No ban on strike-breakers among own staff at other branch

The prohibition against strike-breaking does not apply when you deploy your own staff from another branch to take over the work of striking employees. The prohibition under the Waadi focuses on hiring external workers through an intermediary (such as a temporary employment agency), not on transferring own employees within the same company or group. The Supreme Court confirmed this in the case between pilots' union VNV and EasyJet (ECLI:NL:HR:2019:1245). As an employer, you are therefore allowed to have your own people step in to mitigate the consequences of a strike, provided you act carefully and proportionately.

What is the ban on strike-breakers?

The prohibition against strike-breaking is a prohibition provision in the Waadi (Labour Allocation by Intermediaries Act). It prohibits the provision of labour to a company to take over the work of striking employees . The intention is clear: a strike must be able to produce results. If an employer were simply to have the work that has been laid down performed by hired workers, the strike would lose its significance as a means of pressure.

What the prohibition does not regulate is important. It does not prohibit you from deploying your own non-striking staff to mitigate the consequences of the strike. You may also use the downtime to hire external contractors to perform work other than that of the strikers, such as overdue maintenance or administration.

When is there a case of "placement at the disposal"?

The prohibition applies only to the provision of services within the meaning of the Waadi. According to case law, two characteristics apply to this:

• there is compensation involved in making the workforce available, and
• The person exercising management and supervision does so on the basis of an agreement other than an employment contract (think of secondment or temporary assignment via a third party).

If one of these elements is missing, there is no question of secondment, and the prohibition against strike-breaking does not apply. That is precisely why the use of your own personnel falls outside the prohibition: an employment contract, and it does not include a separate compensation for secondment.

Ban on strike-breakers does not apply to staff from another branch

Regarding the deployment of the striking branch's own staff, it was already clear: that is permitted. Non-striking staff may simply take over the work of the strikers. For a long time, however, there was uncertainty as to whether this also applied to staff at another branch of the same company. That question was answered with the VNV/EasyJet case.

The procedure of pilots' union VNV

In June 2016, EasyJet pilots affiliated with the pilots' union VNV went on strike. To limit the consequences, EasyJet brought in pilots from foreign bases. These pilots, like the Dutch ones, were employed by the same company (EasyJet Airline Co Ltd). As a result, scheduled flights largely continued as normal, and the strike had little effect. VNV initiated proceedings to prohibit EasyJet from deploying the foreign pilots, based on the prohibition against strike-breaking.

Judgment: no placement at the disposal, no prohibition

The judge ruled that the prohibition against strike-breaking did not apply here . After all, the Waadi requires the provision of staff, and this is not the case when employees from the same employer are deployed: there is no separate remuneration, and management and supervision are based on the existing employment contract. An employer is therefore permitted to engage employees from other branches to mitigate the consequences of a strike.

Also for separate companies within the same group

The prohibition also does not apply if the branches were legally separate enterprises, as long as they are maintained by the same entrepreneur or within the same group. The legislature deliberately included an exception for this in the Waadi. The Supreme Court confirmed this line in its ruling of July 19, 2019 (ECLI:NL:HR:2019:1245): the prohibition against strike-breaking applies to external workers employed through an intermediary, not to the use of one's own replacement personnel, even if that personnel has better employment conditions or is outside the conflict.

The downside: rules that do apply to the employer

The fact that the Waadi allows you leeway does not mean you have free rein. The right to strike is a fundamental right, and the court weighs the interests of both parties. In case law concerning strikes, for example, requirements are set regarding the announcement of an action, so that the employer can prepare and the safety and interests of third parties (such as passengers) remain safeguarded. The right to strike and the deployment of replacement personnel are therefore always kept in a mutual balance.

For you as an employer, this means that the way you respond is just as important as the question of whether you are allowed to respond. Excessive or provocative measures can still be blocked under other standards, even if the Waadi does not constitute a barrier.

What does this mean for you as an employer?

The ruling gives employers leeway, but acting prudently remains essential. A few practical points to consider:

• You are allowed to shift your own staff. You may have employees from another branch or location take over the work of strikers without violating the prohibition against strike-breaking.
• External agency workers as strike breakers: no. Hiring agency or seconded workers through an intermediary specifically to perform strike work does fall under the prohibition.
• Pay attention to good employer practices. Even if the Waadi does not constitute a barrier, a trade union may attempt to challenge your efforts using standards such as good employer practices or abuse of power. The tone and proportionality of your measures matter.
• Document agreements and instructions. Ensure that the deployment of replacement personnel aligns with their existing employment contract and position.
• Take notice and safety into account. A strike is usually announced in advance; use that time to carefully and proportionally set up your replacement plan.

Frequently asked questions about the ban on strike-breakers

Am I allowed to have my own staff take over the work during a strike?

Yes. The ban on strike-breaking does not prohibit that. Non-striking employees, including those from another branch of the same company, may take over the work of striking colleagues.

Am I allowed to hire temporary workers to cover a strike?

Not to do the work of the strikers. Providing temporary agency workers to a company to take over the work that has been stopped falls under the prohibition against strike-breaking. However, using temporary agency workers for work other than that of the strikers is permitted.

What exactly is "placement at the disposal"?

This is the case when a worker is supplied to another company for remuneration, whereby management and supervision are based on an agreement other than an employment contract. This is absent when using one's own personnel, meaning the prohibition does not apply.

Does the ban on strike-cutting also apply between branches of the same group?

No. If the establishments are maintained by the same entrepreneur or within the same group, the Waadi provides for an exception and the prohibition does not apply.

Does a strike need to be announced in advance?

In case law, a reasonable notice period is often required so that the employer can prepare and the safety and interests of third parties are not compromised. The precise period depends on the circumstances of the case; seek advice on this matter.

What is the legal basis for this?

The prohibition against strike-breaking is contained in the Waadi. Its application to own personnel was confirmed by the Supreme Court in the VNV/EasyJet case (ECLI:NL:HR:2019:1245, 19 July 2019).

Need advice on strikes and staffing?

If you want to cover the work of striking employees, a well-thought-out approach is invaluable. Trade unions rarely take action without good reason and, if the Waadi (Dutch Act on Temporary Employment Agencies) offers no grounds, they quickly resort to concepts such as good employership. Therefore, coordinate your plans in advance with an employment lawso that you are in a strong position. If you are unsure about the use of flex workers, also review the rules regarding temporary employment contracts.

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