Jumbo versus FNV & CNV
The Midden-Nederland Subdistrict Court ruled on 13 April 2017 that the strikes at Jumbo’s distribution centres could continue. In interlocutory proceedings, Jumbo had demanded that trade unions FNV and CNV be forbidden from carrying out industrial action, with the aim of forcing personnel to return to work.
Jumbo and the trade unions have been negotiating for some time concerning a new CBA. The trade unions demand a 2.5% pay rise and a greater number of permanent jobs. Jumbo finds these demands excessively high and for this reason unilaterally implemented a 1.5% pay increase. When by-the-book actions had not resulted in a granting of their demands, the trade unions in turn proceeded to strike action.
In court, Jumbo took the standpoint that the actions of the trade unions were disproportionate and detrimental, as they were taking place during the highly important lead-up to Easter. It feared that the shelves in Jumbo supermarkets would go empty if the strikes continued in its distribution centres.
For their part, the trade unions argued that that their actions were in accordance with the right to collective action, as negotiations had failed and Jumbo had not considered their demands.
Basis for collective action
The right to strike is not laid down in Dutch law, but rather, is based on the European Social Charter, or ESC. The ESC is a human-rights convention amongst the member states of the Council of Europe and has direct effect in the Netherlands. It includes guarantees concerning a number of social rights for employees. One of the rights guaranteed is that to act collectively (“All workers and employers have the right to bargain collectively.”) set out in Art. 6 §4. By virtue of this article, collective actions, including striking, as well as by-the-book actions, slow-downs and such comical actions as flash mobs, are only permissible, if:
- there is a difference of interest between the employer and its employees;
- other, less drastic, means to attain the object envisaged must in reasonableness be considered to have been exhausted; and
- no action is undertaken that is in contradiction of arrangements already set out in CBAs.
The right of collective action is for the purpose of providing support to negotiations between employers and employees. A ‘difference of interest’ is understood to mean any dispute between employer and employee which can be resolved through collective bargaining, including through the establishment of a CBA, such as that in the Jumbo case.
The old rules of play: last-resort principle and obligation to give notice
Until recently, two important, compelling rules of procedure (rules of play) that had been developed in Dutch case law applied: the last-resort principle and the obligation to give notice. Both rules had to be satisfied for a collective action, e.g., a strike, to be lawful.
The last-resort principle means that a collective action can only be employed if all other available means have already been tried. Only after regular consultations and less far-reaching remedies have be exhausted, can the barricades be manned.
By virtue of the obligation to give notice, the party intending to carry on an action must give sufficient notice of it to the other party. The obligation to give notice can have the effect of exerting pressure to restart negotiations again during the period between the giving of notice and the start of the action. In addition, it ensures that the interests of third parties, such as customers and suppliers of the employer can be taken into account, and that the employer has an opportunity to prevent unnecessary trading/consequential loss.
The rules of play have become aspects
Two recent judgements by the Supreme Court, the Enerco judgement of 2014 and the Amsta judgement of 2015, have had the effect of relativizing these rules of play. According to the Supreme Court, a failure to observe compelling rules of procedure is no longer a prerequisite for the permissibility of a collective action. The rules of play are however still amongst the aspects taken into account in the judicial assessment of whether an action is lawful or not. Solely by virtue of Art. G ESC can the right to collective action be restricted. To be invoked, it must be required for the protection of the rights and freedoms of others or the maintaining/protecting of public order, national security, public health or decency.
In the event of a collective difference of interest between an employer and its employees, both the employer and the relevant third parties must accept that they are experiencing hindrance or loss as a result of it. The collective action must then in reasonableness be able to contribute to an effective exercise of the right to collective bargaining. Then, the action must, in principle, be deemed lawful.
If, in a concrete case, an employer or a third party wishes to restrict or exclude the right to collective action, they must be able to make plausible that such a restriction or exclusion is justified. Exclusion is solely justified where restriction of the right to collective action is urgently needed from a social perspective.
In assessing whether, in a concrete case, such a restriction or exclusion is urgently needed, according to the Supreme Court, the following aspects are relevant:
- the nature and duration of the action;
- the relationship between the action and the envisaged object to be attained through it;
- the loss which will be caused to the interests of the employer or third parties as a result of it; and
- the nature of that loss and those interests.
As mentioned above, in this connection, the answer to the question as to whether the last-resort principle and/or the obligation to give notice has been satisfied can become significant, or even the deciding factor.
Put succinctly, the right of collective action cannot be restricted by means of the rules of play employed to determine in advance whether a collective action is lawful. In their assessment of the lawfulness of a collective action, the courts must take into account all relevant aspects, including the last-resort principle and the obligation to give notice.
Restricting the right of collective action is solely possible in the event that it is required in connection with the protection of the rights and freedoms of others or the maintaining/protecting of public order, national security, public health or decency.
The detailed judgement with a statement of the grounds for the decision of the Midden-Nederland Subdistrict Court in the Jumbo case is expected on 19 April 2017.