COLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT rovisions might place obligations on-usually- the indiv idual employer viz-a-viz the parties to the collective a greement or third parties(social funds, other employers within the same organisation or branch). Finally, the parties to the collect ive agreement can use the collective a greement to create bipartite institutions and funds ing and early retir provisions on the obligations of the parties to the collective agreement as well as on of decisions by the Dutch Supreme Court Q greements covered by the collective agreement. The position of third parties is based on case lat ed on case law, in particular num ber In general, a collective agreement is binding upon the parties to the agreement and any mem ber thereof. This means that the individual employer and employee are ound by an operational agreement when they are(become or were at the time of conclusion)members of the organisations which are party to the agreement 47 Any stipulations in the individual agreement which viol te the collective agreement are void and are automatically replaced by the relevant stipulations in the collective agreement. 48 Any lacunae are automatically filled with the collective stipulations.h this fashion, the individual agreement is modelled on the collective agreement. The indiv idual employee can(and in most cases must)rely on this remodelled individual agreement if he wants to claim performance by the individual employ er. If this incorporation theory does not suffice in order to guarantee enforcement, the employee can sometimes rely directly on the collective agreement itself. A good example of this latter mechanism is to be found in a case which came before the Supreme Court and which dealt with the probation period. According to the relevant collective agreement any probation period had to be agreed upon in writing, adding a fomal requirement to the legal requirements in the Civil Code. According to the Supreme Court the requirement in the collective agreement rendered an orally agreed rotation period void. Since a provision of this kind cannot be deemed to be corporated in the individual agreement, the indiv idual employee had to base the avoidance of the probation period on the collective agreement itself. So, in principle all normative provisions in collective agreements are deemed to become part of the indiv idual labour contract. It is in line with this corporation theory that horizontal stipulations in collective agreements are deemed to have an after-effect: they continue to shape the individual contract even after the expiry of the collective agreement. The after-effect lasts until the horizontal provisions are replaced quentagreement at the individual or collective level Collective a greements do not bind employees who are not members of a union, which is a party to the collective agreement: so-called non-organized or otherwise-organized workers. However, according to Art. 14 of the Collective Labour Agreements Act, an employer who is bound by a collective agreement is obliged to apply the agreement to his non-or otherwise-organized employees 4 9 HR 19 March 1976, NJ 1976, 407; HR 10 June 1983, NJ 1984, 147: HR 20 January 1987, NJ 1987, 936. On the absolute nullity of indi idualstipulatons which violate the collective agreements nd the position ofthird parties: HR27 March 1998, JAR 1998, 99 49 The provision does allow the parties t the collective agreement to agree otherwise, but thsCOLLECTIVE AGREEMENTS AND INDIVIDUAL CONTRACTS OF EMPLOYMENT 11 provisions might place obligations on - usually - the individual employer viz-à-viz the parties to the collective agreement or third parties (social funds, other employers within the same organisation or branch). Finally, the parties to the collective agreement can use the collective agreement to create bipartite institutions and funds for issues like vocational training and early retirement schemes. The Act contains provisions on the obligations of the parties to the collective agreement as well as on the position of the parties to the individual agreements covered by the collective agreement. The position of third parties is based on case law, in particular a number of decisions by the Dutch Supreme Court.46 In general, a collective agreement is binding upon the parties to the agreement and any member thereof. This means that the individual employer and employee are bound by an operational agreement when they are (become or were at the time of conclusion) members of the organisations which are party to the agreement.47 Any stipulations in the individual agreement which violate the collective agreement are void and are automatically replaced by the relevant stipulations in the collective agreement.48 Any lacunae are automatically filled with the collective stipulations. In this fashion, the individual agreement is modelled on the collective agreement. The individual employee can (and in most cases must) rely on this remodelled individual agreement if he wants to claim performance by the individual employer. If this incorporation theory does not suffice in order to guarantee enforcement, the employee can sometimes rely directly on the collective agreement itself. A good example of this latter mechanism is to be found in a case which came before the Supreme Court and which dealt with the probation period. According to the relevant collective agreement any probation period had to be agreed upon in writing, adding a formal requirement to the legal requirements in the Civil Code. According to the Supreme Court the requirement in the collective agreement rendered an orally agreed probation period void. Since a provision of this kind cannot be deemed to be incorporated in the individual agreement, the individual employee had to base the avoidance of the probation period on the collective agreement itself. So, in principle all normative provisions in collective agreements are deemed to become part of the individual labour contract. It is in line with this incorporation theory that ‘horizontal’ stipulations in collective agreements are deemed to have an ‘after-effect’: they continue to shape the individual contract even after the expiry of the collective agreement. The after-effect lasts until the horizontal provisions are replaced or annulled by a subsequent agreement at the individual or collective level. Collective agreements do not bind employees who are not members of a union, which is a party to the collective agreement: so-called non-organized or otherwise-organized workers. However, according to Art. 14 of the Collective Labour Agreements Act, an employer who is bound by a collective agreement is obliged to apply the agreement to his non- or otherwise-organized employees.49 46. HR 19 March 1976, NJ 1976, 407; HR 10 June 1983, NJ 1984, 147; HR 20 January 1987, NJ 1987, 936. On the absolute nullity of individual stipulations which violate the collective agreements and the position of third parties: HR 27 March 1998, JAR 1998, 99. 47. Wet CAO Art. 9. 48. Wet CAO Art. 12. 49. The provision does allow the parties to the collective agreement to agree otherwise, but this