Competition mounts between trade unions

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During 2002, the normal cooperation between Dutch trade union movement came under pressure from an increasing number of conflicts over both access to collective bargaining and unity in concluding collective agreements. Trade unions are increasingly seeking to enhance their own distinctive profiles, increasing rivalry between them, while the established unions are facing greater competition from newer independent organisations.

In the Netherlands, three national trade union federations have a seat on bipartite and tripartite consultative bodies at national level:

• the Federation of Dutch Trade Unions (Federatie Nederlandse Vakbeweging, FNV) (which has a general/social-democratic character), with 14 affiliated trade unions and a total membership of 1,226,000;

• the Christian Trade Union Federation (Christelijk Nationaal Vakverbond, CNV), with 11 affiliated trade unions and a total membership of 355,000; and

• Unie-Federation of Managerial and Professional Staff (Unie Middelbaar en Hoger Personeel, Unie MHP), to which are affiliated two individual trade unions and two groupings of unions, with a total membership of 196,000.

The Dutch trade union movement is characterised by a high level of internal coordination and mutual cooperation. However, the past year has seen an increase in the number of conflicts within the union camp. For example, in 2002, FNV and CNV came into conflict with Unie MHP following provocative remarks made by the chair of a Unie MHP trade union to the effect that FNV and CNV are 'arrogant', 'think along monopolistic lines' and are 'old-fashioned'. This resulted in Unie MHP being temporarily excluded from the national consulting body of the trade union federations and employers’ associations. Since the start of the 1990s, Unie MHP has 'profiled' itself by calling for more decentralisation and individual freedom to negotiate in establishing conditions of employment.

There are several trade unions that are not affiliated with any of the three federations and are not represented in the established consultative structures at national or sector level. These unions have a membership of some 125,000 employees; 6.5% of the total number of trade union members. While these unions do not appear to be expanding, it would seem that they have been concluding more collective agreements with employers in recent years (NL0112135F).

Freedom to negotiate and representativeness

The central government is authorised to appoint representative employee and employer organisations to sit on the Social and Economic Council (Sociaal-Economische Raad, SER), an important body that advises the government in the area of socio-economic policy. The government has far less of a say over which parties may engage in collective bargaining in the private sector. In this arena, the principles of freedom of association and of collective bargaining apply to a greater extent. However, the right of association for employees and employers alike does not imply the right to participate in collective bargaining with respect to particular companies or sectors. Nonetheless, it is clear from case law over the past 20 years that the exclusion from bargaining by employers of trade unions deemed to be representative is considered unlawful. However, even a high degree of unionisation does not oblige an employer or employers’ association to conclude a collective agreement. The law allows a collective agreement to be concluded with a minority trade union or only some of the unions representing the worker concerned. Strategically, dissent among the unions can thus provide employers with the upper hand in negotiations.

The Dutch government wields some influence in the bargaining arena, in that it is empowered to extend the provisions of a sector-wide collective agreement to non-unionised employers by making a declaration that it is generally binding, or to grant exemption from such an extension (NL0211104F). The Minister of Social Affairs and Employment is likely to comply with a request to make an agreement generally binding if it applies to at least 55%-60% of employment in the sector in question, based on the orgnisation level of contracting employers’ associations. Employee unionisation levels are not taken into consideration. Trade unions that are not party to the collective agreement can, however, raise objections. Such objections are brought before the parties to the collective agreement and the bipartite Labour Foundation (Stichting van de Arbeid, STAR), on which the employers’ associations are represented in addition to FNV, CNV and Unie MHP.

Employers can sidestep requests to make a sectoral agreement generally binding by concluding their own collective agreement at the level of the company or a smaller sector. The Minister automatically grants companies with their own collective agreement exemption from a sector-wide collective agreement for which generally binding status has been requested, unless contraindications apply. Exemption is not granted if it appears that the employees’ party is in fact a company-dominated 'yellow' union. Case law stemming from the 1990s finds that trade union organisations that are not affiliated to one of the three federations and are not party to the relevant sector-wide collective agreement may conclude legally valid company-level collective agreements.

Rivalry between established trade unions

In 2002, problems arose in the cooperation between trade unions both at national level and in terms of the conclusion of individual collective agreements. It is particularly striking that in 2002 one of the unions affiliated to Unie MHP signed collective agreements without consulting the other unions, such as the 2002 agreement for the childcare sector. FNV was outraged, as Unie MHP represents only several hundred executive staff members at day childcare centres, while together FNV and CNV represent 8,000 members in this sector. Following mediation between the parties at national level, the quarrel was resolved and the collective agreement was endorsed by both the other unions (NL0201177N). To prevent the two 'late signers' from losing face, an additional provision was included in the agreement, granting each employee an extra payment of EUR 135.

