensure that they are not denied the protection and facilities provided for in the Convention.