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

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

The Committee notes the observations made by the National Federation of Christian Trade Unions (CNV) and the Netherlands Trade Union Confederation transmitted with the Government’s report and which refer to questions examined by the Committee, as well as the Government’s response thereto.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination other than dismissal. In its previous comments, the Committee noted that the legislation did not contain provisions specifically prohibiting acts of anti-union discrimination in the course of employment, but only provided for the employer’s obligation to be a good employer (section 7:611 of the Civil Code). It also noted the Government’s indication that anti-union discrimination acts could be denounced under the Equal Treatment Act to the Recruitment Code Complaints Committee of the Dutch Association for Personnel Management and Organization Development (NVP).

As a result, and in order to ensure that these various provisions and mechanisms were in practice sufficiently protective against acts of anti-union discrimination other than dismissal, the Committee requested 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. The Committee recalls that it has also repeatedly encouraged the Government to engage in dialogue with the most representative workers’ and employers’ organizations to strengthen protections for both trade union members and representatives, ensuring coverage of all forms of anti-union discrimination, including those occurring during employment.

The Committee notes the Government’s indication that no claim relating to anti-union discrimination has been received by the Institute for Human Rights or the national courts, and no complaint on this issue has been submitted to the NVP since the last report. The Committee also takes note of the renewal of the Government’s action plan against labour market discrimination for the 2022–25 period. The Government indicates that this plan enables the Netherlands Labour Authority to monitor companies’ and organizations’ adherence to labour regulations and impose fines for violations, although no complaint on anti-union discrimination has been reported so far. The Committee finally notes the Government’s indication that it has engaged with the social partners on anti-union discrimination during its regular 2023 consultations with the Labour Foundation and its intention to continue this dialogue in the second half of 2024.

The Committee notes that the Netherlands Trade Union Confederation (FNV) and the National Federation of Christian Trade Unions (CNV) allege that: (i) invoking the obligation to be a good employer is too vague to be effective and the burden of proof is placed entirely on the employee; (ii) while work council members are protected under national law against disadvantage, members of a trade union are not; (iii) since the Dutch Equal Treatment Act narrowly defines discrimination grounds, excluding anti-union discrimination, the Institute for Human Rights lacks authority to hear anti-union discrimination cases, and, therefore, the absence of action before this body is not surprising; and (iv) although article 7:670 of the Dutch Civil Code prohibits employers from terminating employment solely due to union membership or participation, this protection does not cover temporary workers, who may face non-renewal without explanation.

The Committee notes the Government’s reply under the Collective Bargaining Convention, 1981 (No. 154), indicating that the Equal Treatment Act 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.

The Committee takes note of these different elements. It observes both the absence of specific provisions explicitly prohibiting anti-union acts in the course of employment and the absence, since the last report of the Government of any complaint alleging anti-union discrimination before the different bodies signalled by the Government as competent for receiving and processing such complaints. The Committee stresses in this respect that the general nature of the provisions cited by the Government, which do not refer specifically to anti-union discrimination, may constitute an obstacle to the lodging of complaints in this area.

In light of the above, and emphasizing the need to adopt specific legislative provisions in relation to anti-union discrimination (see the 2012 General Survey on the fundamental Conventions, paragraph 174), the Committee requests the Government to take, in consultation with the representative social partners, the necessary measures to adopt specific provisions that, as it is already the case for anti-union dismissal, explicitly prohibit anti-union discrimination in the course of employment, providing for effective procedures and dissuasive sanctions. The Committee further requests the Government to provide its comments on the FNV and CNV allegations that temporary workers would not be adequately protected against the non-renewal of contracts based on anti-union grounds.

Article 4. Self-employed workers and the use of machinery and procedures to facilitate and promote collective bargaining. The Committee recalls that it has been examining the restrictions placed on the right to collective bargaining of self-employed workers as a result of decisions of the Netherlands Authority for Consumers and Markets (ACM). In its last comment, the Committee took note of the ACM’s 2017 and 2019 guidelines, on price arrangements between self-employed workers which recognized the right to collective bargaining to certain limited categories of self-employed workers (those who work side-by-side with employees). The Committee also noted that the ACM would not impose fines in respect of arrangements between and with self-employed workers aimed at guaranteeing their subsistence level.

