Case law governing strike activity reviewed

In 1997, as in previous years, there were very few strikes in the Netherlands. However, despite this, judges are quite often called upon in industrial disputes. An analysis of recent case law reveals that strikes are permitted only as a last resort and when the rights and interests of third parties are not prejudiced disproportionately.

Apart from Austria, the Netherlands had the lowest level of strikes amongst EU Member States in 1997. Figures from the Central Statistical Office (Centraal Bureau voor de Statistiek, CBS) show that in 1997, for every 1,000 employees, only one working day was lost because of strikes. The total number of days lost for 1997 was 15,000, approximately two and a half times the figure for the previous year (6,000 lost days). Remarkably, 11 of the 17 strikes counted by the CBS started as unofficial/wildcat strike s. However, trade unions were usually involved: they were party to the negotiations related to 13 of the strikes. In 1997, three-quarters of the strikes took place in the industrial sector. Disputes also arose in the transport, storage and communications sectors.

The general, long-term trend is that, compared with other EU countries, very few working days are lost through strikes in the Netherlands. Even in 1995, a year when massive strikes took place in the building and construction sectors, the figure for the Netherlands was only slightly above the EU average.

Trends in strike law

In the Netherlands, strike s are not regulated by legislation: the judges rule whether or not a strike is allowed. During the period after the Second World War, the idea of harmonious relations between employers and employees was predominant in Dutch industrial relations. Case law generally regarded strikes as unlawful, a tendency which culminated in 1960 with the "Panhonlibco judgment", when the Supreme Court ruled that, in principle, strikes should be considered unlawful, except in special circumstances.

In 1961, the Netherlands signed the European Social Charter (ESC) of the Council of Europe, which recognises the right to take industrial action (in article 6, paragraph 4). In the 1960s, the unions pressed for legislation because, in their view, the Supreme Court's 1960 ruling upset the balance of power between employers and employees. A proposed bill, however, never became law because it was not acceptable to either the employers or the unions.

In 1972, the president of the Utrecht court approached strikes in a different way from the Supreme Court 12 years before: strikes were, in principle, lawful, except in special circumstances.

The Netherlands officially ratified the ESC in 1980, but made an exception for civil servants. In 1986, the Supreme Court (called upon for the first time since 1960) ruled that the ESC had direct applicability in the Netherlands. Since then, no doubts remain on the existence of the right to strike.

High occurrence of court cases

Despite, or perhaps because of, the low number of strikes, employers call on the courts quite regularly with requests to ban strikes. For example, on 8 October 1997, the president of the Rotterdam court prohibited members of the Rotterdam docks labour pool works council from organising or supporting strikes (NL9710140N). On 24 November, at the request of European Combined Terminals, the president prohibited future blockades at a container terminal in the Rotterdam port (NL9711146N).

One of the most important legal grounds for prohibiting strikes is that not all the negotiation options have been exhausted. For example, on 26 February 1998, a strike at the distribution centre of Sara Lee/Douwe Egberts was prohibited for this reason. According to the court, it can be deduced from the wording of article 6, paragraph 4 of the ESC that strikes are allowed only as a last resort.

Another important (and extensively debated) issue concerns the extent to which the right to strike is restricted by the interests of third parties. Article 31 of the ESC stipulates restrictions to protect national interests and guarantees the continuation of essential services in the best interests of third parties.

In 1995, the unions organised strikes in the regional passenger transport sector to protest against the introduction of flexible working hours. Because the company concerned (Verenigd Streekvervoer Nederland, VSN) virtually held a monopoly, large numbers of passengers were seriously affected. During these strikes, the president of the Utrecht court banned strikes that started before 10.00 or ended after 15.00. The main effect of this ruling was that strikes were no longer permitted during the morning or afternoon rush hours. On 21 March 1997, the unions' appeal against this ruling was rejected by the Supreme Court. According to the Supreme Court, Article 31 of the ESC allows restrictions on the right to take industrial action if the interests of third parties stand to be damaged disproportionately (NL9712150F).

In some cases, the unions themselves initiate court proceedings, usually in the context of attempting to overrule a previous ruling prohibiting strikes made by a court of a lower instance. In October 1997, trade unions protested against an indirect restriction on the right to take industrial action. A shipyard in the northeastern part of the Netherlands paid its employees an annual bonus only if no strikes had taken place during that year. On 22 October 1997, the president of the Leeuwarden court ruled that this scheme violates the right to strike.

Unlawful strikes: consequences for the unions

In a few cases, trade unions have been the subject of claims resulting from damages caused by a strike. Such claims rarely succeed. Recently, on 12 December 1997, the Supreme Court rejected a demand for compensation made by a shareholder of a company that went bankrupt following a sit-down strike. Although the Supreme Court has never made a statement of principle regarding plant or office occupations, it seems to maintain that they are permitted only under exceptional circumstances.

Commentary

Although strikes are generally uncommon in the Netherlands, some sectors have a tradition of industrial conflict. This applies particularly to the ports of Rotterdam and Amsterdam (NL9705112F), but also to the building and construction sectors. Since the beginning of the 1980s, large-scale strikes have also been undertaken by civil servants and employees in the non-profit sector.

In itself, the right to strike has not been seriously questioned for some time. However, critics and legal experts alike have questioned the restrictions imposed by judges on the right to strike. It is not clear whether legal restrictions based on observations like "strikes are only permitted as a last resort" and "may not damage third-party interests" are in fact derived from the ESC.

Although the chances of the Netherlands developing into one of the EU's strike-prone countries are slim, the future will certainly not be quite as quiet. Strikes over pay might, for example, be triggered by shortages in the labour market. More importantly, labour unrest might accompany the reorganisation process in the public bus transport sector, the Dutch Railways and the Dutch postal service, or arise in sectors where work-related stress is a topical issue (NL9802163N), such as in the healthcare and educational sectors. (Robbert van het Kaar, HSI)