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Right to strike: ESC and points of view (no obstacles in advance)

Right to strike: ESC and points of view (no obstacles in advance)

No source for the right to strike can be found in Dutch legislation. It is based on the European Social Charter (ESC) from 1961, a treaty by the Council of Europe (of which 47 European countries are a member). The Netherlands ratified the ESC in 1980. The ESC contains safeguards for a number of social rights for workers, including the right of collective action (article 6). The ESC has direct effect in the Netherlands.

Workers’ right of collective action
Article 6 (4) ESC contains the right for employees and employers to take collective action, including the right to strike, in the event of differences of interest. It therefore involves a difference of interest between employers and employees.

On 19 June 2015 the Dutch Supreme Court ruled in the Amsta case (ECLI:NL:HR:2015:1687) that the requirements of the duty of notification and last resort are no longer independent criteria for the lawfulness of a work stoppage or factory sit-in. Until recently, the requirement applied, by way of preliminary question, that there had to be deadlock in the consultations between employees and employers, or CLA parties. As long as this was not the case, a collective action was premature and therefore unlawful. Part of this (old) ground rule was that the collective action had to be announced in advance by the employees or trade unions.

From ground rules to points of view
The Amsta case mentioned above and the Enerco case of 31 October 2014 (ECLI:NL:HR:2014:3077) provide the contours of the new degree of discretion in assessing the Dutch right to strike. For a collective action, including a strike, there are no conditions for permissibility that apply, but exclusively points of view in assessing whether the action is unlawful. Limitation or prohibition of collective action can only take place by way of article G ESC.

Articles 6 (4) and G ESC
If there is a collective conflict of interest between the employer and employees, the employer and third parties must accept the inconvenience or damage experienced as a result of this. A condition is that the collective action by the employees or trade unions must be able to reasonably contribute to the effective exercise of the right of collective bargaining on employment terms. This could also include the declaration of the unloading of a ship in the port as contaminated (Enerco), brief work stoppages and factory sit-ins (Amsta) and the limited performance of work (ambulances: not or limited statuses).

When is a collective action lawful or unlawful?
If the organizers of a collective action demonstrate that the action can reasonably contribute to effective exercise of the right of collective bargaining between employers and employees (article 6 (4) ESC), there is a case of lawful exercise of the fundamental social right of collective action. The employer or third party that demands that the exercise of the right of collective action will be limited or excluded in the concrete case must demonstrate that this limitation or exclusion is justified according to the criteria of article G ESC. This last is only the case if the limitations imposed on the right of collective action are urgently necessary from the perspective of society.

What circumstances are relevant if it must be assessed whether a collective action is permissible in a concrete case?
According to the Supreme Court, these include:

  • the nature and duration of the action,
  • the relationship between the action and the goal it aims to achieve,
  • the damage consequently caused to the interests of the employer or third parties, and
  • the nature of these interests and this damage.

In this context, significance (and under certain circumstances even decisive significance) can be given to the answer to the question of whether the ground rules have been observed (duty of notification and last remedy).

Collective action also concerns people who are particularly vulnerable.

Finally, the Supreme Court stated it was relevant whether the action also involved people who are particularly vulnerable. Mentioned in this context are young people, disabled people, the elderly and others requiring a special degree of care in the sense that the collective action detracts from the possibility of these people being cared for, as a result of which these people are exposed to the danger that their psychological or physical health could be damaged.

The Supreme Court said in so many words that the collective action in such a situation must readily be designated as unlawful on grounds of article G ESC.

In other words, this involves not only ‘patients’, but also ‘people who are particularly vulnerable, such as young people, disabled people, the elderly and others who require a special degree of care.’ Beyond this, not only dangers to physical health play a role, but also dangers to psychological health.

Amsta case
In the dispute concerning healthcare institution Amsta, various employees gave statements that patients, including dementia patients, had to endure anxiety because of the shouting and banging on windows and doors by their caregivers (and third parties). It seems plausible from this that vulnerable, demented elderly people were exposed to the danger that their psychological health could be damaged. This will have to be determined by the court of referral (Appeal Court of The Hague) on the basis of the criteria and points of view indicated by the Supreme Court.

PostNL case
On 20 July the judge in interim relief proceedings of the District Court of Midden-Nederland (ECLI:NL:RBMNE:2015:5373) ruled that the independent package couriers (subcontractors) are not employees. Self-employed individuals cannot, in principle, invoke article 6 (4) ESC. The situation could be different if there were a case of pseudo self-employment. To the extent this might be the case here, the judge ruled that the requirement of article 6 (4) ESC was not satisfied. There was no collective action that could reasonably contribute to the effective exercise of the right of collective bargaining.
The actions which workers were called on to take via WhatsApp messages and which resulted in blockades of various PostNL depots strongly resembled a ‘flash mob’ over which there was little or no control. There are no connecting factors, according to the judge, that indicate that the goal of the actions was to reach an effective manner of collective bargaining.

Conclusion
The Supreme Court made it clear in the Enerco and Amsta cases that exercise of the right of collective action is not limited by ground rules which function as an obstacle in advance for the assessment of the lawfulness of a collective action/strike. The judge must take into consideration all relevant circumstances when assessing whether a collective action is lawful, including the aforementioned ground rules and points of view. It is only possible to limit the right of collective action of employees and trade unions if this is urgently necessary in order to protect the rights and liberties of others and preserve public order, national security, public health or public decency. In healthcare, where the situation virtually always involves people who are particularly vulnerable (physically or psychologically), the court will readily conclude that action is unlawful on grounds of article G ESC.

By Henk Hoving

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