Netherlands

In 2019, a court, which had been petitioned by EasyJet over a collective agreement conflict with the company union, granted EasyJet’s request to impose a longer period of notification for strike action, including the nature, duration and time of the protest action. EasyJet then used this delay and information to organise 14 pilots from Belgium to replace the 15 Dutch pilots on strike and take over their flights. With such practices, EasyJet managed to avoid any flight cancellation and nip the pilots’ protest in the bud.

According to FNV, strike actions have often been restricted based on frivolous reasons, such as perceived safety risks, inconvenience for travellers, and possible drops in order from an important client.

For instance, a general strike in the public transport sector, which had been announced in due time, was limited by the court at the request of Schiphol Airport authorities, which was not even involved in the strike itself. For purported security reasons, the trade unions were obliged to organise a shuttle train service to the airport against the will of the train personnel. While the court added that this service would not harm the aim and effectiveness of the strike, these restrictions significantly reduced the intended impact of the strike.

For FNV, this not only constitutes a violation of article 6.4 of the European Social Charter, but also a violation of the core ILO Conventions on freedom of association.

FNV denounces the increasing trend to shift from sectoral agreements to company agreements that have the intent of minimising labour costs in return for employability. Companies often use the competitiveness and employability argument with their employees to incite them to accept lower conditions of work at the enterprise level.

FNV further denounces the practice by employers of circumventing collective bargaining with representative unions by negotiating directly with work councils instead. Such attempts have been seen in companies like Ryanair, Transavia, Jumbo Supermarkets, Gall&Gall, Action and Lidl supermarkets. According to FNV, collective bargaining in the Netherlands is eroding as a result.

According to the FNV, while Dutch labour law guarantees to employees protection against dismissal because of their membership with a trade union, the legislation does not protect members of a trade union who are temporary workers or workers with an on-call contract. In practice, companies frequently get rid of trade union members participating in activities for the benefit of FNV.

On numerous occasions Ryanair used threats and intimidation to force its Dutch workers to replace their colleagues on strike in other countries throughout 2018. The refusal of such temporary transfer was treated as gross misconduct, subject to warning, and in case of repeated refusal, with disciplinary dismissal.

Ryanair systematically prevented meaningful negotiations with trade unions by proposing unreasonable terms and conditions and blackmailing with a “take-it-or-leave-it” approach – for example, during negotiations of a redundancy scheme. FME (Employers’ organisation for the Metal and Electronics sector) dragged trade unions into a months-long CBA negotiation process, only to introduce 15 new demands at the concluding meeting. By adding demands that had never been discussed previously, employers’ organisations managed to thwart negotiations and durably affected the trust between the parties.

In 2018, several companies totally overlooked the process of collective bargaining and decided to negotiated directly with employees. Jumbo Supermarkets and Gall & Gall bypassed negotiations with trade unions and pushed for a company agreement signed by the workers’ council. The same tactics were tried by Lidl Supermarkets. Platforms such as Deliveroo, Helpling or Temper persistently opposed any collective negotiations and pushed instead for unilateral regulation of workers’ terms and conditions in individual contracts.

The FNV deplored several incidents of discrimination and intimidation of trade union members that occurred in 2018. In Jumbo Supermarkets an employee and an FNV-shop steward got into a fight. Such conduct may be sanctioned by dismissal on disciplinary grounds and an accepted practice is to sanction equally all involved. However, the management took this opportunity to dismiss only the trade union representative. In Deliveroo the management engaged all applicants except the only two applicants who were members of the FNV trade union. Furthermore, the management of Ambulance Netherlands systematically engaged in intimidation of trade union members, while the management of ISS Cleaners targeted every employee who was a trade union member with retaliatory action such as dismissal or transfer to another workplace.

The FNV reported that in 2018 the municipality of Hendrik-Ido-Ambacht qualified a strike as an “event”. This qualification implied the application of a different set of laws than the rules on a strike action. As a result, an FNV-affiliated trade union that intended to organise a strike action needed to ensure compliance with detailed rules on health and safety or face penalties. After a prolonged procedure and many exchanges with the municipality, the strike finally took place. However, FNV considers this type of abusive requalification as a potential obstacle to the effective exercise of the right to strike in the future.

A few years ago, an affiliate of the Netherlands Trade Union Confederation (FNV) initiated judicial proceedings against the government due to an opinion published by the Netherlands Competition Authority (NMA) discouraging collective bargaining on the terms and conditions of contract labour (that is, work performed by individuals who do not necessarily work under the strict authority of the employer and who may have more than one workplace). On 1 September 2015 the Court of Appeal of The Hague issued a decision, pursuant to which competition law does not preclude a collective agreement from requiring an employer to apply the provisions of the collective agreement to self-employed workers, in particular to apply certain (minimum) rates.
Despite this ruling the Netherlands Authority for Consumers and Markets (ACM, which replaces the NMA) still refuses to acknowledge more broadly the collective bargaining rights of self-employed workers who work side by side with regular employees, denying both those workers and the employees a fair income and allowing or even promoting underbidding. This position is in clear contravention with ILO standards, in particular ILO Convention no. 98. In this regard, the ILO has recently recalled to the Dutch government that the right to collective bargaining should also cover organisations representing self-employed workers.

The Netherlands Trade Union Confederation (FNV) has reported that in 2017 several employers deliberately circumvented collective bargaining with the representative unions and favoured the conclusion of agreements with work councils. This practice is in contravention of ILO Convention no. 98 and devoids collective bargaining and collective agreements of all legitimacy and credibility.

In February 2017 workers staged a strike at Recticel, a manufacturing company producing flexible foams, insulation, bedding and automotive. Later that year the management retaliated against strikers by giving end-of-year bonuses to workers who had not participated in the strike.
Retaliatory measures are not uncommon in the Netherlands. The Netherlands Trade Union Confederation (FNV) has reported that in November 2017, workers of Buigcentrale Steenbergen, a steel manufacture, organised a strike. After the protest, several workers who had participated in it observed changes in their work orders akin to a demotion.
FNV has also expressed concern regarding the increasing use of temporary workers to break strikes. While this practice is forbidden in the Netherlands, the FNV deplores the fact that no penal sanction (e.g., fine) is applied to employers who contravene the law. This is all the more worrying, as there is a lack of monitoring by the Labour Inspectorate. In practice, employers can easily prevent the consequences of a legitimate strike while seriously compromising workers’ right to strike.