As a starting point, an employer is not obliged to negotiate with a union about collective employment conditions. A party may generally decide if, and with whom, they want to discuss collective employment conditions.
However, an employer's refusal to negotiate with a union over a Collective Labour Agreement (CLA) can be socially irresponsible, and thus unlawful.
Whether a refusal is unlawful in a specific case must be determined by the judge based on a balancing of interests, taking into account all circumstances of the case.
These circumstances include the representativeness and expertise of the union, the importance of negotiations on primary employment conditions being conducted by negotiators who are independent of the employer, the support among employees for the existing method of negotiating primary employment conditions, and the guarantees associated with this method for employees and the weight of the objections the employer has to refusing to negotiate with the union.
In this case, the court ruled that if FNV is sufficiently representative, TUI is not in principle free to refuse to negotiate with FNV. While the court established an incorrect starting point, this does not render its decision incorrect. The court made a balancing of interests involving all relevant circumstances of the case, which can independently support the court’s decision.
For the full ruling of the Dutch Supreme Court: ECLI:NL:HR:2024:673
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