Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee takes note of the comments of the Confederation of Netherlands Trade Union Movement (FNV) and the Government's reply thereto concerning the granting of protection and facilities to both categories of workers' representatives mentioned in Article 3 of the Convention.

The FNV observes that only members of works councils (set up, by law, in firms employing at least 35 workers) are entitled to the legal protection and facilities referred to in the Convention and that even if collective agreements can include provision of such facilities and protection in small businesses having less than 35 employees, the agreements do not cover all enterprises and do not give full protection because they are limited in time. The FNV considers that both categories of employee representatives mentioned in Article 3 should receive the facilities and protection set out in the Convention; it regrets that the Government, which had previously agreed with this approach, has now changed its position. It adds that discussions are being held in the tripartite Labour Foundation regarding the possibility of issuing a recommendation to employers to afford broad coverage, but the FNV believes that any such recommendation would not be binding and would be no more than a guide-line for negotiations.

The Government points out that the Convention, in Article 3, defines two categories of workers' representatives which may benefit from the provisions of the Convention; the Convention does not oblige ratifying States to grant protection and facilities to both categories, as is clear from the terms of Article 4. It states that it has determined, by legislation, which type of workers' representatives should be entitled to the benefits of the Convention, namely members of works councils.

The Committee notes that the Convention permits a certain flexibility in the choice of workers' representatives to enjoy its provisions, subject to the special protection of trade union representatives set out in Article 5. Given the clear wording of Article 4, the Committee considers that the present system does not infringe the requirements of the Convention. However, the Committee draws the Government's attention to the fact that since certain workers' representatives in small enterprises risk having no coverage - either by legislation or collective agreements - a criterion of reasonableness should apply to ensure that they are not denied the protection and facilities provided for in the Convention.