Direct Request (CEACR) - adopted 2024, published 113rd ILC session (2025)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Netherlands (Ratification: 1950)

The Committee takes note of the joint observations of the Netherlands Trade Union Confederation (FNV) and the National Federation of Christian Trade Union (CNV) in a communication received on 27 August 2024, and also communicated with the Government’s report, as well as the Government’s reply to some of the allegations raised therein.

Article 3 of the Convention. Right of workers’ organizations to organize their activities in full freedom. In its previous comment, the Committee requested the Government to provide detailed information on the practical application of article 10 of the Dutch Posting of Workers by Intermediaries Act (Waadi), which prohibits temporary employment agencies from supplying workers to companies during strikes. In this respect, the Committee recalls the 2021 observations of the FNV, CNV and the Trade Union Federation of Professionals (VCP) according to which, the Inspectorate SZW (now, the Netherlands Labour Authority (NLA)) does not always have immediate access to the workplace to detect a violation of the strike-breakers ban and that after a violation has been established, it takes a year or longer before it issues a report. They also alleged that in legal proceedings against the offenders, the civil court imposes damages of no more than €5,000 per offender, which is not dissuasive. Moreover, the Committee noted that the three workers’ organizations denounced the so-called “intra concern exception” contained in the Waadi, which makes it possible for a subsidiary to fly in employees to serve as strike-breakers with impunity in the event of a strike. Finally, the Committee took note of the complaint lodged in July 2021 by the European Trade Union Confederation (ETUC), the FNV and the CNV before the European Committee of Social Rights (ECSR) in which they alleged, inter alia, that the manner in which Dutch higher and lower courts imposed restrictions on collective actions was not in conformity with the European Social Charter.

The Committee notes the Government’s indication that the NLA has legal authority to enter workplaces at all times, without permission, when this is necessary for the investigation. The Committee also notes the Government’s indication that the ECSR determined, in January 2024, that the Supreme Court’s assessment framework did not violate the right of workers’ and employers’ organizations to take collective action and that the application of the assessment framework by the lower courts was also in conformity with the European Social Charter. The Government further indicates that the recent court rulings confirm the effectiveness of the strike-breaking ban and refers in this respect to two court decisions: in the first one, the court ruled that supplying workers to perform the tasks of striking workers, whether or not they were agency workers, was prohibited and in the second, the court awarded €15,000 in non-material damages for the violation of article 10 Waadi.

The Committee notes, however, that according to the most recent FNV and CNV observations, the ECSR recognized that, in some instances, the exception of “social urgency” with regard to the strike-breaker ban was interpreted more broadly than what the Supreme Court intended in its assessment framework. In these circumstances, the FNV and CNV consider that there is a need to further elaborate and specify the framework on the concept of “social urgency” to give better guidance to the lower courts. However, they argue, a clarification of this framework is not easy to achieve as it is often difficult to obtain a judgement from the Supreme Court because higher courts do not allow appeals against preliminary decisions in strike cases, as the rapid nature of strikes outpaces the legal process. The Committee further notes the FNV and CNV indication that courts only recognize violations of the Convention when they reach a systemic level and that court rulings in themselves do not prevent the use of strike-breakers. Regarding the protection offered by article 10 of the Waadi, the Committee notes that the FNV and CNV reiterate that it does not fully safeguard the right to strike, as the ban only applies to third-party temporary workers. This allows employers to minimize damages associated with a strike by using “external” workers or engaging in “internal scabbing” (reassessing workers from other tasks). They refer to a recent case where the existing legislation failed to prevent strike breaking. In light of the above,the Committee requests the Government to provide its comments on the latest observations of by the FNV and the CNV. In addition, the Committee requests the Government to explore, in consultation with the social partners, all necessary measures to ensure that the right to strike is effectively protected in law and practice, and to provide information on all concrete steps agreed on and taken in this regard.

Finally, the Committee notes the FNV and CNV allegation that the Government interferes with trade unions’ operations through the Mass Damage Settlement in Collective Action Act (WAMCA) and the Quality of Collection Services Act (WKI). The Committee notes the Government’s reply thereon and, in particular, the indication that the WAMCA is undergoing an independent academic evaluation and that the results of the comparative law research regarding public interest litigation are expected in spring 2025. The Committee requests the Government to provide information on the developments in this regard.