Due to last month's strikes by the Dutch NS staff, many people have once again experienced how great the consequences of a work strike can be. A labour strike has major consequences for the employer. And even more strikes are expected in the coming period. FNV chairman Elzinga warns for a 'hot autumn' with strikes in various sectors.
Are strikes always allowed? In this article we list the conditions at a glance.
The right to strike
The right to strike results from Article 6, paragraph 4 of the European Social Charter (ESH). This provision has direct effect in the Netherlands, which means that Dutch employees can invoke this article directly. According to the Dutch Supreme Court, whether a strike falls under the protection of the ESC is mainly determined by whether the action can reasonably contribute to the effective exercise of the right to collective bargaining. In that case, the action is in principle lawful.
Restrictions to strike
However, the right to strike is not unlimited. A strike can be prohibited or limited by the court if this is urgently necessary from a social point of view in the specific case.
In determining whether a strike should be prohibited or limited by the court, all circumstances of the case are important. A judge will look at, among other things, the scope of the action and the damage that can potentially be caused by the strike. Other important topics are whether the strike was announced on time and whether the strike is a last resort or if lighter means are also available.
According to the Supreme Court, a strike must be regarded as illegal if the strike affects vulnerable people , such as young people, the disabled, the elderly and others who require special care and when the action could endanger the mental or physical health of these persons.
There is a collective agreement in which Dutch trade unions agree not to strike. The agreement is that during the period of these collective terms of this specific agreement are active, there will be no strike. This restriction on the right to strike is called the 'duty of peace'.
Examples of actions that were banned
It accurs that an action is prohibited by the judge. For example, a planned strike by ground staff at Schiphol in 2016 could not take place due to the expected peak crowds during the holiday period. The employer had pointed out the vulnerability of the airport in terms of security and the need to prevent additional security risks. This was cause to set in place a restriction of the right to strike, because it was socially necessary.
In another example from 2019, the Amsterdam security officers were banned from striking during King's Day because the impact on street safety and public order would be too great.
The above examples illustrate that security risks can be an important argument for banning a strike.
What to do as an employer?
The right to strike is expansive, but an employer can always try to have a strike prohibited through the Dutch courts. The dismissal of striking employees because of the refusal of work is in no case allowed. However, the employer is not obliged to continue to pay the wages of striking employees.
More strikes to be expected?
Partly due to the success of the NS strike and the rising inflation, it can be expected that the unions will more often encourage collective actions in order to force a larger wage increase. It can be assessed on a case-by-case basis whether the action is lawful.
Do you have any questions about the right to strike? Please contact Chris Nekeman or Ester Damen.