A second instance reflecting a lack of cohesion between the unions concerning collective agreements was the agreement for executive-level staff at the Philips electronics group. One of the Unie MHP unions agreed to a lower wage increase than FNV, CNV and - surprisingly - one of the other Unie MHP unions. Here too, after slightly better wage agreements had been negotiated, the other unions signed the deal to avoid exclusion (NL0204103F).

A third case in 2002 related to the collective agreement in the hotel, restaurant and catering sector. A Unie MHP union concluded an agreement with the Koninklijke Horeca Nederland employers’ association. Against the wishes of FNV and CNV, the Unie MHP union reached agreement that the agreed wage increase would apply only to employees paid exactly at the minimum pay level specified in the collective agreement. FNV's sectoral affiliate, Horecabond FNV, was furious about this behaviour: Unie MHP represents only 500 employees, while FNV boasts membership of 26,000 employees in the sector. Moreover, the timing of the agreement's conclusion was strategically difficult for FNV and CNV, because this undermined opportunities for industrial action on the part of employees in the sector in the interests of arriving at what they regarded a a decent collective agreement.

However, Unie MHP is not the only union which acts unilaterally. In 2001, for example, an agreement was reached independently between FNV and employers in the banking sector, while Unie MHP had an equally strong membership base in this sector. CNV also has differences of opinion with FNV, but the two unions comply more with the norm that agreements may be reached only if there is a common willingness among the unions involved to sign up.

Competition from new 'independent' unions

A second source of discord in the trade union arena is the rise of organisations that act independently of the three established federations. Numerous individual employers or smaller sector-specific associations have signed collective agreements with 'independent' trade unions, on which basis they have been able to achieve exemption from generally applicable sector-wide collective agreements. This has been the case for hotel, restaurant and catering wholesalers, video stores and several temporary employment agencies. The established unions are of the opinion that exemptions of this nature should be granted only based on compliance with representativeness criteria on the employee side, but are themselves at a disadvantage since their membership in the sectors concerned is relatively low.

Recently, the regional ABW trade union (with 8,000 members) has encouraged individual employers to sign collective and pension agreements with it. In so doing, ABW cooperated with the pensions insurer Axa. This offer could be attractive to some employers which have been hoping to withdraw from sectoral occupational pension fund for some time. However, questions have been raised as to the representativeness and independent status of this union. Its cooperative relationship with a commercial insurer certainly, for some commentators, puts its independence in doubt.

A similar issue relates to employee and staff associations established within specific companies for the purpose of concluding collective agreements. There are a number of companies in the Netherlands (eg Ikea and Holland Casino) with long-standing collective agreements, either now or in the past, that were originally concluded by staff associations of this nature with the approval of the Ministry of Social Affairs and Employment. A recent instance arose at a temporary employment agency at the end of 2002. This can be seen as the company's response to the impending general applicability of the collective agreement for the temporary employment sector and difficult negotiations with FNV.

Commentary

In considering the tensions within the trade union camp, it should not be forgotten that the established unions are involved in the realisation of more than 95% of all collective agreements. However, this does not detract from the fact that initiatives on the part of 'independent' trade unions and mutual rivalry require a prompt response from the established trade union movement. These factors give employers strategic negotiating power in an 'open collective agreement market'. The established unions will need to convince their members that they can better represent their interests than new (staff) unions. They also need to demonstrate to employers that they offer better representation and professionalism. Especially in cases where employee unionisation is low within a sector, they will certainly have to view requests for exemption from collective provisions in a serious light. Suspicions that they allow themselves to be led by a fear of 'outsiders' or pure self-interest (ie fear of missing out on compulsory contributions to funds and unions - NL0112135F), must be prevented. Safeguarding freedom of association and contract freedom provides the government with a good reason not to rule out contracts with independent/non-affiliated trade unions.

To a large extent, the conflicts that have arisen between the established trade unions come as a result of their avid 'profiling'- ie seeking to distinguish themselves from other unions. By depicting the policies of FNV and CNV as being outdated, rigid and too heavily based on the labour-capital antithesis, MHP attempts to attract young employees. Using vehicles such as the media for such profiling - which also applies, though in a different form, to FNV and CNV - is considered a positive strategic choice aimed at narrowing the gap with the membership. The Dutch trade union movement has succeeded in organising only a quarter of the workforce and the figure is even lower in the private sector. This places it in a vulnerable position when negotiating with employers and indeed the government. If they fail to attract new members and categories of employees, some political parties and forums for government policy may bring the established order of the Dutch model of consultation into question. (Frank Tros, HSI)