Increased salary instead of future increases to the salary under the collective agreement?

Year of publication

2011


Edition number

190


Reference

Subdistrict court of Hoorn, 22 November 2010, www.rechtspraak.nl, LJN: BO7906


Decision

An employee started work as a mechanic and salesman at a car dealership in December 2006. In the employment contract the collective agreement for Motor Vehicles and Motorcycle Companies was declared applicable.

On 01 October 2009 the employee fell sick and in December 2009 he sent the company a letter in which he claimed an increase on 01 April 2008 (3.5 percent) and on 01 February 2009 (3 percent). At a later stage he claimed a further increase as of 01 July 2010 (0.7 percent). The employer disputed this claim by countering that when the employment agreement was entered into, a higher salary was agreed to than the salary negotiated under the collective agreement, and that it was also agreed that the employee would waive, for a period of two years, any increases he might be entitled to under the collective agreement. Moreover, with respect to the salary increase as of 01 February 2009, the employer posited that it was agreed to with the entire staff that a salary increase would be waived due to the poor financial situation the employer was confronted with. The employee disputes that an agreement was reached with the employer on waiving the salary increases under the collective agreement.

When the employee instituted a claim for pay through the subdistrict court, the question of whether an agreement was reached on waiving salary increases was left open, because the employee is correct, the subdistrict court judged, in asserting that one could not deviate from the collective agreement. The fact that the collective agreement was declared applicable in the employment contract was not decisive in the opinion of the subdistrict court, given that one could in turn also deviate therefrom in a later agreement. As the car dealership is a member of BOVAG (the association of garages and car dealerships), while the employee is a member of FNV (the Dutch Trade Union Association), both of which entered into the collective agreement, the car dealership and the employee are bound to the collective agreement. Any stipulation that is contrary to the collective agreement is void. The same holds (needless to say) during those periods wherein the collective agreement has been declared generally binding. Because the collective agreement determines that the applicable salary will be con-tinuously increased, and because a higher salary than would be applicable on the basis of the salary scale and years of service is not contrary to the collective agreement, the employee’s claim was allowed. The employer must also pay holiday allowance, statutory interest and extrajudicial collection costs to the employee. The statutory salary increase on the grounds of late payment (normally 50 percent) was however cut to ten percent, because the employer believed, on the basis of information from BOVAG, he could act as he did and because the employee only requested the salary increase in December 2009.


Comments

The subdistrict judge properly motivated the judgement. Agreements that are contrary to the collective agreement are simply not valid, in any event when these are to the detriment of the employee. The subdistrict judge also referred to a ruling by the Supreme Court wherein it was determined that each component of the collective agreement must be correctly applied, and that one cannot counterbalance the various components therein.



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