Negotiating only with the Works Council during collective bargaining? Why that isn’t enough, according to the Supreme Court
In April 2024, the Supreme Court issued another important ruling on the role of labor unions in collective bargaining. The case involved the airline TUI and the labor union FNV. The central question was: Can an employer refuse to negotiate terms and conditions of employment with a labor union if it is already making such 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 decide 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 basic terms of employment (such as pay 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 claim, 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 from negotiations, 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 and conditions of employment—as in the case of TUI—and refuses to negotiate with the union.
The role of the works council: complementary, not substitutive
The ruling makes it clear that a works council cannot 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 action or enforce compliance with agreements.
The Supreme Court emphasizes that employees have the right to be represented by an independent trade union. That independence is essential to 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 the FNV had demonstrable support from a large portion of the cabin crew. There were petitions, signs of dissatisfaction with the works council structure, and a desire for union representation. Furthermore, the FNV had extensive experience in the aviation sector, was knowledgeable, and possessed sufficient clout.
According to the court, 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 do well to be aware of the limits to their contractual freedom. Anyone who systematically refuses to allow a representative union to participate in collective bargaining negotiations may face legal consequences—even if there is a well-functioning works council.
A works council can play a valuable role in negotiations over employment terms and conditions, but should never be used to sideline labor unions. That undermines the system of collective bargaining.
What does this mean for workers?
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. Any employer seeking to establish terms and conditions of employment without the union, but with the works council, runs a legal risk.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to assist you if you have any questions about collective bargaining agreements. Please feel freeto contact us.
April 2025
