Collective Labour Agreement & Right to Strike

What we do

The collective arrangement of employment conditions is of great significance to Dutch employment law. The majority of Dutch employees are covered by a collective labour agreement (CLA). Consequently, many questions arise in practice regarding CLAs. Our practice group possesses in-depth expertise and extensive experience in this specialized field. As a proactive knowledge partner, we provide the organization with timely, up-to-date information, answer all questions, and assist the organization with careful advice. We also offer practical support where necessary and represent legal interests in cases that go to court. Examples include:

• Advice on the applicability of a collective labour agreement
• Explanation of the collective labor agreement and the obligations arising therefrom
• Alignment of the meaning of collective labour agreements in mergers and acquisitions
• Advisory services during consultations and negotiations with social partners
• Advice in the event of strikes and other collective actions
• Litigating regarding collective labor agreement or strike issues.

Questions regarding collective labor agreements and strike law? Contact us.

Collective labour agreement and strike law within employment law

agreement (CLA) and strike law constitute the collective part of employment law. While individual employment law focuses on the relationship between a single employer and a single employee, this concerns agreements and conflicts at the level of groups of employees, trade unions, and employers (or employer organizations). At MKB Juristen, lawyers and in-house counsel work together in mixed teams, enabling us to provide high-level assistance to both the international corporation dealing with multiple CLAs and the entrepreneur facing a generally binding CLA for the first time – from the factory to the baker on the corner.

Applicability of and binding to a collective labour agreement

The first question is almost always: does a collective labour agreement apply, and if so, who is bound by it? The Collective Labour Agreements Act regulates binding effect. An organised employer – a member of an employers' organisation that concluded the collective labour agreement – ​​is directly bound, as are employees who are members of a relevant trade union. For unorganised employees, the collective labour agreement takes effect via a so-called incorporation clause in the individual employment contract, whereby the collective labour agreement is declared applicable. We assess for you which (sectoral or company-specific) collective labour agreement applies, how broadly the scope is defined, and whether your company actually falls under it. In practice, this question of scope is often the real point of contention.

Declaration of general applicability (avv) and dispensation

Under the Act on the Declaration of Provisions of Collective Labour Agreements as Generally Binding and Non-Binding, the Minister can declare provisions of an industry-wide collective labour agreement generally binding. The consequence is far-reaching: even unorganized employers in the sector must apply the generally binding provisions, regardless of whether they were involved in the negotiations. For many SME entrepreneurs, this is the moment when collective labour law suddenly becomes concrete. We advise on the consequences of a generally binding declaration, on the possibility of applying for an exemption (for example, in the case of an equivalent company-specific collective labour agreement), and on mandatory contributions to social funds. If the scope of application turns out to your disadvantage, we assist you in objection and defense proceedings.

Explanation and continuation of collective labour agreement provisions

In principle, collective labour agreement (CLA) provisions are interpreted objectively for bound third parties: not the intention of the CLA parties, but the wording, read in the light of the entire text and any explanatory notes, is decisive (the so-called CLA standard). This makes the precise wording crucial regarding salary scales, allowances, job classification, and transitional arrangements. If a CLA expires without a new one being in place, acquired rights may remain part of the individual employment contract through continued effect. We advise employers and employees on interpretation, continued effect, and the scope to amend employment terms and conditions—whether unilaterally or otherwise—and litigate on these matters where necessary.

The right to strike: collective action and the test

The right to strike in the Netherlands is not regulated by a separate law, but is derived directly from Article 6, paragraph 4, of the European Social Charter (ESC). That article recognizes the right to collective action in disputes of interest, such as negotiations regarding a new collective labour agreement, wages, or a social plan. Since the Enerco (Supreme Court, 31 October 2014) and Amsta (Supreme Court, 19 June 2015) judgments, the former “rules of the game”—time notice and striking as a last resort—no longer apply as rigid preconditions, but as viewpoints within a single comprehensive assessment. A collective action that can reasonably contribute to effective collective bargaining is, in principle, lawful.

Restriction or prohibition is only possible if this is deemed urgently necessary under Article G of the European Social Charter. The judge then weighs all circumstances: the nature and duration of the action, the relationship between the action and the objective, the damage caused, and the interests of vulnerable third parties. The employer seeking to have a strike prohibited or restricted in summary proceedings bears the burden of proof. We assist both employers and companies facing a (announced) strike, blockade, or work-to-rule action, and advise on the legal scope, summary proceedings, and litigation strategy.

Duty to make peace, continued payment of wages and willing workers

A collective labour agreement (CLA) may contain a peace obligation: as long as the CLA is in effect, the trade unions involved may not take action regarding subjects covered by the CLA. During a lawful strike, the striking employees' entitlement to wages is, in principle, forfeited – “no work, no pay” – whereas those willing to work who wish to do so but are unable to due to the action occupy a different position. These questions regarding continued wage payment, the position of those willing to work, lockouts, and the deployment of replacement personnel are legally subtle and business-critical. We advise on the financial and organizational consequences and help you navigate a period of action without unnecessary legal risks.

Frequently asked questions about collective labour agreements & the right to strike

Does my company fall under a collective labour agreement if I am not a member of any?
Possibly. In the case of a generally binding declared sectoral collective labour agreement, you must apply the generally binding provisions, even without membership, as long as you fall within the scope. We will assess that scope for you.

Can I simply have an announced strike prohibited?
No. In principle, a strike is lawful under Article 6, paragraph 4 of the ESH. A prohibition or restriction is only possible if you demonstrate in summary proceedings that this is urgently necessary under Article G of the ESH – for example, due to disproportionate damage to third parties.

Must a strike always be announced in advance?
Notification is no longer an absolute requirement, but it remains an important consideration. The absence of timely notification may weigh against the union in the assessment.

As an entrepreneur, can I obtain an exemption from a collective labour agreement?
Sometimes yes, for example if you have your own, equivalent company collective labour agreement. We assess your chances and handle the exemption request or the defense against it.

Our approach for corporations and SMEs

Whether you are an international group with multiple collective labour agreements and a works council, or an entrepreneur dealing with a general binding declaration or a threatened strike for the first time: at MKB Juristen, you receive a mixed team of lawyers and in-house counsel that combines a legal perspective with practical feasibility. Where necessary, we collaborate with related areas of expertise within employment law, such as reorganization and employee participation, transfer of undertakings , and corporate employment law. Questions regarding collective labour agreement and strike law? Please contact us.