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The limited number of strikes in the Netherlands goes hand in hand with a relatively high number of court cases, as indicated by this feature, which examines statistics on strikes in 2001 and relevant case law in 2001 and the first half of 2002. In August 2002, the Council of Europe criticised the high level of court intervention in strikes in the Netherlands.
The Netherlands has traditionally had a low level of industrial action, and this generally continued in 2001, according to figures published by Central Statistical Office (Centraal Bureau voor de Statistiek, CBS). According to these statistics:
The limited number of strikes in the Netherlands, in comparison with the European average, goes hand in hand with a remarkably high occurrence of court cases (NL9804170F). There were numerous such cases in 2001 and 2002, and the main ones are summarised below.
On 20 March 2001, the president of the Zutphen court declared a strike called by rank-and-file 'personnel collectives' at Dutch Railways (Nederlandse Spoorwegen, NS) to be unlawful (JAR 2001/65). The court considered the actions premature and the consequences too grave for travellers. However, on 31 March 2001, the president of the Utrecht court ruled a strike at NS called by the Trade Union for Engine Drivers and Conductors (Vakvereinging voor Machinisten en Conducteurs, VVMC) to be lawful (JAR 2001/78). Negotiations with NS had reached a complete deadlock and the consequences for travellers were not considered disproportionate, given the restricted duration of the proposed industrial action (see NL0102125F, NL0104128N and NL0104130N for details on 2001's rail strikes).
A strike at the container transhipment company ECT (NL0106134N) was also permitted by the Rotterdam court at the end of May 2001, since negotiations had reached a stalemate (JAR 2001/108). Attempts undertaken by the organisers of a trade fair to prevent intended industrial action among railway personnel were thrown out by the president of the Amsterdam court in April 2001 (JAR 2001/106). In this case, the Federation of Technology Industries (Federatie Van Technologiebranches, FHI) had sought to impose an attachment on the accounts of the trade union involved, the Allied Unions (FNV Bondgenoten) affiliated to the Dutch Trade Union Federation (Federatie Nederlandse Vakbeweging, FNV), but this was lifted by the courts.
On 14 January 2002, the president of the Utrecht court ruled that FNV Bondgenoten’s call on employees of a pharmacy chain to attend a court session at which the unions were to demand compliance with the applicable collective agreement was not unlawful (JAR 2002/42). The employer had requested the court to declare any such form of collective industrial action unlawful.
On 11 April 2002, the Utrecht court ruled that industrial action in the public transport sector organised by FNV Bondgenoten and CNV Bedrijvenbond. affiliated to the Christian Trade Union Federation (Christelijk Nationaal Vakverbond, CNV), was not unlawful (JAR 2002/97). This related to an exceptional form of collective action: workers granted two days of free public transport. In 1983, the court was requested to pass judgment on this form of industrial action; at the time, the court ruled in favour of the employers.
On 1 May 2002, the organisers of the trade fair at the centre of the dispute in 2001 (see above) demanded compensation for damages from FNV Bondgenoten. The number of people who visited the trade fair was thought to be 30% lower than normal because of the railway strikes organised by the union. The president of the Utrecht court rejected the demand, stating that damages of a few hundred thousand euros are considered to be within the limits of normal business risk (JAR 2002/132). Moreover, the case related to economic damage, which is not considered socially unacceptable.
At the end of August 2002, the Council of Europe concluded that courts in the Netherlands are too quick to ban strikes. This came in response to intervention in two conflicts in the 1990s. In 1995, bus drivers took strike action for several weeks in opposition to the introduction of more flexible duty rosters, and the courts banned industrial action during rush-hour periods. The unions submitted an unsuccessful appeal to a higher court to rule against this ban. In 1997, a wildcat strike took place at the Douwe Egberts food firm, which the unions then made official. The company wanted to hive off distribution operations and was not prepared to make any promises to the employees about their jobs. A court ruled that the strike was premature because negotiations had not yet been concluded.
Earlier, in 1994, the Council of Europe had informed the Netherlands that strikes may be banned only in exceptional cases. This came in response to a ban against strikes at a hospital following claims submitted by an organisation representing the patients.
One of the key issues in the industrial action on the NS railway system in 2001 was that the behaviour of a relatively small group - in this case engine drivers and conductors - could have significant consequences for the employer and society at large. A recent case has again highlighted this issue.
On 27 July 2002, ground engineers at Amsterdam's Schiphol airport took spontaneous industrial action, which resulted in significant delays and 16,000 stranded passengers. The conflict centred around demands for a significant wage increase. At the beginning of September 2002, the KLM airline, the workers' employer, demanded that damages of EUR 2,000 should be paid by each striker, an unprecedented step in Dutch labour relations. If the engineers were unwilling to pay this amount, KLM expressed its intention to take the matter to court and demand even higher compensation of EUR 6,000 per person. Although FNV Bondgenoten and CNV Bedrijvenbond did not support the strike, they labelled KLM’s intended steps unwise.
It is well know that strikes are traditionally uncommon in the Netherlands. Especially in the period after 1995, there have not been many major conflicts. It remains to be seen whether this will continue to be the case. The period of economic prosperity appears to have drawn to a close for the time being. The new centre-right government’s different policy intentions may serve to fuel the fire, and its new style of government signifies a break from the era of the 'polder model' characterised by compromise (NL0206103N).
The right to strike in the Netherlands is not regulated by law. This may, in part, offer an explanation for the relatively high number of court cases in relation to the number of strikes. A second explanation for the frequent recourse to the courts is rooted in the social response to the 'burden' imposed by strikes, especially if they take place in sectors with an important social role where there are direct consequences for third parties. Examples here include public transport, hospitals and, recently, KLM.
In the past, Dutch courts have given significant consideration to third-party interests in ruling on industrial action. In view of earlier case law, the unions’ choice to consider the interests of third parties by undertaking industrial action that spares the public (such as providing free public transport) is understandable. However, whether the Supreme Court upholds the Utrecht court’s April 2002 ruling that this form of action is permissible, remains to be seen. If this is not the case, the criticism expressed by the Council of Europe against the Dutch courts may be perceived as a form of support for the unions. (Robbert van het Kaar, HSI)