Negotiating Only with the Works Council During Collective Bargaining Talks? Why That Isn’t Enough, According to the Supreme Court
In April 2024, the Supreme Court once again handed down an important ruling on the role of labor unions in reaching collective agreements. The case involved the airline TUI and the FNV union. The central question was: Can an employer refuse to negotiate terms and conditions of employment with a union if it is already making those agreements with the works council (OR)?
This ruling goes to the heart of collective labor law in the Netherlands. In principle, employers and employees are free to choose with whom they enter into agreements. Nevertheless, in this ruling, the Supreme Court sets clear limits on collective bargaining negotiations.
What happened?
TUI reached agreements on primary terms of employment (such as wages and working hours) for its cabin crew in consultation with the Works Council. These agreements were included in the employee handbook, which, through a clause, formed part of individual employment contracts.
The FNV union wanted to conduct collective bargaining negotiations on behalf of the cabin crew. It had taken the initiative to do so on several occasions and submitted petitions bearing hundreds of signatures from employees. Nevertheless, TUI systematically refuses to recognize the FNV as a negotiating partner. Only the Works Council was given a seat at the table.
The FNV took the matter to court and demanded recognition as a bargaining partner in order to conduct collective bargaining negotiations. The subdistrict court initially rejected that demand, but the court of appeals and, later, the Supreme Court ruled in favor of the FNV.
Can an employer ignore the union?
According to the Supreme Court, the answer to that question depends on all the circumstances of the case. In general, employers and employees are free to choose with whom they wish to negotiate. However, that freedom is not unlimited.
If a union is sufficiently representative and is systematically excluded, even though it wishes to negotiate on behalf of a relevant group of employees, this may be unlawful. This is certainly the case if the employer involves only the Works Council in agreements regarding primary terms of employment—as in the case of TUI—and refuses to negotiate with the union.
The role of the works council: complementary, not a substitute
The ruling makes it clear that a works council may not replace the union in negotiating collective bargaining agreements. Although the works council is a legally mandated employee representative body, it is much closer to the employer. Furthermore, the works council cannot organize collective actions or enforce compliance with agreements.
The Supreme Court emphasizes that employees have the right to be represented by an independent labor union. That independence is essential for ensuring a fair balance in negotiations over terms and conditions of employment.
Why did the FNV win this case?
The Supreme Court considered it important that FNV had demonstrable support from a large portion of the cabin crew. There were petitions, expressions of dissatisfaction with the works council structure, and a desire for union representation. Furthermore, FNV had extensive experience in the aviation sector, was knowledgeable, and had sufficient clout.
According to the judge, TUI had no compelling reason to exclude FNV. The argument that TUI feared higher wage demands or a “difficult” negotiating partner did not outweigh the fundamental right to collective bargaining.
What does this mean for employers?
Employers would be wise to be aware of the limits of their contractual freedom. Anyone who systematically refuses to allow a representative union to participate in collective bargaining negotiations may face legal problems—even if there is a well-functioning works council.
A works council can play a valuable role in negotiations on terms and conditions of employment, but should never be used to sideline labor unions. That undermines the system of collective bargaining.
What does this mean for employees?
Are you an employee who wants a union to represent your interests? If so, this ruling is good news. It strengthens your position as an employee to demand collective representation through a union that truly speaks on your behalf—especially if you and your colleagues request it collectively.
Conclusion
The Supreme Court’s ruling in the case between TUI and FNV shows that employers cannot simply refuse to recognize a union. Anyone who wishes to establish terms and conditions of employment without the union—but with the works council—runs a legal risk.
This blog was written by Stijn Blom, Esq., an employment law attorney at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists employers and employees on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight contracts and policies—with his practical and personalized approach, he helps employers and employees move forward. Want to learn more? Visit Stijn’s page.
Arbeidsadvocaat.nl is happy to assist you if you have any questions about collective bargaining agreements. Please feel free to contact us .
April 2025