Can an Employer Refuse to Negotiate with a Union?
Only negotiating with the works council? Why that’s not enough, according to the Supreme Court
In April 2024, the Dutch Supreme Court issued an important ruling on the role of trade unions in collective bargaining. The case involved airline TUI and trade union FNV. The central question: can an employer refuse to negotiate with a union about employment terms if those terms are already discussed with the works council (OR)?
This judgment touches the heart of collective labour law in the Netherlands. While employers and employees generally have freedom to decide with whom they negotiate, the Supreme Court imposed clear limits on bypassing unions in collective labour negotiations.
The case: TUI negotiated only with the works council
TUI reached agreements on key employment terms (such as salary and working hours) for its cabin crew through discussions with its works council. These agreements were included in the employee handbook, which formed part of individual employment contracts via a clause.
Union FNV attempted multiple times to initiate collective bargaining on behalf of the cabin crew, presenting petitions signed by hundreds of employees. However, TUI repeatedly refused to recognize FNV as a negotiating partner, involving only the OR instead.
FNV took the matter to court and demanded recognition as a collective bargaining party. Although the district court rejected the claim, the court of appeal, and later the Supreme Court, sided with the union.
Can an employer ignore a trade union?
According to the Supreme Court, that depends on the specific circumstances. In general, employers and employees are free to choose their negotiating partners. But that freedom is not unlimited.
If a union is sufficiently representative and is consistently excluded while trying to negotiate on behalf of a relevant group of employees, that may be unlawful, especially when the employer negotiates core employment terms solely with the works council and refuses union involvement, as in TUI’s case.
The role of the works council: supplementary, not a substitute
The ruling clarifies that a works council cannot replace a trade union in collective bargaining. While the OR is a legally recognized consultative body, it is closely linked to the employer and lacks the authority to organize industrial action or enforce agreements.
The Supreme Court stressed that employees have a right to representation by an independent trade union. That independence is crucial for ensuring fair and balanced negotiations.
Why did FNV win the case?
FNV demonstrated that it had broad support among cabin crew. It had submitted petitions, highlighted dissatisfaction with the OR process, and clearly expressed a desire for union-led bargaining. Moreover, FNV had extensive experience in the airline industry and the capacity to negotiate effectively.
TUI, on the other hand, failed to present compelling reasons for excluding FNV. Concerns about tougher negotiations or potentially higher wage demands did not outweigh the fundamental right to collective representation.
What does this mean for employers?
Employers should be aware of the legal limits on their freedom of contract. Refusing to engage with a representative union can create legal risk, even if a functional works council is in place.
The OR can play a valuable role in employment matters, but it cannot be used to sideline unions. Doing so undermines the framework of collective labour law.
What does this mean for employees?
If you want your interests to be represented by a union, this ruling is good news. It strengthens your position to demand collective representation by a union that truly speaks for you, especially when that demand is shared by your colleagues.
Conclusion
The Supreme Court’s ruling in the TUI vs. FNV case shows that employers cannot simply refuse to negotiate with trade unions. Trying to lock out the union and deal only with the works council carries legal risk, especially when the union has significant employee support.
This blog was written by Mr. Stijn Blom
Employment law attorney at expatlawyer.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight agreements and regulations – with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn’s page.
Expatlawyer.nl is happy to think along with you if you have questions about the topic of your duties as an employer. Feel free to get in touch.
June 2025