The Committee thus recalled that: (i) 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; and (ii) 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. On that basis the Committee invited 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.

The Committee notes with interest the Government’s indication that in February 2023, the ACM published a revision of its guidelines on price arrangements, now allowing self-employed workers in the Netherlands to bargain under the full scope of the 2022 European Commission Guidelines on applying the European Union competition law to collective agreements regarding the working conditions of solo self-employed persons. The Government also points out that these European guidelines, which outline how self-employed workers can engage in collectively bargaining without violating EU competition rules, are directly applicable to Dutch national law, as competition law is primarily regulated at the European level. In this respect, the Committee takes note of the FNV and CNV’s observation that trade unions have not yet experienced the practical application of the ACM guidelines. The Committee notes that the Government also indicates that three seats on the Dutch socio-economic Council (SER) have been allocated to representatives of, and experts on, self-employed workers. Recalling its previous comments concerning the personal and material scope of collective bargaining under the Convention and while welcoming the information provided, the Committee invites the Government to: (i) promote dialogue between all the parties concerned in order to foster the development of collective bargaining mechanisms for the various categories of self-employed persons and provide information in this respect;(ii)provide detailed information on the number and content of collective agreements concluded involving self-employed workers, as a result of the new ACM guidelines.

Articles 2 and 4. Protection against interference in the context of collective bargaining mechanisms. In response to concerns raised by several trade unions that small unions or those lacking sufficient independence were signing collective agreements which applied to all workers pursuant to the Dutch collective bargaining system, the Committee previously requested the Government to provide 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.

The Committee notes that, in their 2024 observation, the FNV and CNV: (i) highlight the lack of information provided by the Government with respect to the indicators used in the country to establish the representativeness and independence of trade unions ; (ii) refer to a 26 April 2024 Supreme Court ruling, in which the Court, based in particular on the representativeness, of the FNV, did consider that a company was obliged to negotiate with the FNV rather than with a work council, and (iii) reiterate that, despite this ruling, since the Dutch legislation does not impose representativeness and independence requirements on unions seeking to conclude collective labour agreements (CLAs), employers can bypass unions that can provide the most counterbalance, therefore undermining the authenticity and effectiveness of the entire bargaining process.

The Committee notes that the Government: (i) reiterates that the only legal requirement imposed to the parties for the registration of CLAs is that they must be authorized to conclude such agreements under their statutes; (ii) indicates that it is currently engaging in discussions with the social partners about the CLA-system, including topics such as the principle of independence and the collective agreement coverage in the Dutch system; and (iii) it is studying the verdict of the Supreme Court ruling mentioned by the FNV and CNV.

The Committee notes that the information provided by the Government and by the trade union confederations confirms the absence in the legislation of criteria of representativeness and independence in order to determine, in a context of trade union pluralism, the trade union organizations entitled to sign collective agreements (which, according to Dutch law, apply to all the workers in the bargaining unit). The Committee notes that the Supreme Court decision cited by FNV and CNV relies on the representativeness of a trade union organization to determine its right to demand to enter into negotiations with an employer. The Committee notes however that it has not received any information concerning any court decisions setting a certain representativeness threshold in order for a union to be able to conclude a collective agreement. In this respect, the Committee reiterates that it 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 recognized by the Convention. Taking due note of the Government’s indication of ongoing consultations with the social partners concerning the collective bargaining system in the country, the Committee requests the Government to take the necessary measures, in consultation with the social partners, to introduce representativeness and independence requirements for the signing of collective agreements in situations where there are several trade union organizations within the same bargaining unit. The Committee requests the Government to provide information on any progress in this respect. In light of the aforementioned Supreme Court ruling, the Committee further requests the Government to provide information on the possibility under the Dutch system to engage in collective bargaining with work councils rather than with trade unions.