If a provision is not mandatory, does that necessarily mean that it can be deviated by collective agreement? Are there any labour law provisions that should be immune from collective regulation? In this context, certain provisions that impose an additional obligation on the worker and/or restrict his fundamental rights are particularly problematic. [60] Arbitration clauses here, too, are a perfect example: the right of access to a court can be waived,[61] but can it be abolished collectively? Similar problems arise with respect to store closure clauses, which restrict the freedom of association of individual workers[63] and non-competition clauses that restrict the fundamental freedom of choice of a profession. [64] However, in order to be considered a collective agreement, the contract must also meet certain formal conditions. The contracting parties must be organizations with full legal capacity and the agreement must be notified to the Ministry of Social Affairs. [37] If the agreement is absent from these elements, it may still be legally binding, but it will not create the special effects granted to collective agreements by the 1927 Act. If the parties have no intention of creating a legally binding instrument at all, their agreement can at most be a gentlemen`s agreement. Disputes over the characterization of agreements between unions and employers have arisen mainly in the area of corporate restructuring. Agreements involving social plans for collective dismissal or restructuring are not always considered collective agreements within the meaning of the 1927 Act. [38] [51].
An individual agreement between an employer bound by a collective agreement and an employee who is not required is valid even if it contains provisions contrary to the collective agreement. However, the employer breached the collective agreement when entering into such an individual contract. 5 The scope of the collective agreements of Dutch law does not contain a specific labour code. Labour law issues are addressed in a wide range of legislation. The regulation of individual employment contracts, for example, is part of the civil code, while workplace safety and working time are governed by specific provisions. Legislation on collective agreements is also found in several statutes. The collective agreement itself is governed by the Collective Agreements Act of 1927 (Wet CAO). This Act contains the necessary requirements for the parties and the content of collective agreements, their legal effects and remedies for infringement. The entry into force of collective agreements is governed by Section 4 of the Wage Training Act (Wet op de loonvorming), which provides for the obligation to inform the Minister of Social Affairs of all collective agreements concluded.