4.2.8.6 Consequences of the scrutiny of collective agreements

217. As regards the consequences of the scrutiny, the Rechtbank Amsterdam seems not to be convinced as to which route to take to arrive at ineffectiveness of the problematic provision in the collective agreement. In one judgment it states that it is plausible that in main proceedings the clause in the collective employment agreement will be deemed invalid or that at least cannot be invoked1, whereas in another judgment the Rechtbank states that it is plausible that the contractual clause is null and void according to Article 13 WGBL2.3

In the event that a clause in a collective agreement is scrutinised, and part of it is set aside or declared to be null and void, the same mechanisms apply as in case of an individual employment contract discussed in the preceding section. In the cases concerning the KLM-pilots, the stewardess and the cleaner discussed above, it was demonstrated that the Dutch courts seem to apply Directive 2000/78 as the standard for scrutiny, occasionally complemented with the Dutch implementation measure, the WGBL. Since the Directive does not provide for a concrete civil remedy for the conflict of a clause with the Directive, it seems to be most natural to resort to the WGBL, which regulates private law relationships. Obviously, since the WGBL is on a par with the Directive, conflict of a clause with the prohibition of discrimination on the basis of Article 6(1) Directive 2000/78 equates to conflict on the basis of Article 7(1) WGBL.4 As indicated, Article 13 WGBL determines that clauses that are contrary to the WGBL are null and void. The nullity of a clause in a collective agreement, may result in the applicability of another clause in the collective agreement – e.g. if an exception to a general clause is null and void, this results in the application of the general clause.5 Alternatively, the same scenarios occur as those in relation to inapplicable legislation.6 That is, either ius dispositivum applies or a general clause can bring solace, such as the supplementary function of reasonableness and fairness – e.g. Article 7:611BW on good employership in conjunction with Articles 6:2(1) BW7and 6:248(1) BW).