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In some occasions an employer can be obliged to negotiate the terms and conditions of employment with the unions, even if it is customary within the organisation to conduct these negotiations with the works council. That was the outcome of a dispute between travel agent TUI and the union FNV.

What exactly was the dispute about?

At TUI, it was common practice to negotiate the primary conditions of employment for cabin crew with the works council. The works council had been given an extra right of consent for this purpose, which is possible under section 32 of the Works Councils Act. However, FNV itself wanted to sit down with TUI to negotiate these employment conditions. When TUI refused to do so, the FNV asked the court to oblige TUI to these collective bargaining negotiations.

The court ruled that TUI did indeed have to recognise FNV as a negotiating partner. TUI lodged an appeal at the Supreme Court against this ruling.

What does the Supreme Court rule?

As a starting point, an employer is not obliged to negotiate terms and conditions of employment with a union. It is up to the employer whether, and if so with whom, it wants to negotiate collective terms and conditions of employment. However, sometimes refusing to negotiate with unions on a collective agreement may be unlawful. Whether that is the case must be answered based on all mutual interests, taking into account all the circumstances of the case.

In the ruling, the Supreme Court lists some of those circumstances, such as:

a) The representativeness of the union,
b) the interests the union is pursuing,
c) the union’s expertise and experience in negotiations in the relevant industry,
d) the importance of primary employment conditions negotiations being conducted by negotiators who are independent from the employer,
e) employee support for the existing method of negotiating primary working conditions and the guarantees for employees attached to that method,
f) the circumstance that existing or future negotiations are aimed at either a collective agreement or another type of collective arrangement on working conditions,
g) The objectionability of collective action,
h) the weight of the objections put forward by the employer or the employers’ organisation for refusing to enter into negotiations with the union.

According to the Supreme Court, it is up to the trade union to state why it feels that the refusal to negotiate is unlawful.

The court ruled that TUI was not at liberty to refuse to negotiate with the FNV in this case. The Supreme Court – on slightly different grounds – reached the same judgment. The court’s ruling therefore stands.

What does this imply?

An employer used to negotiating primary terms and conditions of employment with the works council should be aware that refusing the unions a seat at the negotiating table may be unlawful. In some cases, the unions should be allowed to join the negotiations. This does not mean that a collective agreement with the unions must subsequently be reached. However, the trade union – unlike the works council – can call a strike to enforce their terms.