Most people know what a collective agreement is, its benefits and which one applies to them. However, many people do not know the consequences if the employer does not comply with the collective agreement. You can read more about that in this blog!
Is compliance with the collective agreement mandatory?
A collective agreement sets out agreements on the conditions of employment of employees in a specific industry or within a company. Usually, the agreements contained therein are more favorable to the employee than the terms of employment resulting from the law. Examples include agreements on salary, notice periods, overtime pay, or pensions. In certain cases, the collective agreement is declared universally binding. This means that employers within the industry covered by the collective agreement are obliged to apply the rules of the collective agreement. In such cases, the employment contract between employer and employee may not deviate from the collective labor agreement’s provisions to the employee’s disadvantage. Both as an employee and employer, you should be aware of the collective agreement that applies to you.
If the employer does not comply with the mandatory agreements under the collective agreement, he commits a “breach of contract.” He does not fulfill the agreements that apply to him. In this case, the employee can go to court to ensure that the employer still fulfills its obligations. The workers’ organization also can claim fulfillment of the obligations in court. The employee or the workers’ organization can claim compliance and compensation for the damage resulting from non-compliance with the collective agreement in court. Some employers think they can avoid the collective agreements by making concrete agreements with the employee (in the employment contract) that deviate from the agreements in the collective agreement. However, these agreements are invalid, making the employer liable for non-compliance with the collective agreement provisions.
The Labour Inspectorate
Besides the employee and the workers’ organization, the Netherlands Labour Inspectorate may also conduct an independent investigation. Such an investigation can take place either announced or unannounced. This investigation may consist of asking questions to the employees present, temporary workers, representatives of the company, and other persons. In addition, the Labour Inspectorate may request an inspection of records. Those involved are obliged to cooperate with the Labour Inspectorate’s investigation. The basis of the Labour Inspectorate’s powers stems from the General Administrative Law Act. If the Labour Inspectorate finds that mandatory collective agreement provisions are not complied with, it notifies the employers’ and employees’ organisations. These can then take action against the employer concerned.
Finally, the collective agreement may contain a regulation or provision under which employers who fail to comply with the collective agreement can be fined. This is also known as a flat-rate fine. Therefore, the amount of this fine depends on what is stipulated in the collective agreement applicable to your employer. Therefore, the amount of the fine varies but can amount to hefty sums. Such fines can, in principle, be imposed without the intervention of a court.
Do you have questions regarding the collective agreement applicable to you? If so, please get in touch with us. Our lawyers specialize in employment law and will be happy to help you!